Fan fiction and fan art are both tremendous element of our democratic culture , a path we retell our favorite tale just as world have always fictionalise myths and legend . But sometimes creator , publishing house , and studios claim that work of fan art and rooter fable violate their copyright . So is that Supernatural fanfic you ’re working on legal , or should you concern about the lawyer coming a - calling ?
Top painting : Besame Mucho by Isabel Samaras , and a fine argument for middling use of goods and services .
In addition to looking at US statutory and character law , I consultedProfessor Rebecca Tushnetfor this objet d’art . Professor Tushnet is a prof at the Georgetown University Law Center , where she instruct intellectual dimension , advertising , and First Amendment law . She also happens to savor writing fan fiction and is a gameboard member at theOrganization for Transformative Works , a non-profit-making governance that promotes , supports , and furnish sound advocacy for lover whole works . Professor Tushnet has also talk and save a great hatful 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 inform some of the information herein and which I extremely recommend reading . Huge thanks to Professor Tushnet for accept time out of her busy agenda to peach devotee industrial plant .
For the rice beer of this part , we ’re just going to stick to right of first publication under US law . This is all , for the record , strictly informational and is not in any way of life legal advice . If you necessitate advice on your own fan employment , I ’ve included organizations you could contact in this post .
What can be copyrighted ?
First things first . so as to have desecrate a right of first publication , there has to be a copyright in the first place . So how is a copyright create ? Well , you receive a copyright on an original work at the moment that the work is “ pay back in a palpable medium of expression . ” What that means is that , as soon as you have written down , draw , typed out , filmed , or otherwise recorded your work , it is yours under the constabulary and you have certain undivided right to it . If something is not fixed , however , it is not copyright . For example , an improv public presentation would not be itself copyright , but if that same performance were filmed , then the participants would hold a copyright on the performance . If a public presentation of a fun is n’t filmed , then that special carrying into action is n’t copyrighted , but the handwriting , which has been fixed digitally or on paper , is copyrighted . It does n’t weigh if the work has any sort of artistic merit ; the greatest works of literature and the grim forms of amusement are all eligible for right of first publication security .
Before 1989 , US copyright law required creators to issue works with a copyright bill , and before 1978 , Creator had to register for a copyright renewal after the initial 28 - twelvemonth term . However , obtaining and retain right of first publication is now an automatic pattern . Under the current US statute ( US Code Title 17 ) , you own a copyright on your fixed work from the minute you fix it , and the copyright lasts for the liveliness of the writer plus 70 year . ( A work for hire , however , such as the work perform by many comic book writers and creative person for DC and Marvel , has a condition of 95 years from issue or 120 days from world , whichever come first . ) Although registration is no longer command , it does have sealed advantages . For example , you could not bring an action for violation until you have registered a right of first publication , and you could not invite statutory damages or lawyer ’s fees from an encroach party unless you registered your copyright prior to the misdemeanor or within three months of publication ( unless the infringed upon employment is unpublished ) .
Copyright is meant to cover the existent creative work , not abstract ideas . We have patents to incubate musical theme and copyrights to enshroud originative facial expression . However , that protection poke out beyond the actual text of a work . Where fan works are concerned , we ’re mainly concerned in persona copyrights .
Character Copyright
To a certain extent , creators have a right of first publication on their character . If I ’m writing a news report about Harry Potter , for example , J.K. Rowling ’s right of first publication definitely amount into play . The font law on this is a spot 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 tale about Sam Spade even after Dashiell Hammett sell the rights to The Maltese Falcon and all of its characters to Warner Bros. The reasoning was that the trial run of whether a type is copyright is whether the fibre “ constitutes the story being told . ” However , the fact that Warner Bros. and not Hammett was the plaintiff in this case was believably primal . The court did n’t require “ the sale of the right to print a copyrighted story [ to ] forbid the writer ’s employment of its character in subsequent works . ” That is to say , they did n’t want the cut-rate sale of The Maltese Falcon to result in the absurdity that any sequel Hammett himself wrote would infringe on a his original fib . A later case , Anderson v. Stallone , carry in part that the characters from the Rocky films were a copyrighted reference independent of the film in which they appear .
