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Rewriting TV: Fan Fiction as Fair Use

By

Charity A. Fowler

I. Introduction

She sits at her computer, thinking about the latest episode of her favorite TV show. It

could be Angel, or Stargate SG-1, or West Wing, the fandom does not matter. What matters is

that the characters have grabbed her and she feels the need to carry the story on. She plays with

different scenarios in her mind, thinking of how the characters would react to this situation or

that; how they would interact with the characters she has created in her head; how they would

play with characters from a different fandom. She replays the episode in her head, looking for

gaps to fill. She thinks of the character’s pasts and futures and where they should go from here.

She considers the secondary characters who did not get much airtime or those characters who are

marginalized. And when she has an idea, she starts to write. She is part of a long tradition of

storytelling, building on cultural blocks as Shakespeare did when he reinterpreted the star-

crossed lovers theme to create Romeo and Juliet.1 She follows in the tradition of Tennyson

crafting his Ulysses from Dante’s version which Dante in turn crafted from Homer’s Iliad.2 She

is a fan writer. Technically, in a world where culture is commercialized and owned by a select

few corporations, she is also a copyright infringer.

Fan fiction is not a new phenomenon. It draws on a tradition of storytelling that stretches

backwards through time for millennia. “For most of human history, the storyteller was the

inheritor and protector of a shared cultural tradition. Homer took plots, characters, stories, well

1 See generally HAROLD OGDEN WHITE, PLAGIARISM AND IMITATION DURING THE ENGLISH RENAISSANCE

(1935). 2 See ALFRED TENNYSON, Ulysses, in IN MEMORIAM, MAUD AND OTHER POEMS 44 (John. D. Jump ed.,

1974).

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known to his audiences, and retold them in particularly vivid terms.”3 Fan fiction continues this

tradition into the digital millennium. The main difference is that our shared culture is a media

culture, one in which the characters, plots and stories we know are those of our favorite TV

shows and movies.4 As a distinct, recognizable medium, fan fiction really started with the

fanzines of Star Trek in the 1960s.5 These fanzines were written and published by fans, then

distributed through the mail, flying under the corporate radar.6 However, with the advent of the

World Wide Web, writers and editors could publish and distribute fan fiction much more quickly

and cheaply to a wider audience, and the corporations no longer turned blind eyes.7

What this paper attempts to do is provide an analysis of fan fiction from a legal

perspective, ultimately arguing that while, from a social perspective, it should not even be

labeled “infringing,” legally it would be but for a fair use defense. Some corporations have

attacked fan sites consistently with “cease and desist” letters, generating bad media press and

hostility from the fans who put money in their pockets. Others have openly approved of fan

creativity, granting an implied license. To date, no fan fiction cases have gone to court. This

uncertainty puts both fans and corporations on uneasy footing and as the Internet becomes a

more and more powerful conduit of information, what is owned and what the public is allowed to

do with it is going to become more of a legal hotbed.

For a fair use defense to succeed, courts must consider four prongs: the nature and use of

the infringing work; the nature of the copyrighted work; the amount and substantiality of the

3 Henry Jenkins, Digital Land Grab, MIT ALUMNI ASSOCIATION MAR/TECHNOLOGY REVIEW (March/April

2000) available at http://www.whoosh.org/jenkins.txt . 4 Id. 5 Laura Hale, A History of Fan Fiction at Writers University available at

http://www.writersu.com/WU/modules.php?name=News&file=article&sid=77 (November 2003). 6 Jenkins, supra note 3. 7 Id.

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copyrighted work used; the effect on the market.8 To understand the first prong (and to some

extent, the fourth), one must first understand fan culture and the reasons people write fan fiction.

Fan fiction is not (as it is popularly perceived) bad stories written by obsessed housewives and

teenagers. It is criticism and commentary, as well as an educational tool written by people in

many different walks of life, with many different levels of education. Section II of this paper

will address the fan community and the phenomenon of fan fiction, looking at the sociological

purpose it serves—how it works in the public’s interest. For purposes of this paper, the

following definitions apply: Fan fiction—stories, novellas, novels, poems written by fans in

which characters from popular TV shows and movies are used in a new plot/scenario crafted by

the fan writer; fandom—the particular TV show/movie “universe”: i.e. the Star Trek fandom, the

Buffy/Angel fandom, the Stargate SG-1 fandom. Section III will consider the legal rights of the

corporations who own the copyrights the fan writers are supposedly infringing. Finally, Section

IV will present an argument as to why fan fiction should be not only allowed under a fair use

defense, but encouraged for the reasons the right to grant copyrights was included in the

Constitution: “to promote the progress of science and the useful arts.”9

II. The Public Interest: Fans and Fan Fiction

Between 1869 and 1930, some 200 writers imitated, revised or parodied Lewis

Carroll’s Alice in Wonderland. Some sent Carroll’s plucky protagonist into other

imaginary lands; others sent different protagonists to encounter the Mad Hatter or

the Cheshire Cat. Some promoted conservative agendas, others advocated

feminism or socialism. Among Carroll’s imitators were literary figures such as

Christina Rosetti, Frances Hodgsen Burnett and E. Nesbit. Literary critic Carloyn

Sigler argues that Alice parodies contributed considerably to Carroll’s subsequent

reputation.10

The ability to transform personal reaction into social interaction, spectacular

culture into participatory culture, is one of the central characteristics of fandom.

8 Sony Corporation of America v. Universal Studios, 464 U.S. 417 (1984). 9 U.S. CONST., art. I, § 8. 10 Jenkins, supra note 6.

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One becomes a fan not by being a regular viewer of a particular program but by

translating that viewing into some sort of cultural activity, by sharing feelings and

thoughts about the program content with friends, by joining a community of fans

who share common interests. For fans, consumption sparks production, reading

generates writing, until the terms seem logically inseparable.11

A. The Way Fans “Read”

Human creativity and storytelling has historically borrowed from what came before to tell

stories within a common discourse. The common discourse of today’s society, for better or

worse, is the media. Media culture is our culture.12 The advent of media culture has brought to

the forefront the controversial figure—the media fan. Most of Western society watches

television. Most people have a favorite show. However, only a relative few are willing to

classify themselves as a fan. This is due, in large part, to media mischaracterization of the very

people who keep money in the conglomerates pockets.

