September 22, 2019 Feature

Into the Fandom-Verse: Fanworks and Fair Use

Heidi Howard Tandy

©2019. Published in Landslide, Vol. 12, No. 1, September/October 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Social media in 2019 remains vibrant, in large part, because of fans who are creating and sharing content.1 In the last decade, lawyers have examined fan- created content and follow-on works,2 and how they engage with copyrighted works and trademarks owned by third parties. The content includes numerous mediums and involves numerous social media platforms: fans record a favorite song during a concert and share it on Instagram; vidders turn a classic film into a musical and share it on YouTube; graphic designers or CGI artists create fanart and share it on Tumblr; a commentator makes a movie scene into the perfect meme to share on Twitter; video game fans stream playthroughs on Twitch; or someone develops unique creative material in an up-and-coming social media platform.

A follow-on work continues, is inspired by, adds to, or provides a different perspective on a previously created work. Follow-on works are created by fans (and sometimes former fans) and shared online, at conventions and meet-ups, and in classrooms at schools. These works include amalgamations of stories as comics, cartoons, memes, rock songs, musicals, poetry, costumes, and written works.

Fanworks are often described as anything that is created “by fans, for fans.” Fanworks consist of numerous media mediums including: meta, cocktail recipes, and cookbooks; three-dimensional fanart, CGI images, manips, and handicrafts such as quilting and knitting; videos like fanvids, documentaries, and the BBC series Sherlock; audio works from podcasts, audio plays, and filks to pop songs like songs about Superman by the Spin Doctors, REM, Laurie Anderson, and Three Doors Down; printed zines, short stories, and novels; staged works like Wicked, Hamilton, 3C, and the recent high school stage play production of Alien;3 and websites like MuggleNet and didthanoskill.me.

These days, companies rarely take fans to court; in recent years, it has generally happened when the fanworks intersect with commerciality in a way that is deemed significant by the copyright holder and/or trademark owner. For instance, businesses like the game and toy company Hasbro, the largest toy company in the world, created licensing procedures that are posted on their websites. These procedures provide fans “safe harbors,” which are often more restrictive than what would be allowed under fair use. However, these procedures provide peace of mind to those who want to create follow-on works and not fear a lawsuit, even if the guidelines manifest a chill on their creativity. Similarly, associations like the National Football League heavily promote their claims that use of phrases like “Super Bowl” may infringe on their trademarks, even if the law does not specifically support the breadth of their claims.

This article will look at the concept of fair use as it intersects with fan-created content, discuss recent cases involving fan-created content, and address how businesses can balance their copyright and trademark rights, their interest in allowing fans to be creative in their fannishness, and the rights that fans themselves have regarding the content they create and share.

Fair Use

During the final season of HBO’s Game of Thrones, the website Politico engaged in a weekly write-up of the fictional political happenings in Westeros.4 The columns were written as “in-world” recaps of characters’ choices and decisions—e.g., “Military analysts tell Playbook the developments do not bode well for the North, which could see its battleplan splintered by feuding at the highest levels of the Targaryen administration.”5 These recaps are a form of fan fiction (fanfic), written in Politico’s noted “Playbook” style, interspersing summary, analysis, and prediction. Politico is a commercial website, but nonetheless the fanfic it publishes falls under the definition of “fair use.”

Fair use protects Americans’ free expression by putting restrictions on how a copyright holder can restrict others’ use of copyrighted material, and sets out a wide range of ways in which everyone can use copyright-protected works without getting permission or paying a licensing fee. U.S. courts have held that fair use is not merely excused by the law, “it is wholly authorized by the law.”6 When a copyright holder believes that a follow-on work infringes on its rights, it needs to determine whether that work is permitted under fair use before sending a Digital Millennium Copyright Act (DMCA) takedown notice. A study by the Organization for Transformative Works found that most of the fans who participated in a survey about fan creativity and copyright understood at least the general parameters of fair use.7 Thus, any copyright holder that initiates DMCA takedowns of fan-created content should be aware that many fans know when it is appropriate to send a counter-notice, and what it should contain.

The U.S. Copyright Act8 provides that certain kinds of uses of copyrighted material are fair use, and therefore are not infringing. Criticism or commentary on the underlying work, such as in the form of reviews or “meta” analysis, is fair use. The law also provides a list of factors to consider in determining whether a particular use is allowed. These factors include: (1) the purpose and character of the use; (2) whether such use is of a commercial nature or is for nonprofit educational purposes; (3) the nature of the copyrighted work (whether it is a published work or not); (4) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (5) the effect of the use upon the potential market for or value of the copyrighted work.9 No single factor is determinative—not even whether a work is commercial, like the “Westeros Playbook” posted on and distributed by Politico’s ad-supported website.