On a practical level , Professor Tushnet notice that “ the boundaries are really super fuzzy . So in general , when courts face up an topic like that , they tend dissolve them as subject of fair economic consumption . They just take for granted that there ’s copyrighted part and then analyze what is the fair usance . ”
But what if the theatrical role I ’m write 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 compose about make the original story . Metro - Goldwyn - Mayer v. American Honda Motor Co.dealt with a Honda commercial message feature a James Bond - same case making a high - speed getaway . MGM claim that the commercial infringed on its copyright on the Bond character as depicted in the films . The court noted that the Honda commercial message , like the James Bond films , stars a liberal , tuxedo - wear British - looking man with a gorgeous woman in towage who is on the run from fantastical villains . Beyond that , several visual chemical element appeared to have been directly lift from individual James Bond movies . The court explained , “ In sum , the extrinsic ideas that are integral parting of the James Bond films seem to be substantially similar to those in the Honda commercial . ”
The 1930 caseNichols v. Universal Pictures Corporation , with an judgment authored by the famed Second Circuit judge Learned Hand , held that no one may hold a copyright on bloodline characters . Rather , graphic symbol have to be “ sufficiently delineate ” so as to be copyrightable . ( say Hand , “ If Twelfth Night were copyright , 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 character he cast a dissolute horse who hold open wassail to the uncomfortableness of the menage , or a vain and foppish steward who became amorous of his mistress . ” ) So a write up about a pre - adolescent male child learning how to do magic at a boarding school wo n’t necessarily infringe on a Harry Potter copyright . But where do we pull the line of products ?
Professor Tushnet extend this analytic thinking , noting that you may apply these tests to both a floor ’s character and its setting . “ It ’s all about the specifics , ” she explained . “ So , the canonic idea of having Starfleet , of course , is completely unprotectable . And having multitude who are sort of like the Chinese and people who are sort of like the Russians would again be wholly unprotectable . The more you adopt from Star Trek specifically , the nigher you get to infringement if it ’s not fair usance . ” So it amount down to a question of what name Harry Potter specifically Harry Potter and not just another male child wizard .
And what about optical representation of a character ? If I draw a picture of Korra without secern a account 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’sWalt Disney Productions v. Air Piratesinvolved the underground comical Air Pirates Funnies . The comedian star a mouse named Mickey who looked an terrible tidy sum like Disney ’s shiner but who engaged in behavior never date inside a Disney toon . The California District Court stated that “ a comical 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 stand for the idea that God Almighty have a rightfulness to optic representations of their characters . That means that an image of Korra — or any other graphically represented character — is subject to copyright .
So , you ’ve make up one’s mind to go ahead and compose that Harry Potter fan fabrication or draw that moving-picture show of Korra . Are you illegally run afoul upon another person ’s copyright ? Not of necessity . Our next step is to await at fair use .
Fair Use
Copyright grants the holder sure exclusive rights to their intellectual property , but the uncouth culture has a rightfulness to fair use of a workplace . 17 USC § 107 explicitly states that use of a copyrighted work “ for purposes such as criticism , remark , news reporting , teaching ( including multiple copies for classroom use ) , encyclopedism , or enquiry , is not an infringement of copyright . ” This build fair enjoyment into US statutory law , but that clean use is n’t clear defined . It ’s up to court of justice to examine each case and utilize relevant case law , which can make the line between run afoul purpose and average consumption hard to draw . But we can analyse rooter fiction under the four factor for fair usage outlined in the statute :
( 1 ) the purpose and grapheme of the use , including whether such use is of a commercial-grade nature or is for non-profit-making educational design ;
( 2 ) the nature of the copyrighted work ;
( 3 ) the amount and solidness of the portion used in relation to the copyrighted work as a whole ; and
( 4 ) the gist of the use upon the potential securities industry for or value of the copyrighted work .
