Mary Sue Saves the Day! A Reasonable Argument for Fair Use

As briefly explained in an earlier post, Mary Sue is a generalized term used to represent a character, who may have played a minor or supporting role (if any) in the original work, but in the resulting fanfic, is elevated to the starring role of hero(ine).

The name Mary Sue refers to a character of the same name that first appeared in a 1974 Star Trek story written by fanfic author Paula Smith. Lieutenant Mary Sue took the helm of the Enterprise in Smith's work 20 years before a female would do the same in any official/authorized Star Trek tale. Thus, the name was coined to represent a character with superlative and often, non-typical qualities. As Chander and Sunder (2007) put it, "Mary Sue has since come to stand for the insertion of an idealized authorial representative in a popular work. Derided as an exercise in narcissism, Mary Sue is in fact a figure of subaltern critique, challenging the stereotypes of the original".

Chander and Sunder offer a thorough explanation of why fanfic and Mary Sues in particular constitute parodies, and why parodies constitute fair use, refering to Supreme Court's remarks in the Campbell case: "Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination". However, they also caution that "While parodies by their nature require some amount of borrowing in order to evoke the original,"' the question of how much is too much is one that can only be determined in a particular context. For example, a Mary Sue masquerading as the canon work would likely go too far".

One interesting parody case was that of Campbell v. Acuff-Rose Music, Inc. 2 Live Crew parodied the popular Roy Orbison hit Oh,Pretty Woman and did credit Orbison and co-writer William Dees as the authors. However, they still were sued for copyright infringement. While the district court found that 2 Live Crew's parody was within the scope of fair use doctrine, it was reversed in appeals, citing excessive borrowing and the fact that the song was commercial in nature. Finally, the case went to the Supreme Court which basically used Section 107's four factors fair test use to determine that the parody was in fact, fair use.

The authors of this article also address the fact that most Mary Sue stories are not written with the intent of earning a profit, but even if they were, they note that "Mary Sues can be commercial and still be fair. Indeed, the history of fair use is replete with commercial uses". Furthermore, "Mary Sue works are not likely to supplant the market for the originals. Rather,they are likely to serve a different market of specialized consumers who identify more closely with Mary Sue versions than with dominant versions. If part of the market for the original disappears because the Mary Sue exposes the original's prejudices, that is not the type of adverse effect on a market for which the fair use calculus should account".

I found the parody explanation quite helpful in understanding fair use as applied to fanfic. While I think the general connotation associated with parody is a humorous remake, the most basic definition would simply be imitation, and as noted, the original work must be referred to in order for imitation to occur. As for Mary Sue's, even if they did appear in the original work in some capacity, by their definition, by the time these characters resurface in the resulting fanfic, they have been thoroughly transformed, and thus, original and unique.