Some fan communities have the custom and practice of avoiding selling fanfic or fanart, or avoid revenue streams like Patreon, Ko-fi, advertisements, or tip jars, because of a long-standing belief that commerciality could be a tipping factor as to whether fair use applies or not,10 even though it is not a sole determining factor under current law. Cases like Author’s Guild v. Google clarify that some of the “universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.”11

Many copyright holders have successfully argued that the purpose of copyright is to reward the labor of the creators of the work. But, the U.S. Constitution states that Congress can regulate copyright to “promote the progress of science and useful arts.”12 In a recent Dr. Seuss Enterprises v. ComicMix order, the judge quoted Campbell v. Acuff-Rose, noting that “copyright law’s purpose [is] ‘to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works.’”13 Thus, copyright protects the creator’s original expression, while not barring others from building upon the ideas and information conveyed by a work.

Recent Cases

In March 2019, the trial judge hearing the case of Dr. Seuss Enterprises v. ComicMix examined the blend of visual and rhyming styles from Dr. Seuss’s Oh, the Places You’ll Go! (Go!) with concepts, characters, worlds, ships, costumes, and even expressions from Star Trek in ComicMix’s parody book. Oh, the Places You’ll Boldly Go! (Boldly) “makes liberal (if not exclusive) use of third-party characters from Star Trek, mixes them with non-Seussian elements and worlds from Star Trek, and it creates its own Seuss-like rhymes using Star Trek wordplay.”14 While the Star Trek copyright and trademark holders took no action against the book, the estate of Theodor Geisel (a.k.a. Dr. Seuss) did. ComicMix “did not copy verbatim text from Go! in writing Boldly, nor did they replicate entire illustrations from Go!15 While they “certainly borrowed from Go!—at times liberally—the elements borrowed were always adapted or transformed.”16

A similar examination was done by the court in Authors Guild v. Google, where the Second Circuit noted that only a small amount of content from the copyrighted works was accessible to the public.17 This interpretation of the “how much was taken” factor creates an interesting balance between the copyright holder and the creator of a follow-on work. If the amount of text, quantity of images, or seconds of audio taken from the copyrighted work is brief, and the amount of transformative content created by the fan is significant, the balance will tilt in favor of the creative fan who has used the copyrighted work as inspiration.

As the Boldly order noted, a copyright owner’s “exclusive” right to create derivative works based on the work it owns is limited by “the critical introductory clause to Section 106(2),” which states that fair use “limits the ‘exclusive right[]’ to prepare derivative works.”18 In ComicMix, the Boldly team did not use any of Seuss’s words, characters, or universe. Accordingly, a work can be derivative and transformative—even if it is widely accessible in bookstores or online—and still be a fair use. If no transformative content is added by the fan, then the fair use examination tilts in favor of the copyright holder. However, if a fan creates a follow-on work that includes aspects of transformativeness, the follow-on work is more likely to make fair use of the copyrighted work.

The Business Balance

In fan-created follow-on works, the creative fan usually uses one, two, or even all three of the source work’s words, characters, and universe. The parameters of fair use give wide leeway for fans to create follow-on works, and share them widely online—but some fans still feel more comfortable sharing their fanworks with permission from or pursuant to a license from the copyright or trademark holder. Others create and share without a license, but get a cheer or a social media boost from the creators or the copyright holders, which are not always the same entity.

A few years ago, Amazon launched “Kindle Worlds” in an attempt to get fanfic writers to create and share stories on Amazon’s platform; the writers would earn revenue for their fanfic if they complied with the licensing guidelines set forth by the copyright owners.19 However, by 2018, Kindle Worlds was de facto defunct; as Georgetown professor Rebecca Tushnet wrote in 2014, fans were not interested in having their creativity constrained because when “penned in, [individual participants] can be counted, marked, moved around, and cut out of the herd (to be shorn, or even to be slaughtered if they’re more trouble than they’re worth).”20

In years past, the entities behind Star Wars, My Little Pony, Transformers, Star Trek, and Harry Potter have tried to harness the fanworks ecosystem with licensing modalities. Sometimes, fans do not understand that the licensing process was intended by the copyright holder to create a “safe harbor.” The “Fan Content Policy” created by Hasbro for its Wizards of the Coast brand tries to set forth guidelines,21 which are occasionally self-contradictory, and which do not include a commitment to not sue anyone who adheres to the stated guidelines. However, many fans see such a promise in the subtext.22 The guidelines also appear to create a license for Hasbro to use fan-created content: “By making Fan Content, you agreed to let everyone (including Wizards) share and use your stuff without asking your permission. This includes Wizards. We don’t want to get sued for spotlighting your awesome Fan Content on our media channels or making something that may resemble someone’s Fan Content.”23 Of course, there is no guarantee that a fan will have seen Hasbro’s policies, so it is questionable whether the terms are binding on the fans or on Hasbro itself, but it is an attempt to answer fans’ questions about what they can do with Wizards’ copyrighted content and trademarks. Draftsim.com is an example of a website that creates fan content in the form of a deck-building simulator that uses Patreon under the Wizards Fan Content Policy.

