The Legality of Fandom
Part I: Copyright
These writers, artists, and creators carve time out of their real lives to create free content on the web for us lowly and untalented individuals. But, a lot of the time you’ll see these same amazing people freaking or worrying about potentially copying the original content too closely. But what a lot of these artist and writers fear is getting in trouble by the creators of the content they are fans of.
My goal is to help put those worries to rest. Whether it be fanfiction or fanart or digital manipulations, there is always a chance a lawyer may knock on your door and hold the fanwork creators liable for copyright infringement. Can you imagine a big-shot Marvel lawyer knocking on your door because you wrote a headcanon that was a little too close to the original script? Awkward.
Now, my goal is to dispel some myths and misconceptions on how Copyright Law works and make it a little less scary for those getting started in fandom or already in it. Please note that this post is: a) Not intended as legal advice; b) Meant to inform fandom of how copyright currently works in the real world (spoiler alert: it's kind of a crap show); and c) Meant to hopefully dispel some misinformation about copyright and fandom.
The Copyright Act of 1976 (17 U.S.C. §106) governs current copyright law in the United States. And don’t worry: it has been amended several times since then. The point of copyright law is to give rights to original authors and creators in their work. Under the Copyright Act “original works of authorship are copyrightable,” (I know super helpful, right?) Also, the Digital Millennium Copyright Act is important too, but we’ll get to that later.
To break it down simply: if you created the work, you are the copyright owner. You can then assign your work to someone else. For example, a writer can give their work to a publisher. But if you merely contributed a very small portion to the work as a whole or were merely, for example, an actor in a video, you may not have a claim at all. If you’re a law nerd, check out the ruling in Garcia v. Google if you want the dirty details on the rights of an actor in a short film.
The point of Copyright Law is to protect the creators of original work and encourage creativity in society. We want people to make new and innovative things, so we should protect their work so they can profit. Make sense? If people are able to take credit for someone else’s work or make a profit by distributing it, this would kill innovation. Why should people make their livelihood creating things, like comics, if someone could just copy it and sell it without repercussions?
SO WHAT ARE THE RIGHTS OF A COPYRIGHT OWNER?
Copyright owners are given six exclusive rights under the Copyright Act:
- Right to reproduce (a.k.a., you have the right to make copies of your work)
- Right to reproduce similar copies of the copyrighted works (a.k.a., derivative works)
- Publicly distribute your work.
- Publicly display your work (think movies).
- Publicly perform your work (think musical theatre performances).
- Public performance for digital audio works.
So here is the part you should care about the most, fandom people. Let’s pretend that you are a copyright infringer — an infringer is someone who does something prohibited by one of the six exclusive rights. For example, let's say that you write Once Upon a Time fanfiction in your spare time. You have infringed on ABC’s copyright by reproducing similar copies of work (fanficition is considered derivative work, and unauthorized derivative works are illegal). And while I personally think it’s a weak case, courts can be petty and so can people.
Before I get ahead of myself, some people will argue that fanwork does not violate an original author’s copyright at all because it isn’t an actual copy of the original work. But some work gets REALLY close to the original work (*cough* Shadowhunters *cough*) so beware of that.
But before you start panicking and take down all of your fics on AO3, as a fanfiction/fanart/whatever creator, you have a lot more protection than you think. The good news? Thanks to three defenses, most original authors and companies won’t waste their time suing someone in fandom unless the fandom person is making a profit. (Remember the Shadowhunters mention earlier? Yup.)
THE THREE DEFENSES
- If you get permission of the copyright holder to distribute (though this is unlikely to happen in fandom):
- Unless you are a fanart person and you give someone the right to post your work. If someone posts your work without your permission, you have a technical case for copyright (and under the Digital Millennium Copyright Act there is an easy way to address this, but we will get in to this below).
- Fair Use (and this is the big one), which means that the court weighs four factors on a case-by-case basis. What are the four factors?
- 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.
- 4) The effect of the use upon the potential market for or value of the copyrighted work. (17 U.S.C. §107)
- First Sale Doctrine (a.k.a., once the owner has sold you a copy of their work, you can do whatever you want with it.)
- First sale on the Internet can be a little bit of a grey area though, and likely won’t come up too much in fandom-related issues.
In my opinion, it is the four-factor test that will continue to help fandom thrive.
