Fan fiction and fan art are both enormous components of our popular culture, a way we retell our favorite stories just as humans have always retold myths and legends. But sometimes creators, publishers, and studios claim that works of fan art and fan fiction violate their copyright. So is that Supernatural fanfic you're working on legal, or should you worry about the lawyers coming a-calling?
Top painting: Besame Mucho by Isabel Samaras, and a fine argument for fair use.
This is a question that gets asked a lot in the comments and warrants a detailed discussion. Fan works are an important part of our cultural landscape. Retelling stories and remaking artworks offers us new perspectives on familiar cultural works, and it's part of our nature as human beings to imagine different versions of the same stories, "what if" scenarios, and old tales given fresh voices. Many content creators recognize the value of fan works in creating a thriving fan community; they see that fan fiction and fan art can create a further market for their creative products. But there are plenty of creators who resent fan works across the board, and sometimes even the most understanding creator may encounter fan works that step over the line from homage to competition. So how can you tell when you're legally in the right?
In addition to looking at US statutory and case law, I consulted Professor Rebecca Tushnet for this piece. Professor Tushnet is a professor at the Georgetown University Law Center, where she teaches intellectual property, advertising, and First Amendment law. She also happens to enjoy writing fan fiction and is a board member at the Organization for Transformative Works, a nonprofit organization that promotes, supports, and provides legal advocacy for fan works. Professor Tushnet has also spoken and written a great deal on fan works, including an article for the Loyola of Los Angeles Entertainment Law Journal titled "Legal Fictions: Copyright, Fan Fiction, and a New Common Law," which informed some of the information herein and which I highly recommend reading. Huge thanks to Professor Tushnet for taking time out of her busy schedule to talk fan works.
For the sake of this piece, we're just going to stick to copyright under US law. This is all, for the record, purely informational and is not in any way legal advice. If you need advice on your own fan work, I've included organizations you can contact in this post.
What can be copyrighted?
First things first. In order to have violated a copyright, there has to be a copyright in the first place. So how is a copyright created? Well, you receive a copyright on an original work at the moment that the work is "fixed in a tangible medium of expression." What that means is that, as soon as you have written down, drawn, typed out, filmed, or otherwise recorded your work, it is yours under the law and you possess certain exclusive rights to it. If something is not fixed, however, it is not copyrighted. For example, an improv performance would not be itself copyrighted, but if that same performance were filmed, then the participants would hold a copyright on the performance. If a performance of a play isn't filmed, then that particular performance isn't copyrighted, but the script, which has been fixed digitally or on paper, is copyrighted. It doesn't matter if the work has any kind of artistic merit; the greatest works of literature and the lowest forms of entertainment are all eligible for copyright protection.
Before 1989, US copyright law required creators to publish works with a copyright notice, and before 1978, creators had to file for a copyright renewal after the initial 28-year term. However, obtaining and retaining copyright is now an automatic practice. Under the current US statute (US Code Title 17), you own a copyright on your fixed work from the moment you fix it, and the copyright lasts for the life of the author plus 70 years. (A work for hire, however, such as the work performed by many comic book writers and artists for DC and Marvel, has a term of 95 years from publication or 120 years from creation, whichever comes first.) Although registration is no longer required, it does have certain advantages. For example, you cannot bring an action for infringement until you have registered a copyright, and you cannot receive statutory damages or attorney's fees from an infringing party unless you registered your copyright prior to the infringement or within three months of publication (unless the infringed upon work is unpublished).
Copyright is meant to cover the actual creative work, not abstract ideas. We have patents to cover ideas and copyrights to cover creative expression. However, that protection extends beyond the literal text of a work. Where fan works are concerned, we're mainly interested in character copyrights.