The policy created by Hasbro for Wizards of the Coast has been replicated by companies like Finnish gaming company Supercell.24 Such policies can affirmatively allow creative fans to monetize through ads or donations—or stay “noncommercial” if desired—when they create and share online guides and guide apps, fan meet-ups, fan pages, fanart, fan-created community hubs or servers, and gameplay videos. Policies by copyright and trademark owners can include disclaimers for fans to use and include parameters, such as whether creative fans can sell physical items like T-shirts.

Hasbro and Supercell, as well as other copyright holders, include language in their “permissions” policies that would enable them to use fan-created content without compensation. Supercell, for example, claims that it “may from time to time use, improve or modify your Fan Content without compensation in a manner we consider reasonable, for example by using it in our games, reposting it in our online channels or using it in our marketing activities.”25 Given recent case law addressing when terms of use are binding, it is doubtful that such language would be binding on all creators of follow-on works. Even if the copyright holder can prove that the fan has read the policy,26 it would be imprudent for a copyright holder to sell fan-created content offline, or use it in marketing materials, without the fan’s permission.

Other copyright holders have tried to use inappropriate or out-of-date terms of use policies when asking fans to submit fanworks to a website, for a contest, to share on social media, or in “extras” on DVDs or streaming networks. A few years ago, MTV tried to utilize its The Collective website to host Teen Wolf fanworks. The terms of use for the site provided fans with an express license to use character names, invented locations, and show concepts, but only pursuant to said terms of use. Included in MTV’s terms of use was a requirement that any user who used The Collective had to “respect [MTV’s] copyrights, trademarks, and other intellectual property rights.” What could that mean for fanworks? There was no way to know, because there was no definition of “respect,” which was a poorly chosen word on a site that hosted fiction about villains and monsters. With no definitions or explanations, fans were puzzled. Did they “have to respect” characters who were created to be monstrous? Was “respecting” intellectual property limited to not selling copies of episodes via eBay or sharing them on ad-sponsored YouTube channels? Did fans have to avoid criticizing a copyrightable character or a character whose name was the subject of an application filed at the U.S. Patent and Trademark Office, or which was followed by a superscript TM on every press release? Could a reasonable fan even know?

In the summer of 2016, while litigating against the fan film Axanar, Star Trek intellectual property holders CBS and Paramount released “guidelines” regarding use of their intellectual property, including their brands, by creative fans who wish to create “fan films”; no written policy is available on the StarTrek.com website to guide fans who wish to create any other form of fanworks. CBS and Paramount stated that they are “big believers in reasonable fan fiction and fan creativity, and, in particular, want amateur fan filmmakers to showcase their passion for Star Trek. Therefore, CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines.”27

Because of the mention of “fan fiction and fan creativity,” fans have opted to apply the CBS and Paramount guidelines to other follow-on works, even though the guidelines do not explicitly say so. However, fans are aware that the guidelines and parameters placed on fanworks by CBS and Paramount are more restrictive than what U.S. law actually allows. The Organization for Transformative Works pointed out vagaries in the CBS and Paramount guidelines, noting that “an objection is a very different thing from a valid legal claim.”28

The CBS and Paramount guidelines implicitly include implied licenses of trademarks, but the only explicit mention is in the disclaimer they ask fans to include on fan films:

Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use. No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.29

Some see very little downside in a copyright holder creating a page on its website that proclaims its perspective on fanworks, whether it calls it a “safe harbor,” a license agreement, rules, or guidelines. It might not be deemed binding by all courts, but fans might appreciate knowing which follow-on works, and related fan actions including distribution channels and funding modalities, would be unlikely to result in a lawsuit or which, unfortunately, would.