I see this defense thrown around a lot in fandom, so this is where I am going to focus the rest of my time. Don’t worry fanart and fanvideo makes, I have not forgotten about you — you’re gonna want to read this AND the Digital Millennium Copyright Act to figure out if/why your work is getting taken down. I would also like to take this moment to give you a quick reminder: copyright law is a massive field that is always changing, especially in regards to the Internet, so be sharp.
Let's dive deeper into those four factors that I briefly mentioned above:
- Factor 1 — The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
(Note: Youtube and the music industry have their own set of issues here I could write a book on, but I am trying to keep it simple. You’re welcome.)
Secondly, transformative works — such as fanfiction — are less likely to be seen as infringing on the original owners work. In example, a The 100 coffee shop AU is VERY unlikely to infringe on The CW’s copyright of The 100, BUT if you write a dystopian novel and just change the names and sell it with the same plot/premise/characters as The 100, you are probably going to court.
Summary: 1) Fanwork should be transformative (that means DIFFERENT from the original work); 2) Don’t make a profit off of your work; and 3) Submit to good faith use. Plagiarism looks bad, people. Keep in mind that courts may take into account other factors for “purpose and character of the use” but I’m trying to keep this basic.
- Factor 2 — “The nature of the copyrighted work.”
- Factor 3 — “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
- The substantial similarity test. This measures the quantitative (actual) amount of work copies to support a legal conclusion of infringement.
- The ordinary observer test. Would an ordinary person think the two works are the same?
- The concept and feel test.
- The literal similarity test. How many direct quotes are taken from the work?
- Factor 4 — “The effect of the use upon the potential market for or value of the copyrighted work.”
FANFIC AUTHORS, YOU CAN STOP READING AFTER THIS BLURB IF YOU WANT
If you’re a fanfic author, you are unlikely to be prosecuted for your work. There are too many derivative works, you aren’t causing commercial harm, and you’re working within a grey area on the Internet that is still growing every day. The courts have common sense — they know you are all writing in a copyrighted grey area and they are probably too concerned with piracy and music streaming to give a second thought to this cult section of the Interwebz.
If you get flagged for your work, you can play on the safe side and take it down. But honestly, fanfic hasn’t gone to court yet and there is a reason for that — because sadly the real world has bigger issues.
DIGITAL MILLENNIUM COPYRIGHT ACT
Now, for those fanartist and fan-digital content creators, this Act applies to you. More specifically Section 512:
“The Digital Millennium Copyright Act (DMCA) allows Web sites to escape liability for infringing material if they abide by takedown notices sent by the copyright holders. See 17 U.S.C. § 512 (2000).”So if you ever wondered where your work went or why it got removed from a website, THIS IS WHY. Someone reported your work (normally multiple reporters) and the website (such as YouTube, for example) is required to take your work down so it doesn’t get sued. Section 512 gives service providers like YouTube or AO3 immunity from lawsuits if they meet certain threshold conditions set out in the DMCA — Section 512.
If you want to look up Section 512 for the specific requirements for each service provider, be my guest, but it’s long and very specific for each type of provider. In general, the threshould requirements revolve around a notice and takedown procedure that is outlined in Section 512. So if you see your work go missing, you can contest it, and the service provider is required to give you a) notice if your work goes down; b) allow you to respond to the takedown and then; c) you can commence the back-and-forth until either you or the person claiming infringement caves.
To my knowledge, if you want to fight back for your work to come back on the site, you can. It very rarely goes to court. So if you’re passionate about your work, go for it! You’ll probably win.
In regards to copyright, fandom, you have very little to worry about for now. But take note: this is not a comprehensive analysis on all copyright law. I would say this maybe covers 2% of it. Internet Law is new and evolving, but it is very unlikely the big guns — like Marvel, Sony, Fox, ABC, etc. — are going to come after you for fanwork.
If you are interested in reading some interesting cases/law on the matter that gets into WAY more detail than I have here, check out the following books/articles/blogs:
- Internet Law: Cases & Problems by James Grimmelmann
- Honor Among Thieves: Copyright Infringement in Internet Fandom
- The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright
- Everything I Need to Know I Learned from Fandom: How Existing Social Norms Can Help Shape the Next Generation of User-Generated Content
Stay tuned for the rest of Ilene's law series as she talks more about how law affects fandom!