The aphorism “Imitation is the sincerest form of flattery” is typically attributed to Charles Caleb Colton. If Colton studied law, clearly he was absent the day “Copyright Law” was discussed. When it comes to writing, imitation is frowned upon and there are many traps and obstacles for the unwary “fan fiction” author.
Merriam Webster defines fan fiction as stories involving popular fictional characters that are written by fans of such works and often posted on the Internet. If you are, or are considering becoming, a fan fiction writer the following “legalisms” may be of interest.
When it comes to writings, most works are copyrighted by the author or the publisher of the work. The Copyright Act of 1976 gives the owner of the copyright an exclusive right to reproduce, adapt, distribute, perform and display his or her work. Although a few exceptions to this exclusive right are permitted, essentially anyone using another’s copyrighted material in their writings without the permission of the copyright owner is in violation of the copyright law.
You may have viewed one or more episodes of Star Trek, Galaxy Quest, Spaceballs, Battlestar Galactica, The Hitchhiker’s Guide to the Galaxy or Star Wars.
Did you know that Twentieth Century Fox once sued Universal Studios alleging that material used in Battlestar Galactica infringed on copyrighted material from its productions of Star Wars? Did you know that Paramount Pictures and CBS Studios filed a lawsuit on December 15, 2015 against Axanar Productions and Alac Peters, the creator of the fan film Star Trek Axanar, alleging Axanar, Peters and others involved in the production of the fan film have infringed on copyrighted material used in Star Trek?
Thus far Galaxy Quest, Spaceballs and Hitchhiker’s Guide to The Galaxy have not been involved in such litigation, but that may only be a matter of time. Writers of fan fiction that imitate popular fiction and, or, fictional characters in popular novels, movies, or other copyrighted works could face similar litigation.
A writer of fan fiction may believe that the so-called Doctrine of Fair Use permits his or her use of the copyrighted material. This is not usually the case. The doctrine was created by the courts and, although it may be cited as a defense by an author being sued by the owner of the copyright alleged to have been infringed upon, it is applicable only under certain limited circumstances. Further, the Doctrine is a moving target and decisions continue to be made on a case-by-case basis as to its extent.
The Copyright Act, 17 USC ß107, itself, only sets out only limited guidance with respect to fair use, providing but a few example of factors to be considered in determining fair use.
ß107 provides that in determining whether the use made of a work in any particular case is a “fair use”, the factors to be considered are to include the following:
(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.
At present the Act states that it is not an infringement of copyright if the material is used as criticism or for comment in news reporting, or used in teaching, scholarship, or research. Further, the use of unpublished copyrighted work may be found to be within the ambit of fair use only if such a finding is made upon consideration of all of the four elements set out above.
Insofar as the “purpose and character of the use,” the courts consider such factors such as whether the new work is commercial in nature, whether it is for a productive use such as news reporting, and whether the new work is transformative.
As to the “transformative” nature of the work, the courts appear to consider whether the material taken from the original work been changed by adding new expression or meaning or value to the original by “creating new information, new aesthetics, new insights, or new understandings.” The greater the changes from the original, i.e., the greater the transformation or deviations from the original, the less likely courts would find that the author of the original has suffered harm.
A writer may claim that his or her writing used the original in the form of a parody. If the purpose of his or her writing is to make fun of the original writing, one of the tests used is that the audience must be able to identify the target of the parody.
For example, Margaret Mitchell’s estate sued Alice Randall [no relation] alleging she had violated its copyright of Mitchell’s novel Gone With the Wind when Randall authored The Wind Done Gone. In her defense of her work, Randall contended that The Wind Done Gone was a parody of Gone With the Wind and written from the prospective of a slave. The 11th District U.S. Court of Appeals ruled in Randall’s favor, holding that the book, which was published in 2001 by Houghton Mifflin, was protected as a parody of a well-known work. It was also reported that the estate and Houghton Mifflin entered into a settlement whereby, among other things, it was agreed that Houghton Mifflin Co. could to continue to distribute The Wind Done Gone if it was labeled “unauthorized parody.”
There are significant and serious consequences that could result if an author is found guilty of copyright infringement. The infringing author is liable for the actual dollar amount of damages and lost profits suffered by the copyright owner. The law also sets statutory damages “in a sum of not less than $750 or more than $30,000 as the court considers just.” In addition the infringing party pays for all attorneys fees and court costs. Last, but not least, a party may found guilty of criminal infringement where the infringement is determined to have been “for purposes of commercial advantage or private financial gain.”
Another potential problem for the fan fiction author is that “characters” in a work may be protected by a copyright independent of copyright covering the work in which they appear. The author of the original work may have obtained written permission to use the copyrighted character in his or her work, but his or her giving permission to a fan fiction writer to use of his or her work does not give the fan fiction author lawful authority to use the copyrighted character in his or her work unless written permission from the copyright owner is first obtained.
There is a posting on the Internet entitled Re-Writing the Classics: What Are Your Fan fiction Rights? that included a section titled The Legal Dos and Don’ts of Fan fiction. The item concludes with the observation “When creating within a fandom, use your head to make decisions about what is appropriate and what isn’t appropriate and you likely won’t find yourself in trouble. It’s also important to note that if you are creative enough to take pre-existing characters and create new stories, you are probably creative enough to make your own original characters.”
Finally, consulting with an attorney familiar with Intellectual Property Law is always advisable before publishing fan fiction, an area of law that is developing and which is by no means settled.
N.B. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material here is presented with the understanding that the author and the publisher are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.
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Harvey Randall formerly served as Principal Attorney, New York State Department of Civil Service. He also served as Director of Personnel for the State University of New York system and as Director of Research, Governor’s Office of Employee Relations. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School. Randall maintains a law blog of the same name focusing on New York Public Personnel Law.