Into the Fandom-Verse: Fanworks and Fair Use

• Author: Heidi Howard Tandy
• Position: Heidi Howard Tandy is of counsel and head of the IP department at Price Benowitz in their Miami Beach office. She specializes in social media, privacy policies, and trademark law. She can be reached at heidi@pricebenowitz.com.
• Pages: 18-23

Published in Landslide® magazine, Volume 12, Number 1, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©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.

Into

Fanworks and Fair Use

By Heidi Howard Tandy

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 lm into a musical and

share it on YouTube; graphic designers or CGI artists create fan-

art 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 handi-

crafts such as quilting and knitting; videos like fanvids,

documentaries, and the BBC series Sherlock; audio works

from podcasts, audio plays, and lks to pop songs like songs

about Superman by the Spin Doctors, REM, Laurie Ander-

son, and Three Doors Down; printed zines, short stories,

Heidi Howard Tandy is of counsel and head of the IP department

at Price Benowitz in their Miami Beach ofce. She specializes in

social media, privacy policies, and trademark law. She can be reached

at heidi@pricebenowitz.com.

the

and novels; staged works like Wicked, Hamilton, 3C, and the

recent high school stage play production of Alien;3 and web-

sites 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 signicant by the

copyright holder and/or trademark owner. For instance, busi-

nesses 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 specically support the breadth of their claims.

This article will look at the concept of fair use as it inter-

sects 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 nal season of HBO’s Game of Thrones, the website

Politico engaged in a weekly write-up of the ctional politi-

cal 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 ction (fanc), written in Polit-

ico’s noted “Playbook” style, interspersing summary, analysis,

and prediction. Politico is a commercial website, but nonethe-

less the fanc it publishes falls under the denition of “fair use.”

Fandom-

Verse

Fandom-

Verse