The quintessential fans, “Trekkies” have been maligned by more mainstream culture,

sidelined, marginalized, made out to be figures of ridicule. However, a deeper understanding of

what it means to be a fan and what fan culture is about is required before one can appreciate the

depth and intelligence and productivity this subset of our culture is capable of. News media has

characterized fans as “kooks” and explained the “Trekkie phenomenon” (and by extension, other

fandoms) in terms of “repetition compulsion, infantile regression, commodity fetishism,

nostalgic complacency and future shock.”13 However, recent sociological studies of fans have

shown a community of great depth, intelligence, creativity, productivity and compassion.14

11 Henry Jenkins, Star Trek Rerun, Reread, Rewritten: Fan Writing as Textual Poaching, 5 CRITICAL

STUDIES IN MASS COMM. 85, 88 (1988). 12 Id. 13 Jenkins, Star Trek Rerun, supra note 11, at 85. 14 See generally Henry Jenkins, TEXTUAL POACHERS (1992); Joli Jenson, Fandom as Pathology in THE

ADORING AUDIENCE 9-29 (Lisa A. Lewis ed., 1992); John Fiske, The Cultural Economy of Fandom in THE

ADORING AUDIENCE 30-49 (Lisa A. Lewis ed., 1992); Camille Bacon Smith, ENTERPRISING WOMEN: TELEVISION

FANDOM AND THE CREATION OF POPULAR MYTH (1992).

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A great deal of the academic disdain for fans comes from an aesthetic distaste for those

who get to close to the texts that they read.15 “Rejecting aesthetic distance, fans passionately

embrace favored texts and attempt to integrate media representations within their own social

experience.”16 Previous literature about fans tends to stress the discontinuity of modern society

and posit that fandom is a refuge for the maladjusted and makes up for what modern culture

lacks. However, Joli Jenson proposes that the real reason fans are looked down on is because of

cultural snobbery and valuation.17 Obsession is obsession, no matter what it is directed at. But

the James Joyce scholar who spends hours analyzing one paragraph of Ulysses is considered a

serious, passionate scholar, while the fan who spends hours analyzing the implications of the arc

of a storyline on a television show is a maladjusted loner.18 In addition, fans’ perceived lack of

control subjects them to derision in a society that values gentility over rowdiness and reason over

emotion.19

Jenson argues that a fanzine to a fan is equivalent to a heavily annotated bibliography to a

Joyce aficionado.20 People who look down on fans are really looking down on their choice of

material rather than the fact that they “love” something. Everyone has deep, personal interests

that they devote themselves, their time and their money to. The construct that sees fandom as a

type of pathology is seen as offensive and pejorative when applied to “us.”21 Those who dismiss

fandom as immature fetishism are missing the point. “What it means to be a fan should be

15 Jenkins, Star Trek Rerun, supra note 12 at 86. 16 Id. 17 Jenson, supra note 14. 18 Id. at 19. 19 Id. at 20. 20 Id. at 22. 21 Id. at 23.

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explored in relation to the larger question of what it means to desire, cherish, seek, long, admire,

envy, celebrate, protect, ally with others.”22

Unlike the general media image of fans as mindless consumers, most fans are actually

active participants with the texts they choose to engage. The pleasure of reading comes from the

semiotic meanings we make as we read. Different texts can be read many different ways—

Joseph Conrad’s Heart of Darkness is one example. Literary theorists and critics have read the

novel from a multitude of semiotic perspectives—depending on their academic bent, critics have

read the novel as an exploration into the darkness of man’s soul, a denouncement of imperialism,

a call for racial equality, or a rape of the feminine represented by the river that flows through the

Congo.23 That Conrad had all of these interpretations in mind when he penned the novel is

unlikely. Instead, each reader brings his or her own way of making meaning to the text and it

gains its significance in the minds of its readers.

In the same way, “all popular audiences engage in varying degrees of semiotic

productivity, producing meanings and pleasures that pertain to their social situation out of the

products of the culture industries.”24 Fans read the texts of their favorite television shows and

movies in the same way that English professors read novels. They create their own “canon” of

shows, often rejecting later versions or rewrites.25 Sometimes they even reject a whole season as

outside of canon—as some X-Files fans did with Season 8 in which Agent Mulder was missing.26

Fans use the same criteria to judge popular culture that is used to judge “high” culture:

22 Id. at 27. 23 Graduate semiotics class at Virginia Commonwealth University, Fall, 1999. 24 Fiske, supra note 14, at 30. 25 Id. at 36. 26 Nancy Schultz, The E-Files, THE WASHINGTON POST, April 29, 2001.

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complexity, subtlety, consistency of plot and characterization, depth of exploration and social

relevancy.27

Taking these cultural products, fans then rework them to emphasize the meanings they make

from them. They take the normal reactions of most audience members—the asking “what if”—

and they write it down. Because the cultural products of popular culture are industrially

produced, they actually lend themselves far more to reworking than the completed art product of

the official culture—the texts are more open to interpretation.28 For instance, a story about the

continuing adventures of Kirk and Spock is far easier to write because of the open nature of the

franchise, than a story about the future adventures of Oliver and the Artful Dodger after Oliver

has been permanently removed from the streets.

B. The Way Fans Write

i. Fan Fiction in General

Thus, fandom is a mode of reception: conscious selection to watch (“read”) a show

(text) faithfully from week to week; rereading through reruns, video archiving, or buying the

DVDs; absorbing the text and then translating it into other types of cultural and social activity—

making meaning from it, not just transient comprehension. Minimally, fans feel the need to talk

about it with other fans (go to conventions, join fan clubs, go on fan chat sites) and many go on

to produce new texts.29 Fan fiction is a particular form of fan activity through which fans inject

their own semiotic readings onto texts that are seen by others as commercially produced

commodities. “For its practitioners, a TV show and its characters are but the starting point for

27 Fiske, supra note 14, at 36. 28 Id. at 40-47. 29 Henry Jenkins, “Strangers No More, We Sing”: Filking and the Social Construction of the Science Fiction

Fan Community, in THE ADORING AUDIENCE 208-36 (Lisa A. Lewis ed., 1992).

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new flights of literary invention -- conflicts, romances, whole storylines that the series' actual

creative team never dreamed of.”30

While there are a lot of male fans out there, fan fiction is written primarily by female

fans. In fact, fan writing falls within a long tradition of women’s literary culture. Throughout

history, women have struggled to “find ways to express themselves outside the dominant modes

of expression used by men.”31 In the 19th century, this often took the form of letters and diaries

and collective writing projects. The women used these mediums to share their thoughts about

“religion, gender roles, their sexuality and men’s, about prostitution, seduction, and

intemperance, about unwanted pregnancies and desired education, about their relation to the

family and the family’s to the world.”32

In many ways, fan fiction falls within this tradition and fulfills some of the same

functions. Women use the ready-made characters of popular culture as a set of common

references to share their experiences with other writers and readers they may never meet face-to-

face. They use these characters and their stories to focus on the same issues that 19th century

women wrote about: religion, sexuality, gender roles, family and professional ambition.33 The

most prolific fandoms are those that fall within the action/adventure and science fiction genres—

those genres typically dominated by men and whose shows address masculine concerns. To

accommodate the social experiences and meet the needs of women, these texts need to be

reworked.34 Women are socialized to accept male texts—to go see the horror flick because their

boyfriends want to see it; to watch the cop show because that is what their husbands want to see.

