Fan Fiction

Fan Fiction (FanFic) is a genre of amateur creative expression that features characters from movies, TV shows, and popular culture in new situations or adventures.

The vast majority of these stories and poems are written by fans with no commercial interest who disseminate their work over the Internet, email lists, or newsgroups. The word "Fan," however, might not be the most appropriate term since not all FanFic is created by people who are truly "fans" of the original work as the term is traditionally used. Regardless of whether FanFic authors are really fans, owners of original works often do not look favorably upon these works. In response, the owners of the rights often try to stop the creation of FanFic through cease and desist letters and the threat of lawsuit.

The First Amendment protects free speech, but there is also a copyright clause in the Constitution. These two legal rights are often in conflict, and so the rights of fan fiction writers to write and speak freely and the rights of the copyright owner must be balanced. Each situation can be researched and individually evaluated, but it is important to understand there are no easy answers as to who has a right to the characters. Copyright law is designed to encourage authors to be creative by rewarding their efforts and protecting their work from others who might profit unfairly. This right must be balanced by society's need to have others not be limited by previously published protected works. There is not a clear "right" and "wrong" side in the battle between copyright owners and fan fiction writers.

In order for a work to be protected by copyright, it must be an original creation set in a fixed medium.

An artist or author does not have a copyright in material borrowed from someone else. Also, stock characters (the sidekick) or plot lines (boy meets girl) are not copyrightable.

The requirement that works be in a fixed medium means certain forms of expression, most notably choreography and oral performances such as speeches, are not copyrighted, (unless they are being recorded contemporaneously). For instance, if I perform a Klingon death wail in a local park, my wail of death is not copyrighted, and someone else may come along and do the same thing the next day. However, if I film the performance, then the Klingon death wail does become copyrighted (since it is now "fixed" according to copyright law). Contrary to popular belief, I do not have to register my copyrighted work for it to receive copyright protection. In the United States, I only need to register if I'm going to sue.

The fair use doctrine says that otherwise copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is "fair use" or not, courts consider:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Parody is also fair use.

Under this doctrine, artists have been permitted to create and display their art even if it uses copyrighted works of others. See Court Allows Artist to Sell Barbie Art, for an example.

There is a strong argument that many fan fiction stories are transformative since they create a different persona and set of events for the character. To create a new story cannot be seen as the same as posting video clips on a website. There must be a balancing between protecting copyrights in order to encourage innovation by authors and between allowing works to be in the public domain to allow creative uses.

Whether a court will view this as the case for a particular work of fan fiction depends on how much of the story relies on copyrighted materials, whether the story is sold, or affects the market for the copyrighted work, and other factors. There is no easy answer to the question, which is why it is often a good idea to consult a lawyer who can assess the particular facts of your case.

If a Fan Fiction author uses copyrighted elements in someone else's work in his/her story, then the fan fiction may be a derivative work. There are many elements of a work that an author can borrow. The law, however, does not clearly define whether fictitious characters, worlds, histories and names are copyright protected.

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright in the work. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

So, a FanFic author who purchases a book and creates an animation of that book cannot claim that she owns the copyright of that book since she purchased it. Copyrights may be divided into mini-rights in different parts of the work and transferred but the law requires a written agreement for the assignment of any ownership interest. Authors are also generally allowed to terminate earlier transfers.

Copyright law gives an author the exclusive right to distribute to the public by sale or other transfer of ownership. This means that if a fan of Superman digitally scans images of Superman from comic books and makes them available on the Internet, then this marketing could be a violation of the right to distribute (regardless of whether it was for- or not-for-profit). (Note that if a fan purchases a copy of a Superman comic book legitimately, then the fan is free to sell of transfer that specific comic book without getting the prior consent of the copyright holder; this is called the "doctrine of first sale").

However, most FanFic works are not straight copies of another work; rather they are works that are often inspired by some book, movie or TV show. Therefore, most FanFic authors are worried about whether they have violated an author's exclusive right to reproduce or prepare derivative works, rather than distribution. In defense of their works, FanFic authors will often try to argue that their use constitutes fair use.

Marketing activities by the FanFic author can impact the issue of fair use. If the marketing activity is purely non-commercial, then this weighs in favor of the FanFic author.