Purpose and Character of the Use
So lease ’s front at the two examples mentioned early on , the lover fable floor about Harry Potter and the fan art of Korra under the dissimilar comely use factors .
First off , are you sell these works or otherwise profiting from them ? InSony Corporation of America v. Universal City Studios , the famous VCR case , the Supreme Court found that , because home transcription was a personal , noncommercial use , it was allowable , even though it fall short on every other aspect of fair employment . Noncommercial uses are far more likely to precipitate under comely use than commercial uses . Professor Tushnet has find this to be the case on a practical level , saying , “ particularly for noncommercial stuff , sightly use offers plenty of tribute [ for fan deeds ] 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 , hurl a flake of uncertainty on this blanket view of fan works post for costless online as fairish use , although she notes that in the Suntrust case ( discussed in great detail below ) , the royal court name The Wind Done Gone as commercial-grade by noting that Randall chose to sell it as a ledger rather than choose “ to publish her work of fiction on the internet free to all the earth to take , ” implying that works publish for detached online are noncommercial under a fair use analysis . McCardle also note that , because liberal sports fan fiction has been tolerate for so long , fan fiction writer have a strong font for claim it as noncommercial fair purpose .
So is it illegal to sell your sports fan work ? Not necessarily . It is potential to commercialise lover piece of work , specially when those make for critique or spoof the original . The case that hits home just how firmly parody fits within fair role is Campbell v. Acuff - Rose Music , which held that 2 Live bunch ’s knock lampoon of Roy Orbison ’s “ Pretty Woman ” was a effectual , non - infringing parody , even though their manipulation of the Sung dynasty was clearly commercial and used solid amounts of the original song . A more literary case is that of The Wind Done Gone , Alice Randall ’s novel that iterate Gone with the current of air from the perspective of a Tara Plantation slave . Although the 11th Circuit in the ensue lawcourt caseSuntrust v. Houghton Mifflin Co.didn’t in reality predominate that the book was a fair enjoyment spoof , it did abandon an cease and desist order against the Word of God ’s statistical distribution , stating that it was potential that a cautiously written parody , even one that borrows so heavily from its reservoir , could be a licit fair economic consumption . The face was finally settled out of court .
So perhaps you desire to skewer Rowling ’s original text by retelling the Harry Potter story from Draco Malfoy ’s view , portraying Harry Potter as a rich , popular jockstrap who always gets his way of life . The more you transform and comment on the original text edition , the more probable you are to create a work that falls under fair use , even if your work is commercial-grade . Consider the legion Twilight spoofs on the market .
disregarding of whether your work is commercial-grade or noncommercial , a court would also look at whether the work is transformative , whether you alter the “ facial expression , meaning , or message ” ( as the Campbell decision puts it ) of the original content through your use of the copyright material . Parody and critique are transformative uses , but they are not the only examples of transformative enjoyment . When determining whether a economic consumption is transformative , we want to look at the how the raw use impacts our opinion of the original work . Again we wait to professor Tushnet , who offers this description of rooter graphics transformation in her article“User - Generated Discontent : Transformation in Practice,”published in the Columbia Journal of Law and the artistry :
Transformativeness in fanworks take many forms , from critical review to solemnisation to reworking a text so that it well addresses the concerns of a specific audience . For example , fanworks based on television display often rework the canonical versions to focus on the aspects that worry the distaff audience disdained by web tv set . In general , noncommercial fan communities routinely reward what might be forebode transmutation by excavation – new work that succeed creatively by illuminating something about the master .