30 Schultz, supra note 26. 31 Jenkins, Star Trek Rerun, supra note 12, at 92. 32 Id. 33 Id. 34 Id.

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Therefore they find meaning on the periphery—they imagine the characters’ lives outside of the

textual narrative.35

For instance, a Star Trek fanfic (what fan fiction stories are often called) might retell a

particular episode from Lt. Uhura’s point of view. Or it might take the character of Nurse

Chapel and redeem her—taking her from always mooning over Spock to being a competent

nurse working towards her medical degree. One fan novel, Kista, written by Jane Land, has

Chapel and Spock married, but deals with the problems they face in marriage and the balancing

of a two career family and the needs of Chapel as a woman, a wife and a mother.36 These are not

concerns that Paramount would interject into Star Trek, but they are the concerns of the women

who watch the show and are struggling to balance their own careers, marriages and families.

“As fans attempt to reconstruct the feminine countertexts that exist on the margins of the original

series episodes, they, in the process, refocus the series around traditional feminine and

contemporary feminist concerns, around sexuality and gender politics, around religion, family,

marriage, and romance.”37

Not all fan fiction has this blatant of a feminist contextualization. But most of it does

take the textual material of the television show and inserts it into an on-going communal

discourse. It shifts the focus from the events of the story as given to the interpersonal

relationships of the characters. It can be centered on questions raised by the show—sticking to

the Star Trek fandom—how was Amanda (Spock’s human mother) able to communicate her

affection to Sarek (his Vulcan father)? Or it may ask questions beyond the barriers of the series

that producers might wish to suppress—like why was Uhura never promoted, but Sulu and

35 JENKINS, TEXTUAL POACHERS, supra note 14, at 114. 36 Jenkins, Star Trek Rerun, supra note 12, at 93. 37 Id. at 96.

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Chekov both have their own ships?38 Fan fiction works to raise issues of real-world concern to

viewers—a story about a breaking of the “prime directive” (Star Trek policy of not interfering

with developing cultures) can lead to a discussion about America’s intervention in third world

countries.39 For some people, it is easier to start to explore controversial ideas in fiction before

moving to discuss them openly—for instance, a woman may write a story about Uhura’s

marginalization as a character to open up a discussion about how she feels that women are still

marginalized in the workplace.40 Jenkins posits that, “organized fandom is, perhaps first and

foremost, an institution of theory and criticism, a semi-structured space where competing

interpretations and evaluations of common tests are proposed, debated, and negotiated and where

readers speculate about the nature of the mass media and their own relationship to it.”41 Fan

critics “pull characters and narrative issues from the margins; they focus on details that are

excessive or peripheral to the primary plots but gain significance within the fan’s own

conception of the series.”42

Fan fiction also works to fill in gaps in the original text. Often shows engender

contradictions and a lack of continuity. Fans try to develop explanation or fill in the gaps and

address the problems within their own texts.43 For instance, mid-way through Season 3 and

through Season 4 of Stargate SG-1, Jack starts to withdraw from and be needlessly cruel to his

best friend and teammate Daniel. The writers of the show never address this, never explain it.

But the fans noticed. There is an entire body of fan fiction that tries to explain it away—various

explanations surface. Some posit that Jack feels guilty because he promised Daniel he would

38 JENKINS, TEXTUAL POACHERS, supra note 14, at 82. 39 Id. at 83. 40 Id. at 84-85. 41 Id. at 86. 42 Id. at 155. 43 Id. at 103-4.

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save Daniel’s wife, but he was unable to do so. Those who write slash fiction (see below)

attribute it to the fact that Jack started to realize that he had feelings for Daniel and could not

deal with it, so pushed him away.44 Fan writers do not just reproduce the text so much “as they

rework and rewrite it, repairing or dismissing unsatisfying aspects, developing interests not

sufficiently explored.”45

There are ten general ways that fan fiction operates to rewrite a TV show46:

1. Recontextualization—these are vignettes that fill in gaps or provide explanation for

character conduct. The stories focus on off-screen action to navigate perplexing on-

screen conduct.

2. Expanding the Series Timeline—these are stories which look at characters’ backgrounds

or move forward to continue the series after it has ended.

3. Refocalization—these are stories which focus on secondary characters—usually women

or minorities. The writers work to give the characters their own voices or to redeem

characters who are inconsistently characterized.

4. Moral Realignment—fans invert or question the moral universe of the primary text. For

instance, a fan might write a story where Captain Kirk is an evil dictator and the

Federation out to conquer the universe. Often these types of stories also take a villain

and tell the story from his perspective—why did Darth Vader choose to leave the Jedi

and serve the Emperor?

44 See generally The Alpha Gate Fan Fiction Archive at http://www.thealphagate.com 45 JENKINS, TEXTUAL POACHERS, supra note 14, at 162. 46 Id. at 162-76. Jenkins divides these stories out into 10 categories, but most of them overlap more than one

category, often falling within 3 or 4. The fandom does not matter—examples of these can be found in every

“universe” be it Star Trek or Buffy.

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5. Genre Shifting—most fan faction falls within this category—shifting the focus from an

action-adventure story to one about character relationships. Fans might rewrite the series

as a romance, a mystery, a spy intrigue, etc.

6. Cross-overs—in these stories, writers take characters from one series and put them in a

story with characters of others. So, what would happen if Captain Kirk and Spock landed

on Tatooine and met a young Luke Skywalker or if they had to chase down Han Solo for

smuggling?

7. Character Dislocation—characters are removed from their original situations and given

alternate names and identities. There is a Stargate SG-1 story which takes the four main

characters and places them on the Oregon Trail in the Old West.

8. Personalization—in these stories, the series is integrated into the writer’s own experience.

These are usually comic stories where characters end up at fan conventions with the

actors who play them or fans are transported and find themselves within their favorite

show.

9. Emotional Intensification—these stories are known within the community as

“Hurt/Comfort” stories and they center on moments when the characters reach out and

truly connect with each other. They may be between characters of the same gender or

not; they are sometimes platonic, other times erotic. They ask the question of how

normally masterful characters face situations of dependency and vulnerability.

10. Eroticization—free from network censors, fans explore the characters’ sexuality. Some

just realize sexual subplots already within the main text (like pairing Nurse Chapel with

Spock). Others create relationships they would like to see (like Kirk and Uhura). Still

others take this chance to explore the homoerotic aspects of character friendships.

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Knows as “slash” fiction, this is the most controversial form of fan fiction because it is

seen as truly breaking canon with the original series as it pairs two characters of the same

sex (usually male—like Kirk and Spock) in a romantic, often highly sexual situation.47

Many of these forms of rewriting occur in a single fanfic. A “Hurt/Comfort” situation

often leads to an erotic encounter, which shifts the genre to more romance and involves

recontextualization and refocalization. This, then, is the effect of fan fiction. It reworks the

primary text—shifts from action to character relationships. Female characters who were

marginalized in the series take focus and the story speculates on the challenges that might face

them. Erotic aspects of the text are explored which could not be on network television—

sometimes taking homosocial friendships and exploring homoerotic relationships.48

ii. Slash

Slash is a wonderfully subversive voice whispering or shouting around the edges

and into the cracks of mainstream culture. It abounds in unconventional thinking.

