Abstract
Fan fiction and fan art have generated a symphony of creation that has peaked as a boisterous revolt. They have advanced from the underground to the front, establishing a parallel narrative universe that dances on the verge of mainstream awareness and irreversibly alters how narratives are communicated. As a result of the fact that they are theoretically based upon original works of art, fan-art and fan fiction are officially considered to be examples of derivative works. What exactly is the source of the problem? A problem occurs whenever there is a danger to the original author’s right to maintain their exclusivity. In line with the law of intellectual property rights, every artist is given protection for their work. This is the reason why fan fictions provide a significant challenge to the copyright characteristics of the original artwork. Fan fictions are considered secondary art, and as such, they present a significant risk of copyright infringement.
Keywords: Copyright, IPR, Rights, Law, Ownership, Property Rights
Introduction
The renaissance of pop culture fandom traces its origins back to the year 1842, when the inaugural American prototype comic book, titled “The Adventures of Mr. Obadiah Oldbuck”, made its debut. Ever since this industry has undergone enormous growth, so has its fan base. In the present day, fans have consumed art in a way that there exists fan fiction based on Stan Lee’s Spiderman to Rowling’s wizarding world. Fan fiction and fan art have created a symphony of creativity that crescendo as a loud uprising, advancing from the subterranean to the foreground, creating a parallel narrative world that dances on the brink of mainstream acknowledgment and permanently changing the way stories are conveyed.
The general perception in the fan community is that the ownership rights of the original artists end with the original text, whereas what the fans create is owned by the community. This perspective has paved a foggy way wherein the notion of ownership is getting lost, and the same has been subjected to both appraisal and criticism from different artists worldwide. For example, the author of the famous Outlander Series, Diana Gabaldon has time and again reiterated that she is totally against the concept of fan art and fan fiction and she labels them as illegal and immoral. While the other narrative to this discourse is presented by JK Rowling, wherein she praises fanfictions by calling them as “flattering” and has also referenced them in her works. So, where does the issue arise? The issue arises when the exclusivity of the original author gets threatened. Every artist gets protection for their work under the Intellectual Property Rights jurisprudence and that is why fan fictions pose a serious issue on copyright aspects of the original art since these are secondary arts and hence pose a huge threat of copyright infringement.
Fan Fiction & Fan Art: An Insight Into the Fandom
When certain original work becomes an inspiration and enables the fans to take up characters from that work and create a fiction of their own is known as fan fiction. Similarly, fan-art connotes work that fans create based on some original work. The term ‘fanfiction’ traces its origin to the late 1800s, majorly popularized by the Star Trek Fandom, who had released a fan made magazine named Spockanalia, consisting of fan made content regarding Star Trek. However, the mainstream distribution of fan made art and fiction was triggered extensively by the advent of the internet. The internet acted as a catalyst and allowed the fandom to increase their reach in order to gain popularity. An example could be taken of a website which goes by the name of “Fanfiction.net”, wherein approximately 800 thousand fanfictions of Harry Potter, almost 50,000 of Star Wars and more than 120000 fan fictions of the TV series Supernatural exists. Similarly other websites like “Pixabay”, “Pinterest”, etc. which contain enormous amounts of fan arts. Thus, establishing the fact that the key moderator and distributor of the realm of fan art and fiction has been the internet.
The major issue of copyright surrounding this fandom is whether fan fiction comply with the basic copyright requirements, or do they themselves infringe copyright of the original creator?
The Fanfiction-Copyright Nexus: A Comparative Study of United States and Japan
Fan-Art and Fan-Fiction is technically falling under the category of derivative work, because they are technically based upon original work of art. In accordance with the provisions set forth in the US Copyright Act of 1976, the concept of derivative works is expounded upon, wherein it is delineated as a creative endeavor founded upon a preexisting work. An example of the same could be taken from the case of Anderson v Stallone. In this case Anderson was a screenwriter who post watching the Rocky Movie Series, prepared a script for the fourth part and submitted it to Stallone, the original creator. After the 4th part was released, it had elements of the script written by Anderson, however on approaching the Court he couldn’t succeed because the Court held that Anderson’s manuscript wasn’t protected under copyright, because it was a derivative work created without the authorization from Stallone.
A contrast of the US Copyright regime with regards to fan fiction with the Japanese perspective is relevant here because, despite the fact that Japan provides a very similar copyright to its citizens like the US, but unlike the United States, a plethora of Japanese authors and artists believe that creating fan work is actually good for the original work of the author. Japan has a very long-standing historical backdrop with respect to fan fiction, which is represented by the word Doujinshi because it is a country deeply submerged in the art forms known as anime and manga. Doujinshi typically are derivative works wherein fans pick up characters and story arcs from famous works and recreate them with different elements. Similar to how the US Copyright law safeguards the rights of copyright owners in relation to derivative works, the Japanese Copyright law offers protection to copyright holders in this regard, as stipulated by Articles 27 and 28 of said legislation. Nevertheless, the primary distinction between the two countries is that the United States is not particularly receptive to fan art, while Japan is the complete antithesis. Despite the fact that Japan has recently amended its copyright law in order to incorporate a broader use of copyrighted work, the country is still much less litigious when it comes to fan-creation, because of the fact that original artists in Japan consider doujinshi arts as tools to increase their own public image, popularity and finances.