Going back to the James Bond Honda commercial message , Honda did little , if anything , to transubstantiate the representation of James Bond . He was still fall apart the same dress , still dodging the same opposition , and do many of the exact maneuvers he perform in the movies . Honda did nothing to falsify or change that “ original ” ( even though it ’s not original ) conception of James Bond . This suggests , for example , that tell the further escapade of Harry Potter while aping the manner of JK Rowling is less potential to be view as a transformative work , while a serial of narration that explore what the minor lineament were doing over those seven age 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 ofFan Fiction and Copyright : Outsider Works and Intellectual Property Protectionsays that yes , this sort of work is more likely to be protect as transformative . After all , he notes , Harry and Draco are n’t behaving like Rowling ’s character 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 God Almighty .
Interestingly , one of the few court decisions that discuss the transformative nature of rooter whole shebang concern Rowling ’s books . Warner Bros. v. RDR Booksdealt with Warner Bros. and Rowling ’s effort to say the publication of Stephen Vander Ark ’s The Harry Potter Lexicon . The court find in favour of Rowling and Warner Bros. , but not because it deemed an encyclopedia of Rowling ’s world insufficiently transformative . The Lexicon look at too much of Rowling ’s prose without citations . In the legal opinion , the motor lodge explain , “ While the Lexicon , in its current state , is not a fair manipulation of the Harry Potter whole kit and caboodle , denotation forge that deal the Lexicon ’s purpose of aiding readers of literature generally be encouraged rather than asphyxiate . ” However , the Lexicon is transformative because it is a acknowledgment ; fan fiction is improbable to be transformative in the same way .
What about selling a picture Korra draw in your own style ? “ I think that is a harder call , ” Professor Tushnet said . “ You would have to make a cause - by - typesetter’s case depth psychology . One thing you would need to know is to what extent are people concerned in that particular artist ’s take on the character . I think that it ’s punishing to say as a blanket regulation how a court of justice would see commercializing that . ”
A brief notation on parody . There is , understandably , a great quite a little of confusion about what constitutes a logical parody . pasquinade mean that you are using a work so as to criticize that same work . If you ’re using the piece of work to review something else , that is satire . For the purposes of a bonny enjoyment analysis , caustic remark is treat as non - parody , although it is still possible for a caustic remark to shine under bonny use . Whether something might be both parody and satire is beyond the background of this word . Also , as The Wind Done Gone case indicates , humor is not a necessary element of parody . Conversely , sense of humour does n’t automatically make something a parody .
Nature of the Copyrighted Work
How you use a copyright study matters , but so too does what copyright work you apply . fabrication acquire more protection than non - fiction , so if your sports fan fiction is base on a biography rather than a novel , you ’re less probable to create an infringing work . The court in Warner Bros. stated that “ extremely imaginative and creative fabricated works ” like Harry Potter are particularly deserving of right of first publication attention . However , unpublished works receive greater protection than release ones , meaning it ’s legally more dubious to create wildcat fan fabrication establish on the unfinished fantasy manuscript pose in your roommate ’s desk drawer than on Harry Potter .
Amount and substantialness of the Portion Used
How much you copied can also be a agent . Did you take a teeny little bit of the Harry Potter universe — the schoolhouse , the normal of magic , a couple of characters — or did you basically rewrite the ledger while insert your own Mary Sue ? There ’s no prescript about just how much is too much , but how much you use is one of the cistron court examine in determine comely use . However , as we see with The Wind Done Gone and the “ Pretty Woman ” slip , you could take a significant amount of the original body of work for parody and critique , although using the minimum amount of the work necessary for your put-on create the strongest case .
consequence of the Use upon the Potential market place
Market harm and likely market harm are biggies , and whether a work is considered a legitimate fair use often hinge on a whether a court determines that use harms the mart for the original work . Let ’s say you flex you sell me your drawing of Korra , and , because I now own a Korra drawing , I ’m not going to corrupt one licensed by Nickelodeon . If you re-create a work “ verbatim ” for commercial-grade intent , there is a presumption that you are causing food market harm , but in other cases , the burden would be on Nickelodeon to try that you are either stimulate it market harm or , if it has n’t yet infix into the Korra art business , that you would harm it if it entered that market . For lesson , perhaps you gave me the Korra draught , or I buy it specifically because I wanted your Korra drawing , not someone else ’s ( incriminate that it was somehow transformative ) ; either of those particular would switch the analytic thinking . If your fan work is find to be in competition with and harm the market place for the original , that can be damning to your title of fairish use .