It’s fraught with danger for the status quo, filled with temptingly perilous notions

of self-determination and successful defiance of social norms.49

No discussion of fan fiction can be considered complete without considering slash. By

far, it is the most controversial form of fan fiction, as it takes normally straight characters and

places them in homosexual situations that their creators never envisioned. In fact, often

corporate owners have turned a blind eye to fan fiction until they started seeing slash. Lucasfilm

saw it as pornography and drove it underground.50 The fan community is also divided on the

issue—some feel that it is simply not something the characters would ever do.51 However, those

who object to slash within the community often object quietly because the fan community is one

47 Id. at 186. 48 Jenkins, “Strangers No More, We Sing,” supra note 29, at 214-15. 49 JENKINS, TEXTUAL POACHERS, supra note 14, at 202. 50

ROSEMARY COOMBE, THE CULTURAL LIFE OF INTELLECTUAL PROPERTIES: AUTHORSHIP, APPROPRIATION

AND THE LAW 128 (1998) 51 BACON-SMITH, ENTERPRISING WOMEN, supra note 14, at 222.

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that operates on a basis of acceptance of difference. Fans are drawn to the community, in part,

because of this freedom from censure and discrimination, so critics of the genre are careful to

couch their discomfort in terms of a personal preference, not a censure of the community.52 In

the past several years, however, slash has become the most popular form of fan fiction and can

be found in most internet archives. Part of critics concerns have been their fear of the reactions

of the actors who play the characters. A Blake’s 7 actor who found out about it went on a

campaign to have the writers blackballed. However, it backfired as they were all well-known

and popular within the community and it ended with several fans dropping the show in protest

over his actions.53 Other actors find it amusing. Michael Shanks, who plays Daniel on Stargate

SG-1, quipped when asked about Jack/Daniel fiction, “Whatever floats your boat; whatever stirs

your coffee.”54

Why slash? What is its appeal? Like other forms of fan fiction, it is often a form of

textual commentary. The friendship, the homosocial desire or bond is there in the original text.

Society recognizes a continuum between female friendships and lesbian relationships, and

society is comfortable with that. However, in a patriarchal society, there are strict boundaries

about what is acceptable in male friendships.55 Slash breaks those boundaries by taking male

friendships and moving them down the continuum until the characters are lovers.

Thus, slash “throws conventional notions of masculinity into crisis by removing the barriers

blocking the realization of homosocial desire; slash unmasks the erotics of male friendship,

confronting the fears keeping men from achieving intimacy.”56 The focus is on a relationship

52 Id. 53 Id. at 208. 54 Michael Shanks interview in SFX April 2002, available at

http://www.savedanieljackson.com/originalspirit/sfx90ms.shtml (November 2003). 55 JENKINS, TEXTUAL POACHERS, supra note 14, at 202-3. 56 Id. at 205.

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that is mutual and equal—something that still seems unlikely with male/female characters. Slash

allows fans to explore what love between equals would be like.57 “Slash is not so much a genre

about sex [lots of slash stories do not have any sexual content, but are about the difficulties of a

homosexual relationship in a heterosexual world] as it is a genre about the limitation of

traditional masculinity and about reconfiguring the male identity.”58 On a socio-political level,

slash has opened doors and channels of discussion and debate between straight, lesbian and bi-

sexual women and men about the politics of sexuality and it has become a platform for gay rights

within the science fiction community.59 Star Trek slash, which Paramount tolerates without

much interference, has given the gay community a place to launch their campaign for a gay

character on one of the shows. Despite touting itself as socially progressive, the franchise has

repeatedly refused to truly explore alternative sexualities for its characters.60

III. The Corporate Interest: Copyright Rights and Infringement

Fans are the first ones to acknowledge that they do not own the characters they play with in

their fiction. Every fanfic starts with a disclaimer along the lines of,

Stargate SG-1 and its characters are the property of Showtime/ Viacom,

MGM/UA, Double Secret Productions, and Gekko Productions. I do not own the

characters and indeed am only playing with them for a little while. I am not

making any money from this and I'm still paying for everything I own so there's

very little point in suing me. No copyright infringement whatsoever is intended.

The story is for entertainment purposes only. At least I hope it's entertaining. The

original characters, situations and story are mine. Please check with me first if

you want to archive or link to this story.61

The fans know that they are appropriating media texts which belong to others, but they

seek to find ways to legitimate this appropriation. They have their own “moral

57 Id. at 193. 58 Id. at 191. 59 Id. at 221. 60 See Gay, Lesbian & Bisexual Characters on Star Trek - a 12-year Saga of Deceit, Lies, Excuses and

Broken Promises available at http://www.webpan.com/dsinclair/trek.html (November 2003). 61 Boo, “Mating Rituals” available at http://www.thealphagate.com (November 2003).

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economy.”62 They often style themselves as loyalists rather than infringers, and they see

their work as striving to save the property to protect it against abuse from the media

conglomerates who claim to own it.63 At the same time that they acknowledge ownership

over the characters and basic scenario set-ups, the fans resist the traditional property

rights of producers in favor of a reader’s right of free play with the material:

I still don’t agree with the concept that property rights over fiction...include any

rights of the author/producer to determine how readers or viewers understand the

offering...Fans’ mental play is no business of producers and neither are their

private communications, however lengthy. (Barbara Tennison, 1991)64

However, with the advent of the internet, the fans’ communications and stories are no longer

private. They are available to anyone with a computer. While the paper fanzines were kept

private for fear of legal action, they posed no real threat to copyright owners. Now that the

infringement is public, owners feel they must act to protect their rights or true competitors could

start to use it and claim that the owners waived their rights by not prosecuting the fan sites using

their protected property.65

Copyright was intended to promote the useful arts and sciences by giving authors and

inventors an exclusive right to exploit their property for a limited time.66 It has steadily been

expanded through the years. The original Copyright Act of 1790 protected works for 14 years

with a 14-year renewal. In 1909 the duration was expanded to 28 years, with a possible 28-year

renewal. The 1976 Act extended protection to the life of the author plus 50 years. In 1998, the

Sony Bono Copyright Extension Act extended the protection to life of the author plus 70 years.67

62 Jenkins, Star Trek Rerun, supra note 12, at 87. 63 Id. at 103. 64 JENKINS, TEXTUAL POACHERS, supra note 14, at 31. 65 Jenkins, Digital Land Grab, supra note 3. 66 U.S. CONST., art. I, § 8. 67 Copyrights Law, Professor Henning’s lecture September 24, 2003.