To a certain extent, creators have a copyright on their characters. If I'm writing a story about Harry Potter, for example, J.K. Rowling's copyright definitely comes into play. The case law on this is a bit murky, though. After all, in the 1954 case, Warner Bros. Pictures v. Columbia Broadcasting System, the Ninth Circuit ruled that CBS could continue to broadcast stories about Sam Spade even after Dashiell Hammett sold the rights to The Maltese Falcon and all of its characters to Warner Bros. The reasoning was that the test of whether a character is copyrighted is whether the character "constitutes the story being told." However, the fact that Warner Bros. and not Hammett was the plaintiff in this case was probably key. The court didn't want "the sale of the right to publish a copyrighted story [to] foreclose the author's use of its characters in subsequent works." That is to say, they didn't want the sale of The Maltese Falcon to result in the absurdity that any sequels Hammett himself wrote would infringe on a his original story. A later case, Anderson v. Stallone, held in part that the characters from the Rocky films were a copyrighted characters independent of the movies in which they appear.
On a practical level, Professor Tushnet notes that "the boundaries are really super fuzzy. So in general, when courts face an issue like that, they tend resolve them as matters of fair use. They just assume that there's copyrighted character and then analyze what is the fair use."
But what if the character I'm writing about is sort of Harry Potter, but sort of not Harry Potter? Well, in that case, we do have to look at your character and to what extent the character you're writing about constitutes the original story. Metro-Goldwyn-Mayer v. American Honda Motor Co. dealt with a Honda commercial featuring a James Bond-like character making a high-speed getaway. MGM claimed that the commercial infringed on its copyright on the Bond character as depicted in the films. The court noted that the Honda commercial, like the James Bond films, stars a handsome, tuxedo-wearing British-looking man with a gorgeous woman in tow who is on the run from grotesque villains. Beyond that, several visual elements appeared to have been directly lifted from individual Bond movies. The court explained, "In sum, the extrinsic ideas that are inherent parts of the James Bond films appear to be substantially similar to those in the Honda commercial."
The 1930 case Nichols v. Universal Pictures Corporation, with an opinion authored by the famed Second Circuit judge Learned Hand, held that no one may hold a copyright on stock characters. Rather, characters have to be "sufficiently delineated" in order to be copyrightable. (Says Hand, "If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress.") So a story about a pre-teen boy learning how to do magic at a boarding school won't necessarily infringe on a Harry Potter copyright. But where do we draw the line?
Professor Tushnet offered this analysis, noting that you can apply these tests to both a story's character and its setting. "It's all about the specifics," she explained. "So, the basic idea of having Starfleet, of course, is completely unprotectable. And having people who are sort of like the Chinese and people who are sort of like the Russians would again be completely unprotectable. The more you adopt from Star Trek specifically, the closer you get to infringement if it's not fair use." So it comes down to a question of what makes Harry Potter specifically Harry Potter and not just another boy wizard.
And what about visual representations of a character? If I draw a picture of Korra without telling a story about Korra, do I have to deal with the copyright holders of The Legend of Korra? Well, we have one case straight from comics. 1978's Walt Disney Productions v. Air Pirates involved the underground comic Air Pirates Funnies. The comic starred a mouse named Mickey who looked an awful lot like Disney's mouse but who engaged in behavior never seen inside a Disney cartoon. The California District Court stated that "a comic book character, which has physical as well as conceptual qualities, is more likely to contain some unique elements of expression [than a literary character does]." Other courts have cited the Air Pirates as standing for the idea that creators have a right to visual representations of their characters. That means that an image of Korra — or any other graphically represented character — is subject to copyright.
So, you've decided to go ahead and write that Harry Potter fan fiction or draw that picture of Korra. Are you illegally infringing upon another person's copyright? Not necessarily. Our next step is to look at fair use.
Copyright grants the holder certain exclusive rights to their intellectual property, but the common culture has a right to fair use of a work. 17 USC § 107 explicitly states that use of a copyrighted work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." This builds fair use into US statutory law, but that fair use isn't clearly defined. It's up to courts to examine each case and apply relevant case law, which can make the line between infringing use and fair use hard to draw. But we can examine fan fiction under the four factors for fair use outlined in the statute:
(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.
