Does Fan Fic=Fair Use?

In Complete Copyright: an Everyday Guide for Librarians Russell advises that "one must make a fair use determination based on sound judgment and the careful consideration of the situation at hand". In this respect, fan fiction is no different from any other creative work. There are no bulk judgments or sweeping generalities but rather, each case must be examined individually. Harris also warns that people looking for a definite yes or no answer may dislike the ambiguous nature of fair use and furthermore, she states that "fair use cannot be reduced to a checklist". However, two pages later she supplies readers with exactly that--yes, a checklist.

This checklist is based on the four factors of fair use found in Section 107:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

While fanfic is generally not used for educational purposes, it is also normally not of a commercial nature. The checklist mentions parody as favoring fair use, and as I have discovered, fanfic is generally believed to meet the requirements of a parody. Fanfic authors as a rule do not profit from the use and also give credit to the original author. One more item on the checklist favoring fair use is "restricted access (to students or other appropriate groups". While it might be a stretch, I think this also applies to fanfic to some degree. While fanfic may be out on the Internet for anybody to find, usually it is sought out and found by an appropriate group--that being fans of the fanfic genre.

2. The nature of the copyrighted work.

Justifying this portion of the checklist is a little tougher. Under "opposing fair use" both highly creative work and fiction are listed. Fanfic usually is based on fiction and while "highly creative" is a subjective view, I think this could be applied to many of the works targeted by fan writers. On the other hand, published work is listed under the considerations for favoring fair use, and again, fanfic normally derives from previously published works.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

In order to be a parody, fan fic must borrow from the original work. Of course, it may be easy to argue that it is not fair use if a large portion or the whole work is used and it seems to me that most reasonable people would agree with this and find these digressions easy to spot. Borrowing a small quantity is seen as favorable and is also fairly commonsense. What is more ambiguous is whether or not the portion used is central to the work or the heart of the work. There seems to be a lot of room for disagreement on this point and will likely come down to individual perceptions.

4. The effect of the use upon the potential market for value of the copyrighted work.

As shown in Tushnet, fans strongly believe that their works, being noncommercial, are not harmful on market effect, and if anything, may add value for the original work by peaking interest and increasing loyalty. However, one of the bullets for opposing fair use is "you made it accessible on Web or in other public forums" and it would be difficult to deny that the Web is the preferred distribution medium of fanfic.

In conducting this research, it seems that original creators and fan fic writers have reached a middle ground. As long as fan fic is noncommercial (and some authors also stipulate non-pornographic)these derivations are likely to be left happily alone. The real debate comes in to play when fan fic writers are looking to profit from their work. Again, those cases are looked at individually, not as a whole, and sometimes they lose, and sometime they win. I believe the Wind Done Gone case ended favorably for Randall mainly because she had Houghton Mifflin on her side. While quite a bit of fan fic truly is not good writing and doesn't deserve to see the light of day, the everyday fan fic writers and the self-publishers generally just do not have the funds and resources available to fight the big guns, which is why so few of these cases have ever made it into court or the spotlight.