In general, FanFic involves a combination of established characters, established "worlds" (i.e., the setting or universe relating to the established characters) and established histories (the events described in the work involving the characters in their worlds) from current works. What FanFic authors add could include new characters, new worlds and new histories. Another form of adding originality is by detailing (or extending) certain characters, parts of worlds and histories that received little attention by the original author. The major possible violations are therefore copying, performance or display of existing characters and plots, creation of derivative works without the copyright holder's consent and prohibited use of trademarks belonging to the original work.

It seems unlikely that a FanFic work would include no previous characters but it is not impossible to imagine. Take Tolkien's "Middle-earth" world for example: this world has been taken without the main characters and has been used in role playing games (RPGs) and video games (see the TSR example below). For these cases, it is important to remember that copyright does not extend to ideas. Therefore, incidents, settings or other elements which are indispensable, or at least standard, in the treatment of a given topic are ideas and cannot be copyrighted. For example, the Court of Appeals for the Second Circuit has held that "elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx." These "scenes a faire" are therefore unprotected. Likewise, the Seventh Circuit has held that mazes, tunnels and scoring tables are unprotected under the scenes a faire doctrine in video games like Duke Nukem.

The prevailing rule seems to be that a character is copyrightable separate from the original work if the character is "distinctly delineated." Authors can have a separate copyright protection for the characters in their works only if they have been developed and constitute original expression. Generic characters (the sidekick, for example) are not protected. Some courts require this delineation to be quite extensive, to the point that the character "constitutes the story being told." In Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d. Cir. 1930), however, the court held that the character needs simply be more than just a "type" and this is achieved when they are drawn in considerable detail. If characters with visual images are involved (i.e., cartoons, movies, etc.), then courts are more likely to allow copyright protection because the visual image combined with conceptual qualities gives courts a more concrete sense of character delineation. (See Rocky IV example below).

But what if these elements were not just ordinary scenese a faire? What if these worlds were elaborately filled with details? Under the character analysis above, these worlds and events would probably also receive copyright protection. Again, the distinction is that normal plots like boy-meets-girl cannot be copyrighted (just like how stock characters like the "sidekick" are not copyrightable), but the more detailed the plot is, the more it becomes protectible expression.

Copyright owners have the right to prepare derivative works based on the copyrighted work. In most cases the right to prepare derivative works is superfluous since when this right is infringed, the right to reproduction will also be infringed. For example, if a FanFic author creates a new story about Darth Vader, the author will have infringed both the derivative right and the right to reproduce that character.

As with a violation of the right to reproduction, the plaintiff will also need to show that the FanFic author copied from the original and that the new story is substantially similar to the original in expression. To be an infringement, the derivative work must be "based upon the copyrighted work," which refers to "a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." Thus, to constitute a violation of section, the infringing work must incorporate some portion of the original work (see Distorted Barbie example below). For example, a detailed commentary on a work or a musical composition inspired by a book would not usually constitute infringements of this right.

A credit serves as a disclaimer. Strictly speaking, disclaimers do not absolve an infringer from liability. However, disclaimers do serve an important function. Disclaimers explain the purpose and extent of the borrowing author's use and show that they recognize their "borrowing." Thus, disclaimers help appease original authors' fear that they will lose control over their works. The acknowledgment of the original source and ownership of the original work can reinforce the communal aspects of fandom and show that the borrowing authors respect original author's rights.

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright in the work. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

So, a FanFic author who purchases a book does not also purchase the right to create a derivative work based on that book, for example a new story or a comic.

A copyright could be invalid if the term of its protection has expired. A work that is created on or after January 1, 1978 is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death (otherwise known as

As mentioned in the legal introduction (see "Is there an infringement?"), a plaintiff must meet certain requirements in order to show that a FanFic author copied protected expression. In order to prove copying, it must be shown that the fan fiction author copied the work (either through direct or indirect evidence), and some of the copied elements are protected and that the "audience" of the work would also find similar elements. Since FanFic authors generally do not deny that characters and settings are borrowed ("copied"), as seen in their disclaimers, it is likely that copying will be found. Then you must raise the defense of fair use.