Purpose and Character of the Use
So let's look at the two examples mentioned early, the fan fiction story about Harry Potter and the fan art of Korra under the different fair use factors.
First off, are you selling these works or otherwise profiting from them? In Sony Corporation of America v. Universal City Studios, the famous VCR case, the Supreme Court found that, because home recording was a personal, noncommercial use, it was permissible, even though it fell short on every other aspect of fair use. Noncommercial uses are far more likely to fall under fair use than commercial uses. Professor Tushnet has found this to be the case on a practical level, saying, "Especially for noncommercial stuff, fair use offers plenty of protection [for fan works] now."
Meredith McCardle's article "Fan Fiction Fandom, and Fanfare: What's All the Fuss?" published in the Boston University Journal of Science & Technology Law, casts a bit of doubt on this blanket view of fan works posted for free online as fair use, although she notes that in the Suntrust case (discussed in greater detail below), the court identifies The Wind Done Gone as commercial by noting that Randall chose to sell it as a book rather than choosing "to publish her work of fiction on the internet free to all the world to read," implying that works published for free online are noncommercial under a fair use analysis. McCardle also notes that, because free fan fiction has been tolerated for so long, fan fiction authors have a stronger case for claiming it as noncommercial fair use.
So is it illegal to sell your fan work? Not necessarily. It is possible to commercialize fan works, especially when those works critique or parody the original. The case that hits home just how securely parody fits within fair use is Campbell v. Acuff-Rose Music, which held that 2 Live Crew's rap parody of Roy Orbison's "Pretty Woman" was a legal, non-infringing parody, even though their use of the song was clearly commercial and used substantial amounts of the original song. A more literary case is that of The Wind Done Gone, Alice Randall's novel that retells Gone with the Wind from the perspective of a Tara Plantation slave. Although the 11th Circuit in the resulting court case Suntrust v. Houghton Mifflin Co. didn't actually rule that the book was a fair use parody, it did vacate an injunction against the book's distribution, stating that it was possible that a carefully written parody, even one that borrows so heavily from its source, could be a legitimate fair use. The case was ultimately settled out of court.
So perhaps you want to skewer Rowling's original text by retelling the Harry Potter story from Draco Malfoy's perspective, portraying Harry Potter as a rich, popular jock who always gets his way. The more you transform and comment on the original text, the more likely you are to create a work that falls under fair use, even if your work is commercial. Consider the numerous Twilight spoofs on the market.
Regardless of whether your work is commercial or noncommercial, a court would also look at whether the work is transformative, whether you alter the "expression, meaning, or message" (as the Campbell decision puts it) of the original content through your use of the copyrighted material. Parody and critique are transformative uses, but they are not the only examples of transformative use. When determining whether a use is transformative, we want to look at the how the new use impacts our view of the original work. Again we look to professor Tushnet, who offers this description of fan art transformation in her article "User-Generated Discontent: Transformation in Practice," published in the Columbia Journal of Law and the Arts:
Transformativeness in fanworks takes many forms, from critique to celebration to reworking a text so that it better addresses the concerns of a specific audience. For example, fanworks based on television shows often rework the canonical versions to focus on the aspects that interest the female audiences disdained by network television. In general, noncommercial fan communities routinely reward what might be called transformation by excavation – new works that succeed creatively by illuminating something about the originals.
Going back to the James Bond Honda commercial, Honda did little, if anything, to transform the representation of James Bond. He was still wearing the same clothes, still dodging the same foes, and performing many of the exact maneuvers he performs in the movies. Honda did nothing to alter or change that "original" (even though it's not original) conception of James Bond. This suggests, for example, that telling the further adventures of Harry Potter while aping the style of JK Rowling is less likely to be viewed as a transformative work, while a series of stories that explore what the minor characters were doing over those seven years at Hogwarts would be a stronger transformative work.