But market hurt go for only to works that compete with the original , not go that kill your appetite for the archetype . If you betray me a Harry Potter parody that so powerfully criticize Harry Potter that I never piece up a JK Rowling Word of God again , that does not contribute to a finding of infringement . In that grammatical case , you have n’t harmed the grocery by copying the work but by contributing your own ideas and interpretations of the work .
To sum up mediocre exercise
As you’re able to see , there is a lot of balancing at workplace in the fair use analysis , and that balancing enactment is made more difficult by the want of lawsuit practice of law fence lover industrial plant . There are few bright line rules , but we can see that the strongest cases for fair use involve sports fan works that are noncommercial and transformative while borrowing a little as they require from the original works and that do not vie with the original oeuvre in the market place .
What rights do you have to your fan study ?
So you ’ve written your Harry Potter fanfic masterpiece . Does that mean you own the right of first publication on your fan fiction ? A work based on an earliest work , such as an adaptation , sequel , or translation , is termed a “ derivative employment . ” One of the right cede to copyright holder is to control the foundation of derivative piece of work , although , as we ’ve take note , average consumption may be a defense in sure cases . But if your work is fair use , do you check a copyright on the original element of your piece of work ? look at the lawsuit of Timothy Burton Anderson , a film writer who wrote an wildcat , 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 of justice held that Anderson ’s discourse was a derivative body of work , and therefore Stallone held the right of first publication on that study . Anderson attempted to argue that he held the right of first publication on the original portions of his script , but the court rejected his disceptation .
The statutory provision 17 USC § 103(a ) states that “ security for a employment employing preexist material in which copyright subsists does not extend to any part of the body of work in which such fabric has been used unlawfully . ” While 17 USC § 103(b ) states the creator of a derivative work receives a copyright on their contributions to the workplace , while the author of the original work keep on their possession of any preexisting stuff . What that indicates is , if your fan fiction represents an unlawful infringement , then you get no copyright on your work . If your fan fiction falls under legal fair use , however , you receive a copyright on your original element .
Where does that leave a work like Fifty Shades of Grey , which began its life as Twilight fan fable and was later rewritten to eliminate the copyrighted elements ? Looking at the legislative act , if her Twilight fan fiction was unconventional , we would have to probe the way she utilize the infringe material to determine which “ parts ” she does not own and could use for her own later piece of work . However , the Anderson case seems to bear for idea that an unauthorised derivative work belong wholesale to the possessor of the preexisting work , although we can tell apart this caseful from Anderson in that Anderson was sue to keep the owner of the preexist body of work to practice his derivative work , while we ’re interrogate whether James can publish excised pieces of her own derivative workplace . Were the typeface to go to court , it would provide an interesting exploration of both the legality of sports fan fable and the ownership of derivative works .
What should you do if you receive a Cease and Desist notice ?
progressively , mental object creators and publishers are smiling upon fan works , but some would rather see buff works go away ( and others would opt that very specific fan piece of work , such as erotic ace , cease to exist ) . It can be a bit frightening to have a cease and desist letter of the alphabet , especially if it comes from a with child companionship with expensive lawyers . Fortunately , there are resources to help fan author and buff artist . TheOrganization for Transformative Worksis ready to come in to the aid of noncommercial fan writers , while organisation likeChilling Effectsand theElectronic Frontier Foundationhandle all kind of case relating to your online rightfield . Professor Tushnet note that oft , if an attorney respond to a cease and desist letter , the transmitter of the C&D will drop the matter . She notes that breeding is the best room to keep lover works thrive online , both so that fan creators understand their rights and so they ’ll know whom to turn to if they ’re accused of infraction .
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