What happens if I lose the case? If the court finds that you unlawfully copied, it has several possible options. First, and most likely, an injunction could be granted to prevent the author from publishing and distributing the FanFic. The infringing materials could even be destroyed. The court also has the power to award monetary damages. The amount of damages would depend on the lost revenue suffered by the copyright owner and possible profits earned by the FanFic author. Generally, the loss of revenue is rare since FanFic does not draw audiences away from the original; rather, FanFic often serves to enhance sales of the original work. And if FanFic is not for profit, then it is unlikely that the author will have any profits to report. Since there is seldom lost revenue and profits, plaintiffs will often go for "statutory damages." This award can be between $200 (innocent infringement) and $100,000 (willful infringement) for each work infringed.

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Different companies have different methods in dealing with FanFic. Some, like Paramount Pictures, see that FanFic could actually help boost their sales and so encourage the writing of FanFic. Other companies are presumably waiting for more business information and legal clarity before making a decision. For example Universal, which owns the rights to Xena: the Warrior Princess, have yet to go after the numerous copyright violations involving what fans dub the "Xenaverse." The Universal approach is in sharp contrast to Fox Television and Viacom, both of whom resort to harsh cease-and-desist letters against unauthorized Web site creations by fans of such shows as "The X-Files," "Millennium" and "Star Trek."

In order for a corporation to win a cease-and-desist order against a FanFic author, it would have to prove that it was suffering financial damage, something that is hard to prove since much of FanFic actually helps boost sales. This has helped motivate companies to go after ISPs. Being caught in the middle of the battle, ISPs will often put pressure on the FanFIc authors in order to avoid liability, a decision which often leaves FanFic authors without any choice but to remove the supposedly offending material.

Different companies have different methods in dealing with FanFic. Some see that FanFic could actually help boost their sales and so encourage the writing of FanFic. Other companies are presumably waiting for more business information and legal clarity before making a decision. For example Universal, which owns the rights to Xena: the Warrior Princess, have yet to go after the numerous possible copyright infringements involving what fans dub the "Xenaverse." The Universal approach is in sharp contrast to Fox Television and Viacom, both of whom have resorted to harsh cease-and-desist letters against unauthorized Web site creations by fans of such shows as "The X-Files," "Millennium" and "Star Trek."

In order for a corporation to win a cease-and-desist order against a FanFic author, it would have to prove that it was suffering financial damage, something that is hard to prove since much of FanFic actually helps boost sales. This has helped motivate companies to go after ISPs. Being caught in the middle of the battle, ISPs will often put pressure on the FanFIc authors in order to avoid liability, a decision which often leaves FanFic authors without any choice but to remove the supposedly offending material.

As more companies deal with FanFic through ISPs, it is important for ISPs and FanFic authors to know what rights they have. The Digital Millennium Copyright Act ("DMCA") establishes a "safe harbor" from liability for ISPs that exercise no control over content other people provide. If your ISP fits under the safe harbor provisions, then it will not face monetary damages, only a possible injunction. Under the safe harbor provisions, you as the author are entited to notice that the ISP might take your story down, and you can issue a counter-notice claiming that your work is not infringing. For more on how the DMCA Safe Harbor counter-notification procedures can protect your work, click here<!--GET CatLink 14-->.

The DMCA also has certain other procedural requirements that allocate the burdens between copyright holders, ISPs and individuals. Specifically, the copyright holder has the burden to find the ISPs that carry the offending material. The ISP then has the burden to send notice to the offending users. The user then has the right to file a counter-notice for fair use or some other defense, at which point the ISP can remove itself and let the copyright holder and the user fight it out. If the ISP is found to be secondary liable (see "Is there an infringement"), then it pays no monetary damages and suffers only the possibility of an injunction. Nonetheless, ISPs generally prefer less liability and will often exert enough pressure on the individual such that the individual complies or is forced to find another ISP. With little resources, it is only expected that individuals face the brunt of this burden allocation. (See the DMCA section of this website for more information).

Trademark law is intended to protect two areas: 1) the protects the public's interest in being able to accurately ascertain the source of goods and services in the market; and 2) to protect a business's good will. Sometimes this takes the form of direct competition between two users of similar marks. Other times, someone who uses a confusingly similar mark may suggest an affiliation with the true mark owner even where there is no direct competition, which might lead consumers to wrongly attribute possible mistakes or poor quality in the good or service. In either scenario, however, it is important to remember that a good or service is involved. Also, the fact that a good or service is free of charge does not necessarily prevent liability. Thus, FanFic authors who actively distribute a good or service could face trademark liabilities.

