Complimentary creation: protecting fan fiction as fair use.

• Author: Stroude, Rachel L.
• Position: Interview

Introduction I. Fan Fiction A. What Is Fan Fiction? 1. Fan Fiction Type 1: Referential Works 2. Fan Fiction Type 2: Participatory Works B. Fan Fiction: Commercial or Non-commercial? II. Courts' Treatment of Fan Fiction: Application of Fair Use A. Courts' Treatment of Referential Works: A Trend 1. The Court's Discussion of Twin Peaks Productions, Inc. v. Publications International Ltd. 2. The Court's Discussion of Paramount Pictures Corp. v. Carol Publishing Group 3. The Court's Discussion of Warner Bros. Entertainment, Inc. v. RDR Books 4. Trend Established by These Fan Fiction Cases B. Courts' Treatment of Participatory Works: Stay Tuned III. Proposed Model: a Parody-Like Treatment of Participatory Works A. Why Fan Fiction Deserves Protection 1. Referential Works as Commentary 2. Participatory Works as Archontic Conclusion INTRODUCTION

Ever heard that a picture is worth a thousand words? Most likely you have. However, does anyone follow up with the question of whose one thousand words is it worth? Is it worth a thousand words to only its artist? How about the viewers? Do they each get a thousand words, too? Any person willing to offer a thousand words for that picture will have a different thousand words than the next person and the next person and so on because of the varying interpretations of the picture.

Literary works, in many respects, are like an artist's picture, as the very words of a novel may create images in the reader's mind. Each reader may invest new meaning in the work conjured up by the author. The author invites the reader into the world she creates, but the author cannot limit where her world takes the reader. A reader may write a different ending to the original work, or a reader may collect all the information and arrange it in a new reference source. The reader's new works create the genre of fan fiction. This is wonderful, right? Now we have an author inspiring her readers to become authors themselves! But wait, the original author wanted readers to enter her world, not readers inviting her into their worlds spurred from her world. To end the existence of the reader's world, and thus fan fiction, the author needs only to speak two magic words: copyright infringement.

A fan fiction author facing a copyright infringement claim will most likely seek refuge in the fair use doctrine. The fair use doctrine, a complete defense to an allegation of copyright infringement, (1) is at the heart of the tension between private rights and public use, both interests that benefit the public. (2) Scholars and litigants are continuously challenging courts to analyze the purpose and function of the fair use doctrine because of this tension. The District Court for the Southern District of New York acknowledged that the fair use doctrine "mediates" between the competing interests of protecting copyrighted material and secondary works by determining the extent of each protection. (3) However, while a court may have the four factors of the fair use doctrine to assist in its decision as to which way to strike the balance, there is no bright-line rule; instead, the doctrine imposes a case-by-case analysis. (4)

This Comment discusses the tension a court faces each time it encounters a fair use doctrine analysis by focusing on the treatment of fan fiction. Although very few fan fiction works have risen to the litigation level, the authors of those fan fiction works that have reached litigation have asserted fair use, and it is likely that fan fiction authors will continue to do so. (5) First, this Comment describes the nature of fan fiction, the two types of fan fiction, and the potential commerciality of fan fiction. Second, this Comment analyzes courts' treatment of referential works and explains why courts have not encountered participatory works. Next, this Comment discusses that while courts have guided authors of referential works regarding how to create a noninfringing work, courts have yet to consider how to protect participatory works. Accordingly, this Comment proposes that courts treat participatory works similarly to how they treat parodies under the fair use doctrine because both types of works must borrow from the respective original works to fulfill their respective purposes.

1. FAN FICTION

   This Section will first define fan fiction according to case law and scholars. In doing so, this Section will describe the reasons why fan fiction evolved and why it continues to exist. Finally, this Section will discuss the commercial nature of fan fiction.