But is that Draco/Harry slashfic you're working on transformative? Aaron Schwabach, a professor at the Thomas Jefferson School of Law and author of Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection says that yes, this sort of work is more likely to be protected as transformative. After all, he notes, Harry and Draco aren't behaving like Rowling's characters if they're getting all smoochy with each other. However, it's that very sort of transformation that will earn you the ire of certain creators.
Interestingly, one of the few court decisions that discusses the transformative nature of fan works concerns Rowling's books. Warner Bros. v. RDR Books dealt with Warner Bros. and Rowling's attempts to enjoin the publication of Stephen Vander Ark's The Harry Potter Lexicon. The court found in favor of Rowling and Warner Bros., but not because it deemed an encyclopedia of Rowling's world insufficiently transformative. The Lexicon took too much of Rowling's prose without citations. In the opinion, the court explained, "While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon's purpose of aiding readers of literature generally be encouraged rather than stifled." However, the Lexicon is transformative because it is a reference; fan fiction is unlikely to be transformative in the same way.
So what about that drawing you want to do of Korra? You could parody or critique some element of her visual representation or her story. One excellent example of critiquing artwork Professor Tushnet shared with us is Kevin Bolk's reinterpretation of The Avengers movie poster, which twists all of the male character into Black Widow's "booty shot" pose. She noted that even though the piece substantially copies the movie poster as well as the visual representations of the individual characters, it clearly comments on the way Black Widow is being portrayed compared to her male counterparts and would be a permissible commercial fan artwork. "It offered a critique," she explained. "It pointed your attention at what was wrong about it [the original]. So if you sold that, I would expect the courts to find it was fair use."
What about selling a picture Korra drawn in your own style? "I think that is a harder call," Professor Tushnet said. "You would have to make a case-by-case analysis. One thing you would want to know is to what extent are people interested in that particular artist's take on the character. I think that it's hard to say as a blanket rule how a court would see commercializing that."
A brief note on parody. There is, understandably, a great deal of confusion about what constitutes a legitimate parody. Parody means that you are using a work in order to criticize that same work. If you're using the work to critique something else, that is satire. For the purposes of a fair use analysis, satire is treated as non-parody, although it is still possible for a satire to fall under fair use. Whether something might be both parody and satire is beyond the scope of this discussion. Also, as The Wind Done Gone case indicates, humor is not a necessary element of parody. Conversely, humor doesn't automatically make something a parody.
Nature of the Copyrighted Work
How you use a copyrighted work matters, but so too does what copyrighted work you use. Fiction gets more protection than non-fiction, so if your fan fiction is based on a biography rather than a novel, you're less likely to create an infringing work. The court in Warner Bros. stated that "highly imaginative and creative fictional works" like Harry Potter are particularly deserving of copyright attention. However, unpublished works receive greater protection than published ones, meaning it's legally more dubious to create unauthorized fan fiction based on the unfinished fantasy manuscript sitting in your roommate's desk drawer than on Harry Potter.
Amount and Substantiality of the Portion Used
How much you copied can also be a factor. Did you take a teeny little bit of the Harry Potter universe — the school, the rules of magic, a couple of characters — or did you essentially rewrite the books while inserting your own Mary Sue? There's no rule about just how much is too much, but how much you use is one of the factors courts examine in determining fair use. However, as we saw with The Wind Done Gone and the "Pretty Woman" cases, you can take a substantial amount of the original work for parody and critique, although using the minimum amount of the work necessary for your parody creates the strongest case.
