The Fandom Problem: A Precarious Intersection of Fanfiction and Copyright
18 Intellectual Property Law Bulletin 183, 2014
30 Pages Posted: 4 Sep 2014
Date Written: May 20, 2014
Every few years, popular magazines and news sources seem to rediscover the existence of fan works and fanfiction. Pointing to various online communities and websites that allow fans to share their work, the media marvels at the variety and creativity of this “new” medium, implying that fanfiction is solely a product of the Internet. Fanfiction, however, is not exclusively an Internet phenomenon.
Despite its current popularity and growing presence in our social consciousness, fanfiction existed long before the Internet. The concept of taking popular characters from an existing work of fiction and recreating them in another, by altering their names or the setting in which they exist, is an essential part of entertainment. The popular new Sherlock Holmes television series on the BBC, Sherlock, and the CBS series, Elementary, are two very different interpretations of Sir Arthur Conan Doyle’s famous detective adventures. These two shows represent the essence of fanfiction — taking something that is loved and recreating it from a different perspective. Profit is all that separates the BBC’s Sherlock from the average piece of fanfiction.
The fandom problem — the existence of a growing body of derivative works based on copyrighted content — is only a problem if the derivative work right reserved to authors by the 1976 Copyright Act continues to exist in its current state. To be rid of the fandom problem, some have argued that an exception should be made specifically for fan works under the fair use doctrine. Such an exception seems unlikely, however, given the malleable nature of the doctrine. The better solution to the fandom problem is to revise the derivative work right to exclude fan works and similar creative content from the category of infringing. Allowing people to produce creative work based on ideas of others without fear of a lawsuit would encourage creativity and “promote the progress of...[the] arts,” as envisioned by the writers of the Constitution.
Keywords: Fanfiction, copyright, derivative work, fair use
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