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Fan Fiction and Copyright

an essay by Judith Gran

Originally posted to the Society for Slash Diversity and COCO CHANNEL, late August 1999.

In a discussion following up An interview with Killashandra, raku wrote:

> Judith I think believes we are not infringing in web or print production, but she'll speak for herself.

Well, then, I guess I'll have to jump in here! Will try to avoid writing a brief, 'cause if I did, it would be the third one this week.

In my experience over the years of talking and writing about copyright issues with Trek fans, the biggest hump to get over (so to speak) seems to be the concept that there are *exceptions* in copyright law to the general rule that you can't copy someone else's product. People get stuck on the undeniable reality that there is "substantial similarity" (the term of art in copyright law) between fan fic and the parent product, so how can fan fic *not* be infringing?

Yes, fan fic copies. That doesn't resolve the copyright issue, though, because of those pesky exceptions.

I believe that non-commercial fan fic falls squarely within the "fair use" exception to the exclusive rights of the copyright owner. I base this on a reasonaby exhaustive reading of the case law, treatises, legislative history of the U.S. copyright statute and so forth. "Fair use" is a statutory EXCEPTION to the exclusive rights of the copyright owner. It "confers a privilege to use copyrighted material in a reasonable manner without the owner's consent." *Belmore v. City Pages, Inc.,* 880 F.Supp. 673, 676 (D. Minn. 1995).

Since fair use does not require the copyright owner's consent, I'm not even going to go into the issue whether Paraborg et al. have implicitly consented to fan fic or lost the right to enforce their copyrights through inaction. That's a whole 'nother legal doctrine known as estoppel, and I want to stick to one issue for the moment.

Fair use is one of a number of statutory exceptions to the exclusive rights of the copyright owner. Other exceptions apply to reproduction by libraries and archives, performance or display in the course of teaching activities, secondary transmissions other uses of copyrighted material. Fair use (which originally developed in the case law and eventually was codified in the statute) is the general, catch-all concept that covers other potential exceptions.

The fair use section of the statute is 17 U.S.C. 107, "Limitations on exclusive rights: Fair use." That section states, "Notwithstanding the provisions of 106 and 106A, the fair use of a copyrighted work ... is not an infringement of copyright." It's important to be clear about this from the get-go: Fair use is NOT INFRINGEMENT. It's not "infringement-but," is it not infringement at all.

How do we know whether a particular use of copyrighted material, in this case fan fic, is "fair use"? Well, the "fair use" section of the statute, 17 U.S.C. 107, sets forth four "fair use factors" that the courts must consider in deciding whether a particular use if "fair." Like any balancing test, the list of factors is not, in itself, terribly helpful. You have to turn to the case law to see how the courts have handled them. The case law is where the factors get converted into logical rules, propositions with an "if ... then" structure that the ordinary life form can actually use as a guide to action.

But since the factors are there in the statute, I'd better quote them:

(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 relation 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.

It's pretty commonplace to note that the fourth factor, the impact on the market for the original, is by far the most important of the four. In fact, the other rules are important primarily because they help to resolve the all-important fourth question: How will the market for the original be affected if this use is allowed?

To understand how the factors are applied in practice. you need to turn to the two most recent pronouncements on fair ue by the U.S. Supreme Court, the so-called Sony Betamax and 2 Live Crew cases. Applying the rules enunciated in those two cases leads me to conclude that fan fic is fair use because it is non-commercial and transformative.

In the first case, *Sony Corp. of America v. Universal City Studios, Inc.,* 464 U.S. 417, 451 (1984), the Court held that a non-commercial use is presumptively fair. That means that the copyright owner must present evidence sufficient to *prove* the likelihood of harm. "A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." Id. As a litigator, I can't overemphasize the importance of the burden of proof. It means that if all the copyright owner has to present is speculation about how the market could be affected, the user of the material wins. It's worth remembering that the district court in Sony characterized the studio's problem with home videotaping as "philosophical" rather than driven by "commercial judgment." Id. Sound familiar?

Sony gave us the rules for non-commercial uses: the second case, Luther Campbell, aka Luke Skyywalker [sic] v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994) gave us the rules for "transformative" uses. In that case, the Court held that 2 Live Crew's parody of "Oh Pretty Woman" was a fair use despite its plainly commercial nature. Campbell is by far the Court's most comprehensive explication of the "fair use" doctrine to date, and if you're going to read any of the case law at all, I strongly commend Justice David H. Souter's literate and witty opinion (it shows that a friend of Christa McAuliffe's husband can't be all bad.)

Under the Supreme Court's interpretation of "fair use" in Campbell, I'd feel very comfortable defending K/S fan fiction as a fair use of Star Trek. The Court analyzed each of the four fair use factors as they apply to "transformative" works:

1) The nature of the use. A work that "transforms" the original and adds something new with a "further purpose, meaning or character" is more likely to be fair than a work that merely "supersedes" or "supplants" the original.

