Fanfic & Fair Use....

Can Fanfic be considered anything other than a derivative work? Can fair use apply? Current copyright law does allow for criticism in the form of parodies. If we read back into Fanfic the social commentary aspect that I asked you to forget about in the previous entry, then can an argument be made that at its core Fanfic is a lawful act of creation and not subject to copyright infringement litigation?

The courts aren’t entirely clear on this issue and, like many copyright cases, are strictly on a case by case basis. As Henry Jenkins points out, “one paradoxical result [of current copyright law] is that works that are hostile to the original creators and thus can be read more explicitly as making critiques of the source material may have greater freedom from copyright enforcement than works that embrace the ideas behind the original work and simply seek to extend them in new directions.” Although I enjoy Jenkins assertion, I’m not entirely sure how successful the comment and criticism argument will hold up in court. As Stanford’s Copyright and Fair Use Overview points out, criticism includes quoting a few lines, summarizing, copying a few paragraphs or a portion for analysis or review. When I view criticism in this light, I’m not entirely sure that a defense would hold up to much scrutiny. What about the four factors of fair use? Let’s not forget about parody, but that deserves its own separate post…more on parodies later.

• Purpose
• Nature
• Amount
• Effect

PURPOSE:
Stanford’s resource asks the following questions for purpose that I think are helpful in this case:
1) Has the material you have taken from the original work been transformed by adding new expression or meaning?

2) Was value added to the original by creating new information, new aesthetics, new insights and understandings?
Again, Jenkins sheds some important light on this subject when he states:
Fan stories are in no simple sense just "extensions" or "continuations" or "extra episodes" of the original series. Unlike the model critical essays discussed by the various university writing centers, the insights about the work get expressed not through nonfictional argumentation but rather through the construction of new stories. Just as a literary essay uses text to respond to text, fan fiction uses fiction to respond to fiction. That said, it is not hard to find all kinds of argumentation about interpretation woven through most fan produced stories.
If we take this view Fanfic then we can easily respond “yes” to both questions. That’s not to say that there is not Fanfic out there that merely takes the characters and puts them in a different romantic situation (Jenkins).

NATURE:
Factor 2 is a little more problematic, since creative works tend to be on the wrong side of fair use; however, it is entirely possible that an argument can be made in favor of fair use, especially if it is a published work. However, in the area of Fanfic, I believe “nature” would likely receive a low rating and therefore not in support of fair use.

AMOUNT:
As I mentioned earlier, amount is a nebulous subject. For derivative works, no hard and fast rule is available to aid judgments. Furthermore, the concept “amount” is not just about numbers, but the core essence of a work. This lack of differentiation makes assessing “amount” extremely difficult, and I imagine no easier for Fanfic investigations.

EFFECT:
Here we are talking effect on the marketplace. I think this is where the strongest argument in support of Fanfic arises. If anything Fanfic can aid the market for the original authors, and I doubt that any Fanfic story actually reduced an author/publisher’s market share. In recent years, more authors have supported Fanfic for this very same reason. Those authors who continue to discourage or prohibit Fanfic stories based on their material focus less on the economics and more on the moral rights aspect of their creation. Moral rights, however, hold little power in the United States, and are far more popular in Europe. I would be interested to find out reactions from European authors/publishers regarding Fanfic.
Based solely on these four factors, we can see that copyright assessment is an incredibly complex and murky area…and parodies make it even more complicated.
Parodies are next….