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Copyright is a limited monopoly provided by the laws of the United States (title 17, US Code; see the "Copyright" section) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

1. copy (reproduce) the work;
2. distribute the work;
3. perform or display the work; and/or
4. prepare new (derivative) works based upon the work. A sequel to a movie, Rocky IX for example, is a derivative work.

When is a work copyright protected?

A work must meet a number of requirements in order to receive copyright protection. First, all works are required to be "original" and "fixed in a tangible form." The originality requirement is low and it is normally met as long as the work is not a copy of another work. This means that if I come up with some character that resembles Superman without ever having seen or heard of Superman, then my creation is treated as original.

Copyright protection for an original work is instantaneously or automatically secured when the work is first fixed in a tangible form. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrighted since it is not fixed in a tangible form. Someone else may come along and do the same thing the next day. However, if I film the performance, then the film is copyrighted.

Remember that ideas, facts and concepts are not copyrightable (since they are either not original or not fixed). A work might also be in the public domain if it was published before 1909 and the copyright has lapsed. So characters like Captain Nemo or Dr. Jekyll are in the public domain and are not copyrightable. Contrary to popular belief, one does not have to register her copyrighted work for it to receive copyright protection. In the United States, registration is only required for bringing a copyright suit.

A work must also fit under one of several categories such as literary, musical and dramatic works in order to receive protection. These categories are extremely broad so practically all works can fit under some category. For example, computer programs and may be registered as "literary works" and maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

What rights do copyright owners have?

As mentioned above, copyright owners have the exclusive rights to reproduce, distribute, perform or display their works and also to prepare derivative works. These rights, however, only extend to the protected expression (protected expression refers to expression that is original and fixed, as mentioned above). So a well-developed original character, like Scarlett O'Hara, is copyright protected, but a common story line, boy meets girl, is not.

For derivative works, protection only extends to new material. For example, imagine that a screenwriter creates a new adventure involving the Zeus, the Greek mythological god. The copyright of this movie might extend to the new plot and any new characters introduced (including new features of Zeus) but Zeus, as ancient mythology, is in the public domain and the screenwriter or her assignee cannot prevent another author from also using Zeus.

Who owns the copyright?

If the work is protected, then it becomes important to know who owns the copyright. A copyright can be owned by one author (the original author) or by several authors when the work is a joint work. If the work is a joint work, then all authors are co-owners and are treated like tenants in common, each having an independent right to use or grant a "non-exclusive" license. A corporation can also own works produced by its employees as "works for hire," or have creators assign copyrights to it. Thus, fan fiction authors could be dealing with individual authors such as Anne Rice or large corporations such as Fox or Viacom.

Now that many fan fiction authors publish on the Internet, copyright holders (regardless of whether they are individual authors or corporations) can easily use search engines to discover their characters being used in unauthorized or unapproved ways. Many owners have tried to stop that use, and as a result, fan fiction authors have received letters telling them to take their stories off-line (See cease and desist letters).

Is there an infringement?

Even if there is a valid copyright, there is still the question of whether that copyright was infringed.

Any word, name, symbol or device which is used (or intended to be used), to identify specific goods and to distinguish those goods from items sold by others and which indicates the source of the goods is eligible for trademark protection. A fan fiction author who writes a new action novel involving Star Wars characters with "Star Wars" in the title could be liable for trademark violation since "Star Wars" is a mark owned and registered by LucasFilm Ltd.

Is the mark protected?

A mark must be "distinctive" in order to receive legal protection. Many marks are "fanciful". These marks, like "Xena" or "Hobbit" are inherently distinctive. Other descriptive marks like "Greyhound" may indicate a generic thing, the breed of dog, or a specific company, Greyhound Bus Lines. To receive protection, the trademark holder must show that an otherwise generic word, Greyhound or Apple, has acquired a secondary meaning in the eyes of the relevant purchasing public.

Who owns the mark?

A party claiming ownership of the mark must be the first user of the mark in trade, and then continue to use it thereafter. To use the mark in trade is to use it in way (often "affixing the mark to the good or service) that allows consumers to rely on it to identify and distinguish the good or service. Further, a mark must also be "used in interstate commerce" in order for it to receive federal protection (as opposed to common law or state protection). This requirement is usually easy to meet - shipping goods across (or even within) state lines will often satisfy. For example, Mickey Mouse as a trademark satisfies this requirement since it has been used across the country.