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The validity of this extension was recently contested as being unconstitutional.68 However, the

Supreme Court held that despite the wording in the Copyright Clause about “a limited time,” the

extension was Constitutional because life plus 70 years is still limited.69

The Copyright Act gives the holder a bundle of rights: (1) to reproduce; (2) to prepare

derivative works; (3) to distribute the work; (4) to perform the work publicly; (5) to display the

work publicly; (6) in the case of a sound recording, to perform the work publicly by way of a

device.70 Fan fiction does not copy the TV show or movie directly, but it probably infringes on

the right to create derivative works. Derivative works are defined as works “based upon one or

more preexisting works, such as a translation, musical arrangement, dramatization,

fictionalization, motion picture version, sound recording, art reproduction, abridgment,

condensation, or any other form in which a work may be recast, transformed, or adapted.” 71 By

taking an audio-visual work and transforming it into a short story or novel, the fan writer has

created a derivative work based on the original.

Fan fiction also infringes on the copyright in the characters themselves. The case law has

been rather confusing about the protection afforded characters. In the Sam Spade case, Dashiell

Hammet used Sam Spade again in radio sequels he wrote to The Maltese Falcon. Warner

Brothers owned the copyright in The Maltese Falcon and sued Hammet for infringement.72 The

court held that unless a character “constitutes the story being told,” the character is not protected,

but merely a figure moving through the story.73 However, later cases have cast doubt on this

test.

68 Eldred v. Ashcroft, 537 U.S. 186 (2003). 69 Id. at 187-88. 70 17 U.S.C. §106 (2003). 71 17 U.S.C. §101 (2003). 72 Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.2d 945 (1954). 73 Id. at 950.

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Walt Disney Productions v. Air Pirates dealt with the use of several Disney comic book

characters in somewhat questionable, adult, scenarios.74 The court acknowledged the Sam Spade

decision, but held that the characters were protected because, “comic book characters...are

distinguishable from literary characters, [and] the language does not preclude protection of

Disney’s characters.”75 It isn’t clear whether this is because Disney’s characters constitute the

story being told or whether there is a less stringent test for graphic characters. Trying to sort this

out, the court only injected more confusion into the matter. In MGM v. American Honda, the

court looked at the test laid out in the Rocky case which was a character delineation test.76 The

test asked whether the character was sufficiently delineated to warrant protection on its own.77

One rationale for applying this test to graphically depicted characters is that, “as a practical

matter, a graphically depicted character is much more likely than a literary character to be

fleshed out in sufficient detail so as to warrant copyright protection.”78

Applying this in MGM, the court held that James Bond was both the “story being told”

and sufficiently delineated to warrant protection.79 The courts adoption of two distinct tests has

led to some confusion as to the individual copyrightability of characters. The Rocky case is

probably most similar to fan fiction as that involved an unauthorized derivative work—a script

for a sequel using the character of Rocky Balboa.80 Fan fiction directly copies the characters—

there need be no question about substantial similarity or access. Fan writers have taken the

actual characters from a show and transplanted them into their own works of fiction. Under any

test, this is copying and later courts have accepted without much discussion that audio-visual

74 581 F.2d 751, 755 (9th Cir. 1978). 75 Id. 76 Metro-Goldwyn Mayer, Inc. v. American Honda, 900 F.Supp. 1287 (C.D.Cal. 1995); Anderson v.

Stallone, 1989 WL 206431 (C.D. Cal. 1989). 77 MGM, 900 F.Supp. at 1295. 78 Anderson, 1989 WL 206431, at *7. 79 MGM, 900 F.Supp. at 1296-97. 80 Anderson, 1989 WL 206431.

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characters are protected by copyright.81 Olson v. National Broadcasting Co., held that

“copyright protection may be afforded to characters visually depicted in a television series or in a

movie.”82 In addition, the characters are usually protected by trademark as well, for double

protection.

Thus fan fiction implicates at least two possible areas of infringement: direct copying of

copyright protected characters and the right to make derivative works. If this were all there were

to copyright law, fan writers would undoubtedly be found to be infringers. However, the

copyright system of the United States is one which acts, in theory, in the public interest.83 For

this reason, Congress enacted the Copyright Act with certain inherent limitations.84 Fair use is

one of those exceptions, codified by § 107 of the Copyright Act.85 The doctrine began as a

judge-made exception in the nineteenth century. In England, the doctrine was known as the “fair

abridgement” doctrine and it permitted certain abridgments of the works of others without

imposing liability.86 In 1803, an English court recognized the right to “fairly adopt part of the

work of another,” noting that courts must not “put manacles upon science.”87 In 1841, the first

American court considered the applicability of the doctrine. While the defendant’s use in that

case was not found to be fair, Justice Story laid out the factors a court should examine when

considering a claim of fair abridgment: “In short, we must often, in deciding questions of this

sort, look to the nature and objects of the selections made, the quantity and value of materials

used, and the degree in which the use may prejudice the sale, or diminish the profits, or

81 Olson v. NBC, 855, F.2d 1446, 1452 (9th Cir. 1988). The court recognized “copyright protection for

characters who are especially distinctive.” 82 Id. 83 U.S. CONST., art. I, § 8. 84 § 106 begins with the cautionary note “subject to sections 107 through 122...” [emphasis added]. 85 17 U.S.C. § 107 (2003). 86 JULIE E. COHEN, ET. AL, COPYRIGHT IN A GLOBAL INFORMATION ECONOMY 492 (2002). 87 Cary v. Kearsley, 170 Eng. Rep. 679, 680 (K.B. 1803).

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supersede the objects, of the original work.”88 The phrase “fair use” was first employed 28 years

later in Lawrence v. Dana.89 However for the next 100 years, courts looked at the factors laid

out by Justice Story as the most useful when deciding fair use cases.90

Congress finally codified the doctrine when it passed the Copyright Act of 1976.

Because it was only meant to codify what already existed, §107 did not give much guidance to

courts about how to apply the doctrine. “Although the courts have considered and ruled upon the

fair used doctrine over and over again, no real definition of the concept has ever emerged.

Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is

possible, and each case raising the question must be decided on its own facts.”91 Courts apply

the fair use doctrine on a case-by-case basis, so it can be difficult to predict the outcomes.

This uncertainty is probably one reason why no cases dealing with fan fiction have

reached the courts. (The other reason, of course, is that few fans have the monetary resources to

take on the corporations in court). The possible fair use defense is so strong that the corporate

owners are most likely afraid to test their luck in court for fear of setting a dangerous precedent.

Sending cease-and-desist letter is far easier as most fans comply with them. “If you are a

housewife in Nebraska and you receive a letter from Viacom’s attorneys telling you to remove

your Web site or they will take away your house and your kid’s college fund, you don’t think

twice about your alternatives. You fold.”92 The strength of the defense, however, is

demonstrated by the fact that often when fans do hire legal representation to fight back, the

companies fold. Rebecca Tushnet, and IP attorney in New York, has taken on the cause of fans,

88 Folsom v. March, 9 F.Cas. 342, 348 (C.C.D. Mass. 1841). 89 15 F.Cas. 26, 60 (C.C.D. Mass. 1869). 90 COHEN, ET. AL., supra note 86, at 493. 91 H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 65 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5679. 92 Jenkins, Digital Land Grab, supra note 3.