2) The nature of the copyrighted work. This factor recognizes that creative works "tend to be closer to the core of copyright protection" than factual works. Yet some works by their very nature borrow from publicly known, expressive works. This was the case with 2 Live Crew's parody. The Court observed that this factor is probably "not much help" in the case of a transformative work, in which the creators *must* consume the original to produce the derivative work.

3) The amount and substantiality of the portion used. The Court stated that the fundamental question here is not the amount of copying in a purely quantitative sense, but the nature of the copying. Is it the kind of copying that reveals a dearth of "transformative" character?

4) The effect upon the market for the original (and licensed derivatives). This factor requires courts to consider, not just the extent of market harm caused by the particular actions of the alleged infringer, but also "whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market" for the original. NIMMER ON COPYRIGHT 13.05[A][4], p. 13-102.61. The Court in Campbell recognized that a "transformative" work is likely to serve a different market from the original because, unlike a verbatim copy, it does not serve the same function as the original.

How would these concepts apply to fan fiction? Clearly, the essence of fan fiction is a transformative use of Star Trek; fan fiction does not borrow from Star Trek merely to avoid "drudgery." Fans must consume the original in order to write fan fiction; moreover, fan fiction presumes that *its* consumers also have consumed the original. Slash fan fiction is not a market substitute for the original or potentially licensed derivatives since none exist or are likely to in the foreseeable future.

Remember that given the evidentiary presumption in favor of fairness for a noncommercial use, the copyright owner must prove harm to the market for the original; it's not enough to speculate that such harm will occur. If Paramount were to sue a K/S fanzine publisher, I believe the fundamental issue to be tried would be the effect of K/S zines on the market for licensed Star Trek products and spinoffs such as commercially-published novels and new TV series and films.

If I were representing the zine publisher I would try to prove that: (a) In almost thirty years of unrestricted, unregulated fanzine publishing, Star Trek fanzines have never commanded a market of more than a few thousand purchasers. For K/S zines, the figures are much lower (most zines now have a circulation of about 125.) Because of the tiny market for K/S fan fiction, the copyright owner will never decide to license it even if for some unlikely reason Paramount wanted to get into the slash business. Further, even if each K/S zine sold represented the loss of a sale to Paramount, the market harm would be de minimis.

I would also show that (b) the sale of zines does not, in fact, result in loss of sales of licensed Star Trek products. Purchasers of K/S zines invest heavily in commercial Star Trek products, e.g. videos, novels, T-shirts, posters and multiple viewings of the films. In addition, K/S fan fiction brings fans together at conventions, where they become a captive market for licensed products.

And I'd show that (c) K/S fan fiction keeps alive its readers' interest in Star Trek and its progeny, rather than the opposite. I'd present systematic evidence to prove the above, including surveys showing K/S fans' actual purchasing practices as compared to scientifically-chosen control groups from the markets identified by the copyright owners and licensees as targets for their products. Since it's unlikely that the copyright owner could produce evidence of market harm, I'd feel comfortable about our chances of success.

In sum these are the rules that emerge from the case law:

1) Infringement is PRESUMED when the allegedly infringing work is (a) commercial and (b) copies the original verbatim.

2) Infringement is NOT PRESUMED where the allegedly infringing work is a) commercial and b) transforms the original.

3) NON-infringement is PRESUMED where the allegedly infringing work is non-commercial, EVEN IF it is NOT transformative but merely copies the original verbatim.

4) A fortiori, a non-commercial, transformative use of the original would be entitled to an even stronger presumption of fairness. This is especially so in the case of a non-commercial, transformative use that presumes its consumers will also have consumed the original.

Although since Campbell there is no hard and fast presumption of "unfairness" against a commercial use, if I were a zine publisher concerned about the legal status of my publications, I'd keep my fanac nonprofit. Incidentally, it's worth remembering that the only zine that Paramount ever threatened to sue for copyright infringement was the genzine Dreadnought Explorations, which Paramount went after because of its similarity to commercially- licensed professional fiction. When I was a law student, I interviewed Bruce Hosmer, the attorney handling Star Trek products for Gulf & Western, about this issue and he told me that DE was ordered to cease and desist because the photograph of the Enterprise on the cover suggested to the reader that this was an "official" Star Trek product. Mr. Hosmer also stated that he thought it was possible for a fanzine to be a "fair use," though understandably as the representative of the copyright owner he took a fairly restrictive view of the type of zine he considered "fair." Under his standard, though, I'd have to say that an a/u zine set in pre-Reform Vulcan, in which the characters are long-haired warriors and love slaves and may even have different names, has a certain claim to "fairness" ... but I'm not about to say anything here that will discourage good, "realistic" K/S. I don't think I need to, though, since in my opinion all nonprofit K/S fiction qualifies as "fair use."

OK, those are my thoughts for the day.


Judith Gran is a licensed attorney who practices law in Pennsylvania and several other states. However, this article is not intended as legal advice. For advice and assistance in a particular case, you should consult your own attorney.



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