Guest Post: The Murky World of Fan Fiction and Copyright

Kiran Mary George brings us her 4th submission to our SpicyIP Fellowship applicant series with this post analysing the legality of fan fiction. In the post, she takes a look at the relevant US law and Indian law, and concludes that while non-commercial fan fiction may be fine, venturing into selling your work may prove risky. Kiran is a 2nd year student at ILS, Pune. Her previous three entries have been “The Smell Mark Conundrum”, “The iPhone v iFon conflict“ and “Of Recipes and Patents“. [The deadline for submission of entries for our Fellowship application has now passed. We shall be going over the submissions received thus far and will announce the winners soon]. (Long post follows)

The Murky World of Fan Fiction and Copyright

By: Kiran Mary George

Fan fiction writers, you’re walking on thin ice!

Fan art and fan fiction basically emerged from the massive popularity that characters from fictional stories garner. Based on popular novels and movies, fan fiction is most often intended to be nothing more than a tribute to the original work, where writers borrow familiar characters and story elements and bind them together in a new story that is perhaps as imaginative as the story borrowed from. ‘Harry Potter and the Half Blood Prince’ from Ginny’s perspective is a rather popular example of this.

However, while entire forums may be dedicated to recreating characters and elements from copyrighted stories featuring the who’s who of the fictional world – from the moment they put pen to paper, fan fiction writers might just be walking right into a copyright mess. Content creators, realizing the value of a dedicated fan fiction community, generally refrain from giving them more attention than they deserve – more so because it often serves as free promotion, keeping audiences interested and entertained between new releases. However, there are plenty of others that resent these spin offs – this post is an attempt to understand the legalities concerning fan fiction in the USA and India.

When speaking of copyright in characters, it goes without saying that to a considerable extent, fictional content creators do own copyright over their characters. Two significant tests laid down the copyrightability of characters; the first was in Nichols v. Universal, where it was held that a character must not be a must not be a stock character to be copyrightable, and must be sufficiently delineated – “the less developed the characters, the less they can be copyrighted”; The second test was laid down in the 1954 case, Warner Bros. Pictures v. Columbia Broadcasting System, where the court held that copyright-ability of characters had much to do with whether the character “constitutes the story being told”. Both the tests were applied in Metro-Goldwyn-Mayer v. American Honda, and the copyrightability of the James Bond character was accordingly upheld. It is essential therefore to note two things: one, that the character is copyrightable and two that there are specific legal tests to determine this protection that have to be carefully applied to the characters that may be borrowed.

Fan fiction, in most cases would be a derivative work. In Eastern Book Company v. D.B. Modak, the Supreme Court discussed the definition of a derivative work, drawing prominent references from US Copyright law, referring to it as “a contribution of original material to a pre-existing work so as to recast, transform or adapt the pre-existing work.” It further mentioned the Indo-Canadian test of originality and stated that to claim copyright in a derivative work, the author must produce the material with the exercise of “skill and judgement with a flavor of creativity”, which may not be creativity in the sense of being novel or non obvious, but at the same time it is not a product merely of labour and capital”. This however, is rather ambiguous, inadequate to draw a conclusion in the matter of fan fiction, especially considering the varying nature of derivative works and the absence of legal provisions specifically dealing with the same under Indian Copyright law. That application of these two tests is however based on a case to case interpretation – there isn’t a uniform approach to the matter itself.

Under the prevailing US Copyright Law, Section 106 gives the owner of a copyright the exclusive right to prepare derivative works based upon the copyrighted work. Most fan fiction isn’t parodying the original work, nor is it sufficiently transformative to be classified as transformative works (where the original work has been substantially changed by transforming it to appeal to a new audience) which, unlike the case in derivative works, would have ideally rendered them significantly protectable. Alice Randall proved her “The Wind Done Gone’ to be a transformative work, against Margaret Mitchell’s Gone with the wind in her retelling of the story from the point-of-view of Scarlett O’Hara’s half-sister Cynara and now retains all rights associated with her book.

However, fan fiction is generally derivative work because it most often entails the use of previously copyrighted characters – superman fan fiction is an apt example – exactly why the chances of a victory in the event of a suit, are weak. Therefore legally speaking, because an author of a fan fiction largely draws its story and character elements from a pre-existing work, he can only publish his work upon obtaining a license from the original creator.

Just like the ‘fair use’ doctrine in the USA, Indian law has incorporated the ‘fair dealing’ doctrine in Section 52 of the Indian Copyright Act, 1972 that works to differentiate between a legitimate bonafide use of a work from a blatant copy. While the Indian law is restrictive and provides a rather narrow and exhaustive list of exception that fall within the scope of fair dealing – rendering anything outside of the enlisted exceptions as an act of infringement, the US Copyright Act of 1976 is far more open ended and illustrative on the matter.

In the case of The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House and Ors  Delhi High Court made a reference to the four factors laid down by Congress (17 U. S. C. §107) as especially relevant in determining whether the use of a copyrighted character was fair :-

1) THE PURPOSE AND CHARACTER OF THE USE

Fan fiction published for personal, noncommercial and even educational uses are more likely to be considered as fair use. Transformative uses that alter the “expression, message, and meaning” (Campbell v. Acuff-Rose Music) of the original work, are also more likely to be fair use. It cannot be emphasized enough that the reason why fan fiction is tolerated all throughout the world is its non commercial nature. Fan fiction came about as a symbol of international fandom’s devotion to popular characters, and has come to be widely enjoyed and shared by communities across the globe. From the vantage point of a copyright holder, fan fiction is tangential to the original stories and are not replacements of the original. The moment a fan fiction writer decides to exploit the popularity his stories have garnered and attempts to compete and profit out of what was granted as a privilege of sorts by the actual content creator, things get messy.

2) THE NATURE OF THE COPYRIGHTED WORK.

Fan fiction based on fictional work is deemed more deserving of protection than non fictional works that are “more of diligence than of originality or inventiveness.” Further, it is considered to be legally more questionable to base an unauthorized fan fiction work on an unpublished work than a published work, because in the former the original creator’s right to determine when to make his work public has been infringed upon. It is pertinent to note here that literary characters are far more difficult to copyright than comic book characters. In Disney v. Air Pirates, it was acknowledged that comic book characters have both “physical and conceptual qualities”, and comprising unique elements of expression, thus being easily distinguishable from literary characters.

3) THE SUBSTANTIALITY OF THE PORTION USED IN RELATION TO THE COPYRIGHTED WORK AS A WHOLE.

Although there exists no definitive percentage component exacting how much of an original story a fan fiction writer is permitted to incorporate into his own story so that does not constitute copyright infringement, a court will take into consideration the quantity and extent to which elements of the original story have been used before a decision is made in the matter

4) THE EFFECT OF THE USE UPON THE POTENTIAL MARKET

This factor deals with the market demand for the original work upon which the fan fiction is based. So long as the fan-fiction work does not take away from the commercial popularity of the original, it may be deemed to be fair use. If the fan work is found to be in competition with the original, competing in the matter of actual sales, the work might be deemed to be an infringement of copyright.

It can be concluded that amidst the web of interpretations regarding what does and does not constitute copyright infringement when speaking of fan fiction, the basic rule remains that if your work of fan fiction is a derivative work, then it must be written only for non-commercial purposes, taking care not to venture into the market of the original work, and any attempt to the contrary will most probably constitute copyright infringement. If your fan fiction is a transformative work on the other hand, or a parody, it might just have what it takes to sail through the storm should you decide to sell it.