Posted by Post Authored By: Natalie Elizaroff
What do Fifty Shades of Grey, After, and City of Bones (Mortal Instruments #1) all have in common? All three of those titles once began as fan fiction. Fifty Shades of Grey was originally a Twilight fan fiction titled Masters of the Universe, After began its life as a One Direction fan fiction, and City of Bones was fan fiction set in the Harry Potter Universe featuring a Draco/Ginny pairing. The important takeaway from this is that all three of these titles have seen immense success, popularity, and have avoided a lawsuit, despite their origin in copyrighted works.
What is Fan Fiction/Fan Art?
Fan fiction is fictional writing written in an amateur capacity by fans, unauthorized by, but based on an existing work of fiction. Likewise, fan art is creative work (drawings, paintings, merchandise, etc) which is based on or uses material from someone else’s work. Examples of fan fiction and fan art include drawings/stickers of Harry Potter characters, a Lion King and Star Wars mash up, and the notorious Bella and Edward Twilight pairing that eventually became the backbone of E.L. James’ Fifty Shades of Grey.
What is the Relationship Between Copyright Holders and Fan Fiction Creators
It depends on who is being asked, but to put it simply – complicated. Some companies and authors are much more open to fan creations, such as J.K. Rowling. Whereas others such as George R. R. Martin and Anne Rice have openly spoken against it and see it as an abuse of their characters. Fan fiction and fan art, without appropriate permissions or licenses, are usually an infringement of the right of the copyright holder to prepare and license derivative works based on the original. Copyrights allow their owners to decide how their works can be used, including creating new derivative works off of the original product.[1] Accordingly, unlicensed and unapproved derivatives may result in potentially lost profits for a company.
That said, copyright owners and fans have a symbiotic relationship, wherein many copyright owners actually tolerate fan-created works. The reason being is that most fan fiction and fan art is not really all that harmful to the original work. Fan-created work is typically recognizable as standalone and separate from the original, therefore it does not replace the original and instead serves as a supplement for fans to congregate around. This generates excitement, engagement, and free promotion for the original copyright – all of which are positively regarded.
This symbiotic relationship breaks down when fans cross the line and start charging for their work. For example, in recent news Netflix brought a copyright infringement lawsuit against Barlow and Bear’s Unofficial Bridgerton Musical.[2] Although the case settled outside of court, Netflix was originally very supportive of the duo’s efforts – but once Barlow and Bear began trying to sell tickets for profit, the narrative quickly changed. Similarly, several years ago J.K. Rowling had to initiate a suit against Steven Jan Vander Ark over the Harry Potter Lexicon.[3] Rowling remained tolerant of Vander Ark’s continual efforts into the lexicon up until the moment when he tried to profit off of it. Accordingly, this demonstrates the complicated and symbiotic relationship that exists between copyright owners and their fans.
Does Fair Use Apply?
‘Fair Use’ is one of the strongest defenses to an allegation of copyright infringement. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.[4] The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.[5] Section 107 looks at four factors in evaluating a question of fair use:
- The purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes;
- The nature of the copyrighted work;
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work. And take that with a grain of salt because courts disagree about how to interpret these factors or which ones are most important.
Despite the availability of the fair use doctrine, it is still a defense and not a guarantee. The four part test is unpredictable and should not be used as a loophole for copying.
How Do You Avoid a Lawsuit?
Due to the popularity of fan fiction and fan art, many content owners have begun proactively providing guidelines to their fanbase. Wizards of the Coast (Dungeons & Dragons),[6] CBS and Paramount Pictures (Star Trek),[7] and EPIC Games[8] have all developed policies to inform fans of what they can and cannot do legally.
Additionally, usually as long as the fan content is non-commercial, it is not a problem with copyright holders. Regardless, unless the work is completely original, fans should be careful about their creations.
Finally – do fan fiction and fan art creators have copyrights too?
Although it is a slippery slope, the simple answer is – yes, they do. At its basic definition, copyright protects original works of authorship including literary, dramatic, musical, and artistic works.[9] Accordingly, fans own copyright in their own original contributions to a fan work. Although they would not own the basis for their fan creation, they do own their final product.
Final Thoughts
Every book, television show, musical, and comic series has a fanbase that grows from it. It is important for the fan communities to be able to express themselves in a creative format. Likewise, it is important to be on the right side of the law instead of on the receiving end of a cease & desist. IP attorneys passionate about these matters can effectively steer creators in the right direction, allowing them to find a balance in creation, profitability, and fan content.
[1] U.S. Copyright Office, Circular 14: Copyright in Derivative Works and Compilations (July 2020), https://www.copyright.gov/circs/circ14.pdf.
[2] Gene Maddaus, Netflix Settles Copyright Lawsuit Over ‘Unofficial Bridgerton Musical’ (Sep. 23, 2022), https://variety.com/2022/music/news/netflix-bridgerton-musical-lawsuit-dropped-barlow-bear-1235382454/.
[3] John Eligon, Rowling Wins Lawsuit Against Potter Lexicon (Sep. 8, 2008), https://www.nytimes.com/2008/09/09/nyregion/09potter.html.
[4] U.S. Copyright Office Fair Use Index, Copyright (Aug. 2022), https://www.copyright.gov/fair-use/.
[5] Id.
[6] Wizards of the Coast’s Fan Content Policy, Wizards of the Coast (Nov. 15, 2017), https://company.wizards.com/en/legal/fancontentpolicy.
[7] Fan Films, Star Trek (2022), https://www.startrek.com/fan-films.
[8] Fan Content Policy, EPIC Games (2022),https://www.epicgames.com/site/en-US/fan-art-policy.
[9] Copyright in General, Copyright (Nov. 17, 2021), https://www.copyright.gov/help/faq/faq-general.html.
About the Author:
Before pursuing a legal career, Natalie spent several years in the microbiology department at Evanston Hospital where she conducted comparative research studies, performed quality control testing, and worked on state-of-the-art medical device technology. After doing a swift 180 and finding law as her true calling, Natalie focused her efforts into intellectual property.
Natalie received a Bachelor of Science in Molecular Biology, with a minor in Biostatistics from Loyola University Chicago. She earned her law degree from UIC School of Law and she is currently working as an Associate at Advitam IP LLC, where she handles a variety of IP matters including trademark litigation, copyright infringement, and other IP-related disputes.