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sending replies to the cease-and-desist letters, laying out the foundation for a fair use defense.

She says invariably the corporations cease-and-desist harassing her clients.93

IV. The Solution: Fair Use

The majority of this section will consider the possible fair use defense for fan fiction, but

before addressing fair use, it is important to consider another defense fans may have. Fan fiction

is a fairly entrenched art form.94 Most, in fact probably all, media copyright owners have known

about it for decades. Many of the people working on the TV shows that fans write about enjoy

reading fan fiction. Staffers on Buffy and Angel respect the work fan writers do and are proud

that something they have created has inspired such an outpouring of imagination. Many of them

regularly read the fan fiction, only steering away from anything that might come close to

merging with the show—they do not want to be accused of stealing from the fans.95 Co-

executive producer Frank Spotnitz named a young, idealistic agent on The X-files after a fan

fiction writer who was struggling with melanoma as a tribute to her talent and love of the show.96

This acceptance, even lauding, of fan fiction by some owners may give fan writers an

implied consent argument. If owners know about the fan fiction writing and have done nothing

to quash it, they may have forfeited their right to attempt to stop fan fiction creation and

distribution.97 Other owners, however, have expressly forbidden fan fiction.98 This negates the

implied license when applied to their property, but there probably is still a fair use defense

however much the owners dislike it.

93 Email from Rebecca Tushnet to author, October 26, 2003. 94 See Section II, supra. 95 Schultz, supra note 25. 96 Id. 97 Meredith McCardle, Fan Fiction, Fandom, and Fanfare: What’s All the Fuss?, 9 B. U. J. SCI. & TECH. L.

433, 449 (2003). 98 Id. Anne Rice in particular has been vicious in her defense of her property, forbidding any fan fiction and

threatening fans with harsh legal action if they do not comply.

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Fans believe their actions to be fair use, and this belief may help them if owners ever

decide to take the next step and prosecute them for infringement. The Customary Use Theory

posits that a use should be found to be fair if it is “within...accepted norms and customary

practice.”99 The majority of America believes that personal, non-commercial uses that give

proper attribution should be fair. It is certain that the fan community believes this:

Yes, legally the characters are the IP of their creators or the studios if their

creators either sold the IP or created it while under contract to a studio. However,

non-commercial use of intellectual property is protected by fair use doctrine, and

fan fiction is all done by amateurs... even a very clueless judge would uphold the

right of a private citizen to write a story about a character and distribute it non-

commercially.100

Whether this is truly the fair use doctrine or not, it is what the public believes the doctrine to be.

“In practice, whether a particular use is deemed fair depends not only on the particular

circumstances, but also on underlying normative theories.”101

While limited, §107 does give some guidance as to where to start an analysis of fair use:

§107. Limitations of exclusive rights: Fair use

Notwithstanding the provisions of section 106, the fair use of a copyrighted

work...for purposes such as criticism, comment, news reporting, teaching

(including multiple copies for classroom use), scholarship or research, is not an

infringement of copyright. In determining whether the use made of a work in any

particular case is a fair use, the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit, educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relations to the copyrighted

work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted

work.102

99 Lloyd L. Weinreb, Fair’s Fair: A Comment on the Fair Use Doctrine, 103 HARV. L. REV. 1137, 1159-60

(1990). 100 Post by “Sir Winston” on http://www.slashdot.org (April 16, 2003). 101 COHEN, ET. AL., supra note 86, at 496. 102 17 U.S.C. §107 (2003).

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None of these factors is an absolute indicator of whether a use is fair or not. Courts must balance

each factor, looking at the surrounding circumstances and considering the public interest in order

to reach a decision. The uses listed (criticism, commentary, education, news reporting, etc.) are

those that “further the development of a common culture... [and] promote the progress of

learning and the arts. These uses also help to produce a public that is educated and

informed...about shared values, interests, and debates.”103 Fair use implicates the First

Amendment and public interest considerations as well.104

In general, “a court is more likely to excuse a use as fair if it is productive, adding

something new that enhances the benefit the public derives from the earlier copyrighted work.

Second, a court is also more likely to take a favorable view of uses that are reasonable and

customary, whether under an implied consent theory or under a more general theory of socially

acceptable conduct.”105 In fact, the question of whether a use is productive repeatedly shows up

in court decisions. Justice Blackmun was emphatic in his dissent in Sony that the uses listed in

§107, while not exclusive are all productive uses, “resulting in some added benefit to the public

beyond that produced by the first author’s work. The fair use doctrine, in other words, permits

works to be used for ‘socially laudable purposes.’”106 Fan fiction is highly productive, with the

fan writers adding their own stories, plots, interpretations and meanings. Fiction which builds

upon what came before is the tradition of Western culture, thus making it a reasonable and

customary use. This overall view supports a finding of fair use for fan fiction. If such a use is

103 COHEN, ET. AL, supra note 86, at 496. 104 Woods v. Universal Studios, Inc., 920 F.Supp. 63, 65 (S.D.N.Y. 1996). 105 Cohen, et. al., supra note 86, at 541. 106 464 U.S. at 477-78 (Blackmun, J., dissenting).

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found, then despite copying characters and making derivative works, fan fiction will not be

found to be infringing.107 A balancing of the four factors also leads to this conclusion.

A. The Purpose and Character of the Use

The first consideration under this prong is whether the use in question is commercial or

non-commercial. Commercial uses are presumptively unfair.108 A non-commercial work, on the

other hand, is far more likely to be found to be fair. “The crux of the profit/nonprofit distinction

is not whether the sole motive of the use is monetary gain but whether the user stands to profit

from exploitation of the copyrighted material without paying the customary price.”109 Fan

fiction is a non-commercial, non-profit exercise. Fans “respect the legal prohibition against

selling their writings, videotapes and artworks for profit.”110 Indeed the disclaimers fans put

before their works emphasize the non-commercial aspect of fan fiction, arguing from the start

that they ought not to be prosecuted for their actions: “Stargate SG-1 [sic] and its characters are

the property of Showtime/ Viacom, MGM/UA, Double Secret Productions, and Gekko

Productions. I do not own the characters and indeed am only playing with them for a little while.

I am not making any money from this and I'm still paying for everything I own so there's very

little point in suing me.”111

The disclaimers themselves often act as criticism of the producers as well, claiming that

they are mistreating the characters and the fanfic writers only rescuing them: “We all know

Stargate SG-1 [sic] is owned by MGM, Stargate Productions, Gekko Productions, et al, even

107 17 U.S.C. §107 (2003). 108 Sony, 464 U.S. at 449. 109 Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 562 (1985). 110 Coombe, supra note 50, at 126. 111 “Majelb,” Like Everything’s Ok, archived at http://www.thealphagate.com (November 2003).

