Copyright Law, Fan Practices,
and the Rights of the Author
Fans of popular media who write stories about their favorite characters, draw pictures of them, and edit music videos reworking the original sources occasionally stop to think about whether what they are doing is legal under copyright law. Many fans assume that these creations are technically illegal—in copyright-specific terms, infringing—but not harmful to copyright owners and therefore not truly wrong, at least as long as fans keep relatively quiet about their creative practices (e.g., Brook n.d.). Others think that fan creations count as “fair use,” and thus as noninfringing, at least as long as no one is making any money from selling them (e.g., Gran 1999). Either way, fans tend to see their legal status as similar to their social status: marginal and, at best, tolerated rather than accepted as a legitimate part of the universe of creators.
Shortly after I found online fandom, I wrote an article on the subject, which is now often cited in fan discussions, and occasionally in discussions with skeptics who find fan fiction immoral and infringing (Tushnet 1997). I concluded that most fan fiction, particularly that disseminated on the Internet, would be classified as fair use under U.S. copyright law.1 Since then, fan fiction has attracted more attention from “free culture” advocates who are concerned about copyright owners' attempts to channel and control popular culture. Some copyright owners have also taken an aggressive stance against fan creativity, sending enough cease-and-desist letters threatening lawsuits to fan websites that the Electronic Frontier Foundation's anticensorship website, chillingeffects.org, has a section dedicated to fan fiction.