Effect of the Use upon the Potential Market
Market harm and potential market harm are biggies, and whether a work is considered a legitimate fair use often hinges on a whether a court determines that use harms the market for the original work. Let's say you turn you sell me your drawing of Korra, and, because I now own a Korra drawing, I'm not going to buy one licensed by Nickelodeon. If you copy a work "verbatim" for commercial purposes, there is a presumption that you are causing market harm, but in other cases, the burden would be on Nickelodeon to prove that you are either causing it market harm or, if it hasn't yet entered into the Korra art business, that you would harm it if it entered that market. For example, perhaps you gave me the Korra drawing, or I purchased it specifically because I wanted your Korra drawing, not someone else's (implying that it was somehow transformative); either of those details would shift the analysis. If your fan work is found to be in competition with and harming the market for the original, that can be damning to your claims of fair use.
But market harm applies only to works that compete with the original, not works that kill your appetite for the original. If you sell me a Harry Potter parody that so powerfully criticizes Harry Potter that I never pick up a JK Rowling book again, that does not contribute to a finding of infringement. In that case, you haven't harmed the market by copying the work but by contributing your own ideas and interpretations of the work.
To sum up fair use
As you can see, there is a lot of balancing at work in the fair use analysis, and that balancing act is made more difficult by the lack of case law surrounding fan works. There are few bright line rules, but we can see that the strongest cases for fair use involve fan works that are noncommercial and transformative while borrowing a little as they require from the original works and that do not compete with the original works in the marketplace.
What rights do you have to your fan works?
So you've written your Harry Potter fanfic masterpiece. Does that mean you own the copyright on your fan fiction? A work based on an earlier work, such as an adaptation, sequel, or translation, is termed a "derivative work." One of the rights granted to copyright holders is to control the creation of derivative works, although, as we've noted, fair use may be a defense in certain cases. But if your work is fair use, do you hold a copyright on the original elements of your work? Consider the case of Timothy Burton Anderson, a screenwriter who wrote an unauthorized, unsolicited treatment for Rocky IV. Anderson later sued Stallone and MGM, among others (in the aforementioned Anderson v. Stallone), claiming that portions of his treatment were used in the final Rocky IV script, for which he was never compensated. The court held that Anderson's treatment was a derivative work, and therefore Stallone held the copyright on that work. Anderson attempted to argue that he held the copyright on the original portions of his script, but the court rejected his argument.
The statutory provision 17 USC § 103(a) states that "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully." While 17 USC § 103(b) states the creator of a derivative work receives a copyright on their contributions to the work, while the author of the original work retains their ownership of any preexisting material. What that indicates is, if your fan fiction represents an unlawful infringement, then you receive no copyright on your work. If your fan fiction falls under legal fair use, however, you receive a copyright on your original elements.
Where does that leave a work like Fifty Shades of Grey, which began its life as Twilight fan fiction and was later rewritten to eliminate the copyrighted elements? Looking at the statute, if her Twilight fan fiction was unlawful, we would have to examine the way she uses the infringing materials to determine which "parts" she does not own and could use for her own later work. However, the Anderson case seems to stand for idea that an unauthorized derivative work belongs wholesale to the owner of the preexisting work, although we can distinguish this case from Anderson in that Anderson was suing to prevent the owner of the preexisting work to use his derivative work, while we're questioning whether James can publish excised pieces of her own derivative work. Were the case to go to court, it would provide an interesting exploration of both the legality of fan fiction and the ownership of derivative works.
What should you do if you receive a Cease and Desist notice?
Increasingly, content creators and publishers are smiling upon fan works, but some would rather see fan works go away (and others would prefer that very specific fan works, such as erotic ones, cease to exist). It can be a bit frightening to receive a cease and desist letter, especially if it comes from a large company with expensive lawyers. Fortunately, there are resources to help fan writers and fan artists. The Organization for Transformative Works is ready to come to the aid of noncommercial fan writers, while organizations like Chilling Effects and the Electronic Frontier Foundation handle all sorts of cases relating to your online rights. Professor Tushnet noted that frequently, if an attorney responds to a cease and desist letter, the sender of the C&D will drop the matter. She notes that education is the best way to keep fan works thriving online, both so that fan creators understand their rights and so they'll know whom to turn to if they're accused of infringement.