The Fair Use Defense
The United States Position
Look into any crossover of IP laws with any other filed, with regards to copyright, the most famous defense taken is the defense of fair use. Fair Use refers to a doctrine that envisages the unauthorized and unlicensed use of copyrighted works in specific circumstances. The basic objective behind such a defense, specifically in the realm of fan fiction and fan art, is that it allows for a way to prevent the predicament posed by a rigid copyright law that stifles creativity and innovation. In the United States s. 107 of the US Copyright Act of 1976 entails in itself the framework to determine as to whether a situation satisfies being that of a fair use. The framework established in the United States delineates four key factors that ascertain the extent to which a given circumstance can be deemed to be a fair use. These variables encompass the objective of the usage, the intrinsic qualities of the copyrighted work, the extent to which a portion of it is utilised, and the financial ramifications that said usage may have on the copyrighted work.
One of the finest pivotal instances that scrutinizes the aforementioned components is the ruling of the US SC in the case of Campbell v Acuff-Rose. In this case, Acuff Rose maintained exclusive rights over the composition entitled “Oh, Pretty Woman”, which was subsequently violated by a musical ensemble known as 2 Live Crew through the creation of a satirical rendition thereof. The Court in this case analyzed the 4 variables of fair use. The Court began by holding that for the first factor, the parodic nature of the song is highly transformative, hence, it must be weighed alongside other factors as well. The Court then stated that it is difficult to establish fair use when the secondary work is copied from the original one by nature as well. The Court continued by stating that the music group had taken a comprehensive part of the copyrighted work, including some lines and music elements. The Court finally held that considering all other factors, another important thing to consider is the economic effect that the secondary work leaves on the copyrighted work, and that in the case at hand, Live Crew’s parody version would have a major negative impact on the potential market for the original work.
Another major case was the Warner Bros. Entertainment v RDR Books wherein Warner Bros., the renowned entertainment conglomerate, initiated legal proceedings against an ardent enthusiast with the objective of impeding the dissemination of his self-authored compendium, which delves into the intricacies of JK Rowling’s enchanting realm, without obtaining the requisite authorization. The Court in this case held that, since there wasn’t any explicit permission on one hand, and secondly the language used in the fan work was directly taken from the original work, therefore, it cannot assert fair use.
The Indian Position
In India, Section 52 of the Copyright Act 1957 delineates the statutory framework pertaining to the concept of fair dealing. The idea behind the law is that some works should not be considered copyright violations even though they typically would be. Similar aspects are also taken into consideration just like the ones in the US. The Delhi HC, in the case of The Chancellor Masters and Scholars of the University of Oxford v Narendra Publishing House and Ors., upheld the application of the four-factor assessment, as originally established in the United States. However, the Indian Courts have also laid down a test, known as the Lay Observer Test, and for the same the case of Raja Pocket Books v. Radha Pocket Books wherein the Court had held that copyright infringement had happened because despite there being minute differences in the two contended works, the secondary work still had similar characters, similar sounding names, and even a very lookalike character sketch of the characters. The Court was of the view that such kind of similarities would severely harm the original creator and hence the same cannot be said to be fair use.
Copyright to Fanfiction Authors?
The copyright conundrum as elaborated above provides a good understanding of how copyright of the original owners could be dealt with. However, the major question that arises is with regards to whether the fan fiction artists have any copyright protection or not. On the basis of the IP jurisprudence, it can be stated that authors of fan fiction work would themselves stand as copyright infringers. However, the infringement shall only relate to the characters which they have taken directly from someone’s original work, and not to their self-introduced characters. The issue as to how such copyright would be determined could be resolved through the “character delineation test” wherein the development and growth of the character so concerned shall be the decisive factor as to whether its copyrightable or not. This test was deliberated in the ruling of Nichols v Universal Pictures Group. The Court, in this case, rendered a decision affirming the necessity of conducting an examination to evaluate the characterization, cross-border recognition of characters, and the distinctive components of expression that are substantially known to the public. Nevertheless, the aforementioned examination encountered obstacles in the legal dispute of Burroughs v. Metro-Goldwyn Mayer, Inc. which revolved around the portrayal of the iconic character “Tarzan”. In this case, the Court established that the utilisation of the character delineation test would yield excessively subjective outcomes. This was primarily due to the inherent challenge of distinguishing between the character itself and the underlying idea, as copyright law stipulates that ideas are not subject to copyright protection.
Another instance which determined whether fan fiction authors could be provided copyright or not was the case of University City Studios v Kamar Industries, wherein the Court held that in situations where the name of the character in the original work becomes so inherently attached to the character in dispute that it’s very difficult to not think of the original character’s story when the character in dispute is mentioned, then copyright could not be given. Similarly, when the fan fiction possesses the power to take away monetary benefits of the original work, then in that scenario as well, the fan fiction cannot be provided with copyright.
Conclusion
The IP jurisprudence pertaining to fan art and fan fiction has been the subject of extensive debate. A significant discovery is that the authors of fan fiction appear to breach the copyright of the original authors on a prima facie basis. However, irrespective of the heat that this is generating, one thing still stands unclear which is the presence of one proper method of determination which could answer the question as to whether fan fiction infringes copyright or that it doesn’t and the same fan fiction needs copyright protection. The present-day legislations strictly establish that the consent of the original author is mandatorily required for any derivative work, and that ends there. The answer here definitely isn’t a change of law, rather a better judicial intervention in the matter. The judiciary can only interpret the pre-existing material and establish a better jurisprudence surrounding the fanfiction arena.
This article is a part of the DNLU-SLJ (Online) series, for submissions click here.
Student, National Law University Nagpur, Nagpur
