JOUR 625 Lecture Notes - Lecture 35: Fan Fiction
11 Jun 2020
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What about Fair Use
The fair use doctrine is a defense to copyright infringement that doesn’t clearly protect fan
fiction authors.
This defense is a very complex statutory defense that is comprised of a four factor balancing
test that can impact what pieces of fan fiction are protected from copyright infringement
liability.
If you want to write an authorized episode of a show on your website and use a show that is
well-known for supporting and allowing fan fiction there’s a lot you could do.
But if the author of the show isn’t known for supporting or allowing fan fiction, the fair use
analysis would go like this:
1. The purpose and character of use
This is the first factor dealing with a long list of the purposes of fair use written in the Copyright
Act that includes:
- Criticism
- Commentary
- News reporting
- Teaching
- Scholarship
- Research
This asks you why you wrote your fan fiction. If your purpose was to do a parody or critique the
original episode, you probably have fair use.
However, if you wrote it because you wanted to be the author or wanted to create more of the
episode for your own and other people’s enjoyment, then you might not have fair use.
The purpose of character is something that is determined based on how transformative the
work is.
This means that it has added a new or different thing to the original work or substitutes the
original.
This creates a lot of ambiguity and controversy in fan fiction.
Fan fiction normally adds something, but deciding whether it’s different or just something
continuing the original plot is hard in some circumstances.
Document Summary
The fair use doctrine is a defense to copyright infringement that doesn"t clearly protect fan fiction authors. This defense is a very complex statutory defense that is comprised of a four factor balancing test that can impact what pieces of fan fiction are protected from copyright infringement liability. If you want to write an authorized episode of a show on your website and use a show that is well-known for supporting and allowing fan fiction there"s a lot you could do. But if the author of the show isn"t known for supporting or allowing fan fiction, the fair use analysis would go like this: the purpose and character of use. This is the first factor dealing with a long list of the purposes of fair use written in the copyright. This asks you why you wrote your fan fiction. If your purpose was to do a parody or critique the original episode, you probably have fair use.
