Is there a place for us? Protecting fan fiction in the United States and Japan.

• Author: Peaslee, Samantha S.

1. INTRODUCTION

   Susan sits down at her computer, a stack of her favorite books next to her, and begins to write. Dumbledore (1) and Gandalf (2) are sitting calmly in the Leaky Cauldron, (3) wondering about the mysterious stranger that called them there. As they wait, Captain Kirk,4 Professor X, (5) and George Clooney (6) join them at the table, all with the same mysterious note, calling them together to ask them for help. Suddenly, a tall, beautiful woman walks into the Leaky Cauldron with a more normal-looking girl next to her, looking distraught. The beautiful woman introduces herself as Mary Sue, and then announces dramatically that she and her friend need the help of these men to save the world.

   Hypothetical Susan is one of thousands of fans who write fan fiction. Although fan fiction is not a new phenomenon, (7) the Internet has made writing and reading fan fiction more accessible and popular. (8) Now, certain databases are devoted exclusively to fan-written works that reimagine books, movies, television shows, comics, and even real people. (9)

   With the overwhelming number of fan fiction written and posted on the Internet, the owners of the original works cannot help but take notice. With the rise of Internet fan fiction came the simultaneous rise of cease and desist letters to fans and website operators. (10) A small minority of owners, such as Anne Rice, expressly forbids fiction based on their works, going to the extent of sending regular cease-and-desist letters to the managers of fan fiction databases as well as authors. (11) Overall, these cease and desist letters do not seem to curb the increased popularity of fan fiction, nor have they led to any court cases. (12) Some owners choose to forbid only select fan fiction, such as homosexual depictions of heterosexual characters, commercial fan fiction, or fan fiction that strictly copies large portions of works. (13) Other owners of original works have either explicitly or implicitly approved fan fiction. (14) J.K. Rowling, for example, has generally tolerated non-commercial and web-based fan fiction based on her characters. (15) Paramount, which owns the Star Trek franchise, ultimately decided not to pursue legal action against fan-writers, even when it does not approve of the fan fiction. (16)

   Owners of original novels, television stories, or movies ("rights owners" or "owners") are adamant against fan fiction because it is almost certainly a violation of an owner's intellectual property rights. However, Internet fan fiction raises unique issues for these owners. Despite most intellectual property rights being territorially bound, activities on the Internet generally are not. When the original work is from one country, the fan-writer in another, and the fan fiction is on the Internet, it creates a unique conundrum for both the rights owners and the fan-writers in attempting to determine the legality of the fan-writers' actions and each party's respective rights. This difference is made especially poignant when the countries involved are civil and common law nations. (17)

   This paper will take the hypothetical case from the first paragraph of this paper and attempt to determine what would happen if any of the rights owners sued Susan under either U.S. or Japanese intellectual property law. As the two countries that are arguably the largest producers of fan fiction, (18) as well as two examples of different cultural and legal mentalities in regards to intellectual property, examining the reactions of these two states may have very real impacts on fans and rights owners in the future.

   Part II will define types of fan fiction before Part III discusses the choice of law analysis in which rights owners must engage before determining whether to apply U.S. or Japanese intellectual property law. The next three sections will go through the intellectual property laws in both the United States and Japan as they apply to potential issues raised by fan fiction: Part IV will discuss copyright law, Part V will discuss trademark law, and Part VI will discuss moral rights. The conclusion will suggest the best ways for each country to legally address fan fiction.

2. WHAT IS FAN FICTION?

   Fan fiction cannot be considered one cohesive category. Meredith McCardlc points out that "the various forms fan fiction can take are wildly different and do not lend themselves to orderly classification." (19) Even within sub-classifications of fan fiction, individual characteristics may distinguish one particular story from another, making it more or less infringing. This section will outline the basics of fan fiction that are necessary to understand the legal distinctions throughout this paper.