   1. What Is Fan Fiction?

      Creating fan fiction has become increasingly popular ever since organized media fandom first appeared as Star Trek returned for its second season in 1967. (6) An instant love of the show inspired some viewers to create alternative story lines for a few of their favorite Star Trek characters. (7) This passion for the original work and its characters, plot, and themes continues to drive fans to create their own works based on the original works. Thus, fan fiction "includes all derivative fiction and related works created by fans, whether authorized or unauthorized by the author of or current right-holder in the original work." (8) While many scholars have offered definitions of fan fiction, (9) this definition most appropriately outlines the nature of fan fiction and its impact on original works. The first part of this definition emphasizes the expansive nature of fan fiction. Fan fiction authors explore several genres including fantasy, comedy, drama, adventure, and mystery. (10) The latter part of this definition alludes to the copyright issues that arise from the existence of fan fiction. Both parts of this definition will be discussed in the pages that follow. For exemplary purposes, I categorize fan fiction into two types: referential works and participatory works.

      1. Fan Fiction Type 1: Referential Works

         Frank Pasquale has coined the term 'Information overload" (11) to explain the emergence of referential works that exist to help consumers navigate their way through the mass of material available in today's market. When a television series or a novel series becomes a favorite among viewers or readers, authors are motivated to continue satisfying their audience's hunger with more of its favorite characters. As the plot thickens, more characters appear, and themes develop, the amount of information presented to audiences grows. To fulfill their own creative impulses and to aid fellow fans, some fans will compile this information into a more accessible format. Thus, a referential work to the original work is created. (12)

         Courts have only addressed this first type of fan fiction, (13) which was discussed most recently in Warner Bros. Entertainment, Inc. v. RDR Books. The Southern District Court of New York in Warner Bros. defined referential works as a "narrow genre of non-fiction reference guides to fiction works.... because they reveal an elaborate imaginary world over thousands of pages, involving many characters, creatures, and magical objects that appear and reappear across thousands of pages." (14) Addressing the purpose and format of the Lexicon, the referential work at issue in the case, the Warner Bros, court states that:

         [t]he Lexicon makes the elaborate imaginary world of Harry Potter searchable, item by item, and gives readers a complete picture of each item that cannot be gleaned by reading the voluminous series, since the material related to each item is scattered over thousands of pages of complex narrative and plot. The demand for and usefulness of this type of reference guide is evidenced by the publication of similar works such as Paul F. Ford's Companion to Narnia: A Complete Guide to the Magical World of C.S. Lewis's The Chronicles of Narnia. (15) With its description of the Lexicon and its reference to the Narnia guide, the court acknowledges the existence of information overload and recognizes how referential works seek to make information overload more manageable.

      2. Fan Fiction Type 2: Participatory Works

         Scholarly analysis proves useful because no court has had the opportunity to define participatory works, the second type of fan fiction. Participatory works differ from referential works in two key respects. First, as Rebecca Tushnet concludes, authors of participatory works borrow the characters and settings of the original work and use them in their own creations. (16) The fan fiction authors "tak[e] familiar characters [from the original work] into new and often startling situations." (17) Thus, the new work reflects the fan fiction author's own identity and insights. (18) Inspired by their differing interpretations, readers transform a character or pursue an alternative course of events in their participatory works. A reader's interpretation of a work may not be what the author intended; it may not even have crossed the author's mind that such an interpretation would result. Jacqueline Lai Chung has argued that "a character may represent one person to one reader and another person to another reader. Therefore, although the author has in a sense given birth to her own character, she alone will not be able to capture the entire significance of that which she has created." (19) Consequently, participatory works will inevitably emerge because "[o]nce a text reaches readers, the copyright owner loses control over its interpretation." (20) The second type of fan fiction will continue to exist as long as there are readers willing to write their own interpretations of original works. (21)

         Second, while both types of fan fiction operate within the fan fiction community, referential works are created for the community and participatory works are created with the community. The fan fiction community developed because "[f]ans refuse to be passive consumers of the cultural productions that have deeply affected them." (22) Fans actively engage in the cultural productions by creating their own fan fiction...