New Frontiers in Fan Fiction? Among the most common trends in modern entertainment are “fan art” and “fan fiction.” From movies like Star Wars, to book series like Harry Potter, to epic television shows like Game of Thrones, fans of pop-culture phenomena increasingly want to participate in their favorite fictional worlds by creating their own stories based on already-existing characters, settings, and plotlines. From art to short stories to novels to feature-length films, the Internet has spawned “fan-fic” communities for virtually every fictional book, movie, TV show, and video game of note.
As much fun as fan fiction can be for its creators and consumers, its authors may find themselves in a precarious legal position. After all, the entire fan fiction model is based on using others’ intellectual property (characters, locations, and events first imagined and described by someone else) to create, and sometimes profit from, one’s own derivative art or story. Works that criticize, analyze or parody the original work may qualify as lawful fair use, such as The Wind Done Gone, which used characters, plot, and major scenes from Gone With The Wind, but inverted its racial perspective to parody the original. Suntrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257 (11th Cir. 2001). But unlike The Wind Done Gone, most fan fiction does not seek to savage the original work, but to participate in the world—and world view—originally created by someone else.
One type of such fan art is somewhat “factual” in its approach, such as The Seinfeld Aptitude Test, a book offering a collection of trivia questions about the television show. Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (1998). The book included pictures of Seinfeld characters and questions about characters and events from 84 of the 86 episodes that had aired at the time of publishing. