Complimentary Creation: Protecting Fan Fiction as Fair Use

By Stroude, Rachel L. | Marquette Intellectual Property Law Review, Winter 2010 | Go to article overview

Complimentary Creation: Protecting Fan Fiction as Fair Use


Stroude, Rachel L., Marquette Intellectual Property Law Review


Introduction
  I. Fan Fiction
     A. What Is Fan Fiction?
        1. Fan Fiction Type 1: Referential Works
        2. Fan Fiction Type 2: Participatory Works
     B. Fan Fiction: Commercial or Non-commercial?
 II. Courts' Treatment of Fan Fiction: Application of Fair Use
     A. Courts' Treatment of Referential Works: A Trend
        1. The Court's Discussion of Twin Peaks Productions,
           Inc. v. Publications International Ltd.
        2. The Court's Discussion of Paramount Pictures Corp.
           v. Carol Publishing Group
        3. The Court's Discussion of Warner Bros.
           Entertainment, Inc. v. RDR Books
        4. Trend Established by These Fan Fiction Cases
     B. Courts' Treatment of Participatory Works: Stay Tuned
III. Proposed Model: a Parody-Like Treatment of Participatory Works
     A. Why Fan Fiction Deserves Protection
        1. Referential Works as Commentary
        2. Participatory Works as Archontic
Conclusion

INTRODUCTION

Ever heard that a picture is worth a thousand words? Most likely you have. However, does anyone follow up with the question of whose one thousand words is it worth? Is it worth a thousand words to only its artist? How about the viewers? Do they each get a thousand words, too? Any person willing to offer a thousand words for that picture will have a different thousand words than the next person and the next person and so on because of the varying interpretations of the picture.

Literary works, in many respects, are like an artist's picture, as the very words of a novel may create images in the reader's mind. Each reader may invest new meaning in the work conjured up by the author. The author invites the reader into the world she creates, but the author cannot limit where her world takes the reader. A reader may write a different ending to the original work, or a reader may collect all the information and arrange it in a new reference source. The reader's new works create the genre of fan fiction. This is wonderful, right? Now we have an author inspiring her readers to become authors themselves! But wait, the original author wanted readers to enter her world, not readers inviting her into their worlds spurred from her world. To end the existence of the reader's world, and thus fan fiction, the author needs only to speak two magic words: copyright infringement.

A fan fiction author facing a copyright infringement claim will most likely seek refuge in the fair use doctrine. The fair use doctrine, a complete defense to an allegation of copyright infringement, (1) is at the heart of the tension between private rights and public use, both interests that benefit the public. (2) Scholars and litigants are continuously challenging courts to analyze the purpose and function of the fair use doctrine because of this tension. The District Court for the Southern District of New York acknowledged that the fair use doctrine "mediates" between the competing interests of protecting copyrighted material and secondary works by determining the extent of each protection. (3) However, while a court may have the four factors of the fair use doctrine to assist in its decision as to which way to strike the balance, there is no bright-line rule; instead, the doctrine imposes a case-by-case analysis. (4)

This Comment discusses the tension a court faces each time it encounters a fair use doctrine analysis by focusing on the treatment of fan fiction. Although very few fan fiction works have risen to the litigation level, the authors of those fan fiction works that have reached litigation have asserted fair use, and it is likely that fan fiction authors will continue to do so. (5) First, this Comment describes the nature of fan fiction, the two types of fan fiction, and the potential commerciality of fan fiction. Second, this Comment analyzes courts' treatment of referential works and explains why courts have not encountered participatory works.

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