What rights do trademark holders have?

A trademark owner has the right to use exclusively, or to license the name or likeness of his character to avoid customer confusion and to prevent others from profiting off of the owner's intellectual property. For example, you can't market "Star Wars ray guns", because LucasFilm owns the right to that name, and customers may be confused into thinking that your ray gun is sponsored or produced by LucasFilm.

This right is usually geographically limited to first user's area of use plus an amorphous area of expansion. A second user can often use the same mark in a different area with "good faith" (i.e., if the second user didn't know of the first use). Good faith and notice is very hard to prove. The rules change somewhat when a mark receives federal protection. With federal registration, there is "constructive notice of use," meaning a second user is presumed to know of the first user. But if it is the second user who registers the mark and receives federal protection, then the first user is allowed to use the mark in its limited area only.

When is there a trademark infringement?

The primary question in a case of alleged trademark infringement is whether there is a likelihood of confusion (not actual confusion) for customers. Some factors considered when answering this question include: similarity of appearance between the marks; similarity of sound; similarity of meaning; similarity of purchasers; similarity of marketing channels; sophistication of purchasers; evidence of actual confusion; manner of presenting the mark; strength of the mark; and similarity of products.

There is another type of infringement, too, called trademark dilution. Under this doctrine, the owner of a famous mark is entitled to stop you from commercial use of a mark or trade name, if that use begins after the famous mark has become famous and harms its distinctive quality. Walt Disney has used this concept to stop pornographers from using Snow White or Sleeping Beauty in their films. Fan fiction authors who distribute their work commercially may be accused of trademark dilution in addition to other intellectual property violations.

Is there a defense against infringement?

Like copyrights, there are some defenses available to counter a trademark infringement. For example, a trademark action will not stop an author's deliberate parody of the mark. Also, a mark is no longer valid if it becomes generic or is abandoned. There is also a limited fair use defense under trademarks.

What happens if I'm found to have infringed?

If no defense is allowed, then injunctions and monetary damages are available against the infringer. Also, if "willful violation" is found, then treble damages might also be awarded.

Copyright law gives an author the exclusive right to distribute to the public by sale or other transfer of ownership. This means that if a fan of Superman digitally scans images of Superman from comic books and makes them available on the Internet, then this activity could be a violation of the right to distribute (regardless of whether it was for- or not-for-profit). (Note that if a fan purchases a copy of a Superman comic book legitimately, then the fan is free to sell or transfer that specific comic book without getting the prior consent of the copyright holder; this is called the "doctrine of first sale").

In defense, our fan who copied the Superman images could argue that the copy constitutes fair use. In this argument, "if" and "how" the fan distributes the copied images could affect the outcome of the fair use defense. For example, for-profit marketing activities, as opposed to not-for-profit uses, by the fan often has an adverse affect on fair use.

An audiovisual work can be covered by several overlapping "intellectual property" rights. These might include:

• Copyrights in the images, story, musical compositions, and sound recordings
• Trademark in the name of a series or producer
• Rights of publicity for the actors

Age verification has no effect on copyright claims. The validity of a copyright has to do with the similarity between the alleged infringing work and the original work, not with its suitability for minors.

No. Courts are not likely to bias you for any particular type of speech. The content of your FanFic, adult or not, is your choice. To write and speak freely is a major underlying tenet in our constitution, and, when balanced with the concerns of the copyright clause, it enables you to write about what you want to.

Yes. However, sexually explict materials receive different levels of First Amendment protection. For example, child pornography and obscenity are not protected by the First Amendment. In Miller v. California (1973), the Supreme Court, in a 5-to-4 vote, ruled that material could be banned as obscene if it met a three-part test:

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
2. The work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.
   

Material that meets all three parts is obscene and outside of First Amendment protection. Under the decision, only "ultimate sexual acts" could be forbidden, and relevant community standards were local, not nationwide.

Non-obscene pornography, indecent and other "adult" materials do receive some level of First Amendment protection.

Age verification warnings may limit the possibility of a minor having a chance encounter with unsuitable material. Some sexually-explicit content providers use age verification because they feel that industry-wide self regulation will help quell the congressional demand for stricter online content regulation.

Most states have laws that prohibit the distribution of sexually-explicit material to underage people. In California, for instance, it is a crime to distribute material "to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor..." Cal. Pen. Code