Without such a policy, copyright holders run the risk of infringing on fan-created follow-on works if they share them—and particularly if they replicate them—without getting prior permission from the creative fan(s). If a copyright holder has such a web page, its representatives can correspond with fans, including through social media platforms’ direct message features, or by commenting on a fanwork, and ask permission to share the fanwork or use it beyond the platform(s) where the fan posted it. Such a request is necessary because fans hold copyright in the elements of their follow-on works that are original to them. Where a follow-on work manifests “sufficient originality so as to amount to an ‘original work of authorship,’”30 the content that was independently created by the fan31 is copyrightable to that fan.

Terms of use policies for all of the high-profile social media and content-hosting sites in the United States allow anyone (or at least anyone not banned from or blocked by the site) to share content that other users have posted on that site. The ecosystems on Twitter, Tumblr, and Facebook, among others, include one- or two-click “retweets,” “reblogs,” and “shares,” respectively. Instagram enables shares by others’ feeds.32 Companies do not need a creative fan’s permission to share publicly distributed content on the site where it was posted, although it is perceived as polite to ask.

However, if a copyright holder wants to share that content on another site, or include it in a blog post or wrap-up of fan content, the copyright holder should ask the fan’s permission, and not share the content without it or risk engaging in copyright infringement of the fan’s work. Links and embedded content are seen as different from reposting content, both as a matter of terms of use agreements and common law. It is especially vital for companies to not take fans’ content for commercial purposes or put it in the hands of writers, producers, or cast without permission from the creative fan. When journalists, talk show hosts, or representatives of the copyright holder share fan content without permission, it violates custom, practice, and norms, and—if the sharing does not meet the parameters of fair use—it may infringe on the fan’s copyright.

If a company wants to share fan-created content beyond a retweet, reblog, or shared link, these are some ways to obtain the necessary permissions:

  • Have approved, standardized language that can be sent to fans via a direct message, e-mail, comment, or reply, such as: “I am writing on behalf of [copyright holder] and we love your [story/video/art/costume/photo/etc.] at [link] and would love to share it with other fans. Reply [here/to copyright holder] if you give us permission to do so. You can find more information here [link].”
  • Have a submission system through which fans can submit their own works for inclusion on a company website, or for you to share online or in a specific way. The page should include terms of use that require submitters to state that they created or cocreated the work that they are submitting, and include a grant of a license to share the work. If you ask for an assignment without granting back the right of the creative fans to share their work, they legally would have to take the work down from any sites they have already uploaded it to, and many fans do not like losing control of their work in that way.
  • Offer to purchase a license to (or an assignment of) the work, if you want to use it on marketing materials or merchandise. The BBC is just one copyright holder that has purchased art from talented fans that it has used on posters, mugs, and T-shirts. Kindle Worlds also had such a licensing process, albeit an unsuccessful one. Wattpad has had more success with its fanfic contests and transmogrifications of stories that started as fanworks and were published as books and turned into major motion pictures.

Conclusion

It is vital for any copyright holder to understand the disparate elements of fan communities that may develop around its intellectual property and manners in which they may do so. While some fans would be pleased to have their work showcased or shared by “the powers that be,” others want their work shared only within fan communities. Fans create their follow-on works for many reasons, but the most common are because of love for the story, characters, or underlying universe, or because they are frustrated by or concerned with one of those elements. They share their creativity to participate in communities, or sometimes just to get an idea out of their heads and into the world. As the Organization for Transformative Works often reminds its members, “Fair use laws favor uses that transform the meaning or purpose of an underlying work,”33 and that is what so many creative fans around the world try to do. 

Endnotes

1. See, e.g., Wattpad Response to Request for Comments on Department of Commerce Green Paper, Copyright Policy, Creativity, and Innovation in the Digital Economy, https://www.uspto.gov/sites/default/files/documents/Wattpad_Comments.pdf (last visited Aug. 8, 2019) (“Books, TV shows, music, movies, games, apps, YouTube celebrities, toys and even musicals all serve as the inspiration for the explosion of creative writing that is both entertaining and connecting fans from around the world.”).

2. This article uses the terms “follow-on works” and “content” as shorthand for stories, films, art, comics, cartoons, costumes, memes, gifs, reviews, commentary, meta, analysis, stagecraft, videos, songs, physical items, and parody accounts.

3. Dave Itzkoff, High School “Alien” Production Wins Internet Raves, N.Y. Times (Mar. 25, 2019), https://www.nytimes.com/2019/03/25/theater/high-school-alien-play.html (“Asked if the drama club had sought official permission to present the play, Mr. Cuervo said, ‘Our main goal was really just to put on a great play for the kids, just get them out, stage front.’ . . . ‘Alien: The Play’ has drawn widespread praise on social media; an official promotional Twitter account for the ‘Alien’ franchise said, ‘We are impressed! 40 years and still going strong . . .’ and ‘Bravo!’”).