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though they *suck* at it. I'd own them if I'd won the lottery. But I didn't, so I don't.”112 “There's

a real fine line between what's theirs and what's ours; and although the characters may belong to

them - all the words are ours.”113 “Stargate SG-1 [sic] and the characters therein are not mine.

Those who are responsible for them, don't deserve to be.”114 “Owned and poorly operated by

MGM, SciFi, Gekko, etc. We really need to pool our quarters, ladies and gents. We do.”115

The second consideration within this prong is whether the use supplants or transforms the

original work. Uses which are highly transformative, adding a lot of new material to that which

is taken, changing its nature, are more likely to be found to be fair.116 Fan fiction is highly

transformative.117 While it borrows characters and premises from the original programming, it

takes those characters and premises and adds the fan writers’ interpretations, meanings, thoughts

and desires to the story. What results is something noticeably different than the original. What

was action-adventure is now romance; characters who were straight are now bi-sexual;

secondary characters take center stage.118

§107 lists several uses that might be fair—criticism and commentary are two of them. As

discussed in Section II, much of fan fiction is criticism and commentary. Fans take the source

product and rework it to meet their own needs and desires, thus commenting that the original

lacked something.119 As an example, one fan novel, written in 1976, offers a critical look at the

world of the Federation in Star Trek. Jacqueline Lichtenberg’s fan novel Federation Centennial

rethinks a number of episodes which have sparked ideological and academic criticism by having

112 “Marcia,” Aversion Therapy 10, archived at http://www.thealphagate.com (November 2003). 113 “Mor_tu,” The Weight of a Shadow, archived at http://www.thealphagate.com (November 2003). 114 “Teand,” A Reason to Smile, archived at http://www.thealphagate.com (November 2003). 115 “Sideburns,” Marking Time, archived at http://www.thealphagate.com (November 2003). 116 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). 117 See Section II, supra. 118 Id. 119 JOHN TULLOCH AND HENRY JENKINS, SCIENCE FICTION AUDIENCES: WATCHING DR. WHO AND STAR TREK

175-76 (1995).

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Kirk face a tribunal that questions his imposition of human morality on alien cultures when

violating the Prime Directive.120 “Lichtenberg examines the ideological assumptions governing

Star Trek, focusing particularly on the series’ representation of the relationship amongst the

many alien races that constitute the Federation.”121 Academics who study the Star Trek

phenomenon often focus on the same episodes that Lichtenberg criticizes in her novel, looking to

see what real world parallels exist within the supposedly utopian society:

If academic critics step outside the narrative’s fictional framework to focus on

larger social determinants or institutional contexts, fan criticism operates within

the fictional world, framing interpretations that are consistent with fandom’s

prevailing realist aesthetic. Ideological contradictions are understood as conflicts

between characters and the alien cultures they represent rather than between

opposing discourses within a constructed text.122

But the results and the impetus for the criticism is the same.

Henry Jenkins has argued that, “fan writing is a literature of reform, not revolt.”123 It

seeks to change things from within the system. While it is a feminine response to mass media—

seeking to impose a feminist reading on a masculine text—it is not a Betty Friedan type of

feminism calling for a separation of gender. Instead, fan fiction works to explore the dynamics

of relationships between characters as it seeks to find a feminism of inclusion, a feminism of

sharing of feelings and lives between men and women—one of negotiating our differences and

embracing them and learning from them.124 Fan fiction thus implicates the political and social

concerns of a community as it is shared between writers and readers.125 Jenkins perhaps makes

the most eloquent argument for the public interest fan fiction serves:

120 Id. 121 Id. 122 Id. at 176. 123 Id. at 202. 124 Id. 125 Id. at 203.

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The political importance of fan fiction cannot therefore be reduced to the content

of the stories alone, but must be understood in terms of the dramatic step towards

self-determination that comes when someone decides to share their story with the

wider women’s community of fandom...Fandom constitutes a site of feminine

strength, rather than weakness, as women confront and master cultural materials

and learn to tell their own stories, both privately and collectively, through their

poached materials...[There is a] collective and political basis [for] these stories,

[they serve a role] not as self-expression, but rather as collective cultural capital

within a rich and varied subcultural community.126

The most controversial form of fan fiction, slash, is even more transformative in its use,

turning straight characters into gay characters and questioning the very fabric that makes up

gender identity within the source product and the “real” world.

Slash…represents a powerful form of resistant reading, an active appropriation

and transformation of dominant media content into forms of cultural production

and circulation that speak to the fan community’s needs and interests. Slash has

proven empowering to its female fan readers and writers, helping them to

articulate and explore their sexual fantasies, bringing them together into a

community across various barriers which isolate them. Slash, by translating

politics into the personal, gave them a way to speak about their experiences and

commitments. Some members of [the gay fan community] have embraced slash

as a form which can also express their fantasies about the series and their desires

for its future development. One slash zine presented itself as a reaction to the

failure of a letter writing campaign: “Our motto is: If Paramount can’t give us that

queer episode, just make it so!”127

Such a non-commercial, transformative use of the original property weighs the first prong of the

fair use doctrine in favor of the fan writers.

Courts have consistently favored transformative works as fair use. In Suntrust v.

Houghton Mifflin Company, the court looked at a novel which parodied Gone with the Wind.128

The Wind Done Gone retold the Margaret Mitchell’s novel from the position of Scarlett’s black

half-sister.129 The novel copied a great deal from the original. The original was a fictional work,

entitled to strong protection under the copyright laws. The Wind Done Gone was a commercial

126 Id. 127 Id. at 264 [emphasis added]. 128 268 F.3d 1257 (11th Cir. 2001). 129 Id. at 1269.

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work. However, the court found that it was highly transformative and not likely to affect the

market for potential derivatives (see below).130 While the novel was considered a parody of the

original, a work does not have to be a parody to be protected. Indeed, “parody” is not even one

of the forms listed in §107, but it has been consistently protected. However, it is the

transformative nature of the work that the courts consider most. Court ask whether the new work

merely supersedes the original,

or instead adds something new, with a further purpose or different character,

altering the first with new expression, meaning, or message; it asks, in other

words, whether and to what extend the new work is ‘transformative’...the goal of

copyright, to promote science and the arts, is generally furthered by the creation

of transformative works.131

Fan fiction may also claim to be fair use as an educational use. Many writers use fan

fiction as a way to learn how to write. “Historically, fan publishing has provided an important

training ground for professional writers, a nurturing space in which to develop skills, styles,

themes and perhaps most importantly, self-confidence before entering the commercial

marketplace.”132 Marion Zimmer Bradley, noted science fiction and fantasy author, started her

writing career writing fan fiction.133 If a writer would like to write for a television show, it is

important to learn to use the existing characters—to write with their voices and to be true to the

existing characterizations. It is the fantasy of every fan, of course, to be offered a job writing for

television. It is a fantasy that is easy to dismiss, except for one thing—it has happened.

