Intellectual Property Law
Fan Fiction's Fair Use of Original Material
The genre of Fan Fiction is comprised of literary works written by fans who add to a story or characters created by someone else. Fans take it upon themselves to continue what the original author started. Though fan fiction has exploded on the Internet it started decades ago and became popular in Star Trek centered science fiction magazines. Now, millions of fan fiction works now live on thousands of Internet pages. To some, fan fiction may be seen as the equivalent of music and movie file sharing.
To be called “fan fiction” a work must copy necessary elements of the original story. Like music and movies, the original work that a fan fiction writer copies from is protected by copyright law. However, an important difference between file sharing and fan fiction is that most fan fiction writers do not sell their works. Works of fan fiction are generally distributed freely over the internet. Some authors, including Harry Potter author J.K Rowling and Star Wars creator George Lucas, encourage fan fiction as long as the stories are free and the writers follow certain guidelines, such as no pornography.
The Copyright basically protects any original work by granting to the author the exclusive right to produce and distribute the work, and is found in the Constitution. However, the Copyright was also created to “promote the Progress of Science and useful Arts” so unauthorized copying is allowed for purposes such as commentary, criticism, review, teaching or news reporting. Fan fiction must then fall under one of these uses to be legal.
To aid in determining which copies “promote the Sciences and useful Arts” Congress created the “Fair Use” doctrine. The rule lists four factors which the courts may look at to determine whether the copying was fair. These four factors cover the intended purpose of the secondary work, the nature of the original work, the amount and significance of the copied portion, and whether the secondary work affects the market for the copyrighted work. In general, a non-commercial use of copied material has a greater chance of being found a fair use than a commercial use does.
Fan fiction’s intended purpose is to add to an original story. The writers take an existing story and add their own personal and preferred view of the characters and the story. Fan fiction is not written to replace, nor can it replace, the original work. In many cases fan fiction increases the popularity of the original and fan fiction writers themselves eagerly await the publication of new original stories so they can add to them.
Another key concept in copyright infringement which is very important to the legality of fan fiction is “transformative”. Does the work transform the original work into a separate work or does it merely copy and repackage it? A work is clearly transformative if the quantity or quality of the fan’s contribution outweighs the original material that is copied.
The basis of fan fiction is that the writer adds to the story. Many works of fan fiction take the existing characters and add to them or change them, as well as continuing the story from where the original author left off. Some pieces of fan fiction involve changing the character’s sexual orientation, or placing the original characters in a new world. There is also every fan’s favorite, the ability to change parts of the original story that you do not like. If the author kills off your favorite character a fan can write a new story in which the character lives.
As you can see fan fiction is written to complement and add to an original work, which is what the copyright clause aims to promote. As long as the authors freely distribute their works fan fiction writers should not fear a lawsuit from the copyright holders. Once a fan fiction writer aims to capitalize on their contributions they may have a difficult time convincing a court it is a fair use copy.
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