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.

Righting a Wrong by Writing a Parody

Several of the articles I've read while exploring the topic of fanfic have mentioned the book Wind Done Gone so I decided to investigate this title a little further.

Wind Done Gone is a parody of Margaret Mitchell's Gone with the Wind that was written by Alice Randall in an attempt to combat the outright racism she felt was conveyed in Mitchell's book. Not surprisingly, the release of this book was delayed due to a lawsuit between Mitchell's trust and Houghton Mifflin, the publisher of Randall's work. This was eventually settled when Houghton Mifflin agreed to make a sizeable donation to Moorhouse College.

Is this a case of fanfic? One could argue that it is the exact opposite of fanfic, because while Randall did love Gone with the Wind when she read it as a child, she felt the portrayal of African Americans was extremely damaging. However, Randall's main character Cynara could be seen as serving as a Mary Sue, rising above to fight the stereotypes of the original work. What is also unique about this work and this case is that Randall had the support of a major publisher (as opposed to attempting to self-publish) as well as the backing of several well-respected African American authors, including Toni Morrison.

If you're interested in learning more about this book and the case, I've included some links for Houghton Mifflin and the Freedom Forum here and under the Web Links portion of my blog.

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.