Meredyth Smith discovered Buffy the Vampire Slayer in her basement apartment in New

York City. She was instantly hooked and became a member of the online fan club, The Bronze.

She started posting on the message board regularly, becoming an active member of the fan

130 Id. at 1271-72. 131 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 132 Jenkins, “Strangers No More We Sing,” supra note 29, at 212. 133 Id.

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community. She avidly wrote Buffy fan fiction, working to perfect her craft. In 1998, she flew

to LA for a fan convention. She met someone who got her a job as an assistant to the producer

on Strange World. After the show was cancelled, she joined the staff of Angel, a Buffy spin-off,

as a script coordinator. A year later, she was a writer on the show.134 In the span of two years

she went from sitting in front of the television watching her favorite show to writing for it. She

credits her involvement in the fan community with her success.135 Such stories invigorate the

fans toiling away at their computers, searching for just the right word, just the right expression to

convey what they see in their heads to a greater audience.

B. Nature of the Copyrighted Work

Courts generally give more protection to works of fiction and less to works of fact.136 As

fan fiction is generally not likely to be written about facts, it is safe to assume that the works the

fiction is based on are highly protected. However, this prong also has been interpreted to have a

published/unpublished distinction to it. Unpublished works are given a great deal more

protection than published works because it is assumed that the copyright owner has an interest in

limiting dissemination.137 “This supports giving less protection to a work which has been

broadly distributed,” like television shows which are broadcast to the general public.138

C. The Amount and Substantiality of Use

This is a difficult analysis where fan fiction is concerned. Use of a copyrighted character

constitutes use of the entire material. However, only a few characters have been found to stand

outside their works completely—i.e. Superman, Mickey Mouse, etc. Luckily for fan fiction

134 Schultz, supra note 26. 135 Id. 136 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994). 137 See 1 Paul Goldstein, Copyright § 10.2.2 at 10:53. 138 Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L.

REV. 651, 677 (1997).

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authors, the use of an entire work does not mean that fair use cannot be found.139 The Court held

that this factor should be considered along with the other three to see if it is “reasonable in

relation to the purpose of copying.”140 Fan fiction could not fulfill its communal and political

purpose without relying upon the common characters and premises that make up the cultural

community. Therefore, this borrowing might be legitimate because of the transformative, non-

commercial use of fan fiction.141

D. The Effect on the Market

The fourth and final factor that courts consider when deciding if a use is fair is the

infringing work’s effect on both the current and potential markets. This factor is closely tied to

the first. There is a presumption against finding market harm when a use is noncommercial.142

A second presumption exists against finding harm from transformative uses, because the

transformation precludes simple market substitution.143 Fan fiction is both of these. It does not

cause actual harm to the television show it comments on. In fact, it keeps fans excited about the

show from week to week and loyal to the characters.144 And it is illogical to think that an

amateur short story could ever substitute for a television show—they are in two different

markets.

However, this factor also considers the effect on potential derivative markets.145 It is

possible that Star Trek and Buffy and Stargate SG-1 and the other television shows could choose

to exploit the derivative market of television show-based fiction. In fact, those listed above, and

many others, have already done so. Walk into the science fiction section of the local Barnes and

139 Sony Corporation of America v. Universal Studios, 464 U.S. 417, 450 (1984). 140 Campbell, 510 U.S. at 586. 141 Tushnet, supra note 138 at 678. 142 Sony, 464 U.S. at 427. 143 Campbell, 510 U.S. at 591. 144 JENKINS, TEXTUAL POACHERS, supra note 14, at 65-55. 145 Campbell, 510 U.S. at 571.

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Noble, and you will find an entire section of Star Trek novels and a substantial number of Buffy

and Stargate SG-1 novels as well. But fan fiction does not affect this market either.

These novels read very much like the television show. Because of their written form, a

reader may get a little more insight into a character’s thoughts, but Star Trek novels are about

space adventure and meeting new species and Buffy novels are about fighting some big, bad Evil.

While the owners of these franchises may license the writing of fiction based on the show, they

most likely would not consider licensing a line of Star Trek romance novels or Stargate SG-1

homosexual erotica. “The market for potential derivative uses includes only those that creators

of original works would in general develop or license to others to develop.”146 In addition,

copyright owners are not likely to license stories that criticize their version of the universe that

the characters reside in. As the Court reminds us in Campbell, “there is no protectible market for

criticism.”147

Even if owners licensed stories with the same themes and concerns of fan fiction, there

would still be little effect on that market. Fan fiction is first and foremost an amateur endeavor.

While much of it is good, a great deal of it is really badly written. As per the educational

function discussed above, writers often use fan fiction as a way to learn to write. It is fascinating

to read, but licensed derivatives would be professionally written and thus hold a different appeal.

Besides, such derivative works are marketed to a specific demographic—the fan. While fans are

producers, they are also consumers—as evidenced by the success of the licensed novelizations of

the television series. There is no reason to assume that just because fan fiction is available a fan

would not go out and buy a professionally written story about characters they love.

V. Conclusion

146 Id. at 592. 147 Id.

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Fan fiction picks up on a long tradition of storytelling—taking characters known to the

community and continuing their adventures, with each storyteller adding her own spin to the

narrative. It serves several communal and political needs, providing a means of communication

with like-minded individuals in a society that has become fragmented. It allows women to

rewrite narratives in such a way that they express the needs and interests of a feminine audience.

It gives marginalized characters voices to speak to social concerns. It identifies underlying

tropes and expands them to the outside world. It turns known universes on their respective ears

as it struggles to make a semiotic meaning that is broader than the source product’s originators

ever imagined.

More and more our common culture is being copyrighted and controlled by media

conglomerates. Mass media has displaced the traditional folk practices that took stories and

retold them again and again, “improv[ing] the fit between story and culture, making these stories

central to the way people thought about themselves.”148 We speak the language of the sitcom

and the commercial. “If we are going to tell stories that reflect our cultural experiences, they

will borrow heavily from the material the media companies so aggressively marketed to

us...Media culture...has become an important public resource, the reservoir out of which all

future creativity will arise.”149 In such a situation, fan fiction must be allowed as fair use. It is

noncommercial, non-profit, highly transformative work that comments on our media culture and

teaches writers how to craft a well-written story. It affects no market that the owners would

license. It causes no harm that the owners can identify—if anything it helps increase the desire

for their product. If media culture is truly our culture, then we need to be “concerned about how

148 Jenkins, Digital Land Grab, supra note 3. 149 Id.

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the corporations keep ‘infringing’ on our cultural wellspring” and be willing to draw the line that

says here is where your ownership ends and the public’s begins.150

150 Id.