   1. Basic Fan Fiction

      Fan works are a general category that includes any creation of a fan based upon an identifiable segment of popular culture. (20) These include fan art (fan depictions of original characters or settings,21) fan videos (as simple as music video montages or as complicated as full reenactments of popular movies or stories), (22) and fan subs (fan-translated videos that were originally in a language different from that of the target fan audience). (23)

      Professor Rebecca Tushnet has defined fan fiction as "any kind of written creativity that is based on an identifiable segment of popular culture, such as a television show, and not produced as 'professional' writing." (24) Others have defined fan fiction as "fiction written by a fan for the Internet about a person, fictional character, or universe of which the person is a fan." (25) The Oxford English Dictionary ("OED") defines it as "fiction written by a fan of, and featuring characters from, a particular TV series, movie, etc." (26) This paper will use the OED definition, as it includes both commercial and non-commercial aspects, while Professor Tushnet's definition limits fan fiction to those works written only for non-commercial reasons.

      All fan fiction builds some sort of new story from the original. (27) Some of the simplest fan fiction fills in narrative gaps in the source material or conveys the source material from the viewpoint of a different character. (28) A Harry Potter novel told from Hermione's perspective would fit into this category. Other times, the fan fiction will act as a prequel or sequel. (29) Fan fiction about James Potter (Harry's father) or Harry's children would fall into this category. Alternate universe fan fiction is another popular category. In alternate universe fan fiction, the characters from canon are presented in an environment very different to the original, such as moving Harry Potter to the United States or India. (30) Crossover fan fiction is also very popular; Susan's story in the introduction is an example of crossover fiction. Crossover fiction is when the characters, storylines, or settings from multiple canons are combined in a single fan work. (31)

      One popular reason for creating fan fiction is to create relationships (called "shipping") between characters. When the fan work involves a heterosexual relationship between two characters that may or may not be romantically linked in the original, the work is called gen/het (general/heterosexual) fan fiction. (32) If Harry and Hermione fall in love in a fan fiction story, that is gen/het fiction. All of these genres of fan fiction are generally inoffensive to owners (as long as the works are not for profit).

   2. Slash Fiction

      The other type of relationship-based fan fiction is "slash" fiction. Slash fiction features two characters that are usually heterosexual in canon engaged in a homosexual relationship." This type of fan fiction is responsible for most of the ire from otherwise tolerant intellectual property owners. Part of this is because slash fiction carries with it "a slough of misconceptions." (34) The key misconception is that slash fiction is pornography under another name. (35) Most slash fiction, however, centers on the relationship itself, not the sexual relationship between the two characters. (36) One example of slash fiction would be if, in Susan's story, Gandalf and Dumbledore fell in love and got married. While many rights owners do not perceive slash as harmful, some consider this a perversion of their original characters. (37)

   3. Mary Sue

      Original character fan fiction is common as well. Original character fan fiction involves inserting a new, fan-invented character into the owner's plot. Susan's fan fiction has two original characters: Mary Sue and her friend. But while the friend is a generic original character, generally considered harmless and occasionally necessary to the plot, Mary Sue is "the much loathed and widely ridiculed 'Mary Sue.'" (38)

      Mary Sue originally referred to a character created by Trekkie Paula Smith in her fan fiction--the first woman to control a Star Trek spaceship. (39) While some scholars view Mary Sue as a social commentary character, fans often view her with more scorn. (40) Mary Sue has come to stand for an author inserting oneself into a story, but as a character who is "typically perfect in nearly every way imaginable. Beautiful, intelligent, and quick-witted, these characters usually come equipped with a certain disregard for rules and normally wind up stealing the heart of a main canon character." (41) In Susan's fan fiction, "Mary Sue" likely represents Susan's perception of what she would like to be, while the friend may be a more realistic version of Susan herself or just a necessary extra. Most of fandom is scornful of the Mary Sue, yet she is still the most easily identifiable character in fan fiction. (42)

   4. Doujinshi

      While some might believe that doujinshi (sometimes transliterated as dojinshi) is merely the Japanese word for fan fiction, it has developed into its own category. Doujinshi "traditionally refers to works such as poetry or short stories for distribution within a specific association or society," (43) but currently is understood to mean "manga or anime...