4. Christiano Lima & Zack Stanton, Politico Westeros Playbook: Dany Mulls Adviser Shake-Up—Two (Dragon) Heads Are Better Than One?—All Eyes on Winterfell, Politico (Apr. 22, 2019), https://www.politico.com/story/2019/04/22/politico-westeros-playbook-game-of-thrones-season-8-episode-2-recap-1285679.

5. Id.

6. Lenz v. Universal Music Corp., 801 F.3d 1126, 1132 (9th Cir. 2015).

7. Janita Burgess, Fan Creation & Copyright Survey: Preliminary Results, Org. for Transformative Works (Feb. 24, 2017), http://www.transformativeworks.org/fan-creation-copyright-survey-preliminary-results/.

8. 17 U.S.C. § 107.

9. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

10. Elizabeth Minkel & Flourish Klink, Episode 86: The Money Question, Fansplaining (Oct. 31, 2018), https://www.fansplaining.com/episodes/86-the-money-question.

11. Authors Guild v. Google, Inc., 804 F.3d 202, 219 (2d Cir. 2015).

12. U.S. Const. art I, § 8, cl. 8.

13. Dr. Seuss Enters., L.P. v. ComicMix LLC, No. 16-CV-2779, slip op. at 15 (S.D. Cal. Mar. 12, 2019), ECF No. 149 (quoting Campbell, 510 U.S. at 577).

14. Id. at 30 n.8.

15. Id. at 17.

16. Id.

17. Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).

18. Dr. Seuss Enters., No. 16-CV-2779, slip op. at 18; see 17 U.S.C. § 107; H.R. Rep. No. 94-1476, at 61 (1976) (“[E]verything in section 106 is made ‘subject to sections 107 through 118,’ and must be read in conjunction with those provisions.”).

19. Victoria James, Amazon Goes Head to Head with Wattpad in Battle for Fanfic Writers, Guardian (Dec. 8, 2014), https://www.theguardian.com/books/booksblog/2014/dec/08/amazon-wattpad-fanfic-retail.

20. Rebecca Tushnet, All of This Has Happened Before and All of This Will Happen Again: Innovation in Copyright Licensing, 29 Berkeley Tech. L.J. 1447 (2015).

21. Wizards of the Coast’s Fan Content Policy, Wizards Coast, http://company.wizards.com/fancontentpolicy (last updated Nov. 15, 2017).

22. KariZev, Wizards Clarifies Intent behind Fanart Policy, Reddit (Feb. 21, 2018), https://www.reddit.com/r/magicTCG/comments/7zb7fm/wizards_clarifies_intent_behind.

23. Wizards of the Coast’s Fan Content Policy, supra note 21.

24. Fan Content Policy, Supercell, https://supercell.com/en/fan-content-policy/ (last updated Oct. 12, 2018) [hereinafter Supercell Fan Content Policy]; see also Fan Content Policy, Futureplay Games, http://www.futureplaygames.com/fancontentpolicy.html (last updated Feb. 14, 2019).

25. Supercell Fan Content Policy, supra note 24.

26. Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014) (“But where . . . there is no evidence that the user had actual knowledge of the agreement, the validity of the browsewrap agreement turns on whether the website puts a reasonably prudent user on inquiry notice of the terms of the contract.”).

27. Fan Films, Star Trek, https://www.startrek.com/fan-films (last visited Aug. 8, 2019).

28. OTW Legal on Paramount/CBS’s Fan Film “Guidelines, Org. for Transformative Works (July 2, 2016), https://www.transformativeworks.org/otw-legal-on-paramountcbs-fan-film-guidelines/.

29. Fan Films, supra note 27.

30. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 680 (2d Cir. 1998).

31. Ann K. McClellan, Sherlock’s World: Fan Fiction and the Reimagining of BBC’s Sherlock 31–32 (2018) (“[Fans] understand the unique situations within which fandom tropes, expectations and storylines are created and welcomed.”).

32. How Do I Share Someone’s Post from Feed to My Story?, Instagram Help Ctr., https://help.instagram.com/1013375002134043 (last visited Aug. 8, 2019).

33. Janita Burgess, Happy Fair Use/Fair Dealing Week!, Org. for Transformative Works (Mar. 1, 2019), https://www.transformativeworks.org/happy-fair-use-fair-dealing-week/.

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Heidi Howard Tandy is a partner in the dispute resolution department of the Miami office of Berger Singerman LLP and a board-certified intellectual property lawyer. She specializes in social media, privacy policies, and trademark law.