Legality of Fan Fictions – Intellectual Property


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Fan Fictions are stories created by amateur creators from the work of others. These are stories or works created by fans of existing famous characters from movies, TV shows and popular culture in a whole new series of events.

With the advancement of technology and the popularity of the Internet, hobbyist creators have found their way. It has now become very easy for them to explore, create and publish. Without their name, fan fiction isn’t necessarily fan-made. Often people create fan fiction to criticize a character according to their own perception.

Usually these fan fictions are published and shared online. The quantity and popularity of such fan fiction has increased in recent times with the popularity of the Internet. The popularity did not attract readers but also legal consequences. Liabilities under copyright law and trademark law can be invoked against fan fiction if infringement is proven.

Fan Fictions and Copyright

A copyright owner has the right to prohibit anyone from copying, distributing, performing, modifying or displaying the work or characters in the copyrighted work without their permission, or from creating “Derivative works” of the copyrighted work.1

Any new work based on someone else’s copyrighted work is called a derivative work. Fanfiction can be classified as derivative works because it uses the copyrighted characters of someone else’s creation. Fan fiction writers create and make their work available by posting it online. Copyright owners are often offended by such works.

The moral rights of an author allow him to take action against any mutilation, distortion, etc. of his copyrighted work, even after the expiration of the copyright in the work. Fan fiction can affect an author’s moral rights if the work thus created mutilates or distorts the original work or the author’s reputation.

Fan Fictions and registered trademark

A trademark is a word, name, symbol or device that is used by a person (or intended to be used), to identify his products and to distinguish his products from those sold by others and which indicates the source of the products. The trend started when the authors of various books, novels, and films started registering their characters as trademarks.

A trademark owner has the exclusive right to use or license the trademark in order to avoid confusion for his client and to prevent others from profiting from the owner’s intellectual property. The main question in an alleged trademark infringement case is whether there is a likelihood of confusion for customers.

Fan fiction is usually created using famous characters from movies, books, novels, etc. This can lead to liability in the event of dilution of the mark. Dilution makes the use of a famous mark irrelevant whether confusion is expected or not, illegal. There is no risk of confusion when fan fiction is created, but it can nonetheless be held responsible for brand dilution. Walt Disney used this concept to prevent pornographers from using Snow White or Sleeping Beauty in their movies. Fan fiction writers who make their work available to the world for certain business benefits can be charged with brand dilution in addition to other intellectual property violations.

DEFEND FAN FICTIONS:

  • The non-competing nature of copyright serves as a defense. The importance of the original work is not lost because of the copied version.
  • Usually, these fan fictions promote original works. They also create awareness of the original.
  • Fan Fictions generally work for nonprofit organizations. They don’t intend to have a commercial advantage.
  • Fan Fictions does not try to compete with the original work market. There is no intention to substitute the original work.
  • Fan Fictions and Fair Use:

Fan fiction may be exempt from copyright infringement provided it is found to be fair use under copyright law. Analysis of the four-factor test indicates:

  • Purpose of the artwork: They are usually created by fans to experience their favorite characters in their imaginations.
  • Nature of the Work: Fan fiction is generally not for profit.
  • Amount of Work Copied: Famous characters from books, novels and movies are used in fan fiction in a whole new horizon of adventure.
  • Effect on the original work: Fan fiction does not attempt to compete with the original work, leaving no negative effect on the original work.

It is clear from the above analysis that fan fiction can be considered fair use under copyright law.

Fan fiction is healthy because it gives the opportunity to amateur creators to create the world of their imagination. Although many writers have endorsed Fan Fiction, many see it as a lame practice. Celebrity author JK Rowling said, “I find it very flattering that people love the characters so much.” She has taken a positive stance on fan fiction, unlike authors like Anne McCaffrey or Anne Rice who discourage fans from writing about their books and poll sites like FanFiction.Net2 to remove all stories from their works.

However, the biggest concern of writers who endorse even fan fiction is ensuring that fan fiction remains a non-commercial activity.

In the case of Warner Bros. Entertainment, Inc. and JK Rowling v. RDR Books3, the defendant was sued for copyright infringement for attempting to publish the print version of his online lexicon on JK Rowling’s hit Harry Potter series. The plaintiffs argued that the defendant’s attempt to publish for profit a printed facsimile of the Harry Potter Lexicon, a free online guide to the fictional Harry Potter universe, violated their copyright and n was not protected by the affirmative fair use defense.

The complainant claimed that she herself was considering writing a Harry Potter encyclopedia and that publishing a similar book before her own would harm the proceeds of the official encyclopedia, which she plans to donate to charity.

The Court held that “the plaintiffs have shown that the lexicon copies a sufficient quantity of the Harry Potter series to support a finding of substantial similarity between the lexicon and Rowling’s novels”.

This case clearly shows that fan fiction can only be tolerated if it does not function for commercial purposes. Fan fiction writers might face implications if they publish their work for commercial purposes.

Intellectual property rights are granted with the aim of promoting innovation and encouraging creators to create more. They act as an incentive to create the work. They should never be used to hinder innovation. Fan Fictions are creations of amateur creators who, if given the opportunity, could create something great in the future; therefore, a lenient and balanced approach must be adopted towards them.

Footnotes

1 Section 14 of the Copyright Act, 1957

2 FanFiction.Net is an online fan fiction archive. Writers are allowed to upload stories based on popular books, TV series, movies, etc. However, since the inception of the site, several professional authors including Anne Rice, Dennis L. McKierman, Irene Radford, JR Ward and others have requested these stories based on their copyright. and branding work to be removed from the site.

3 575 F. Supp.2d 513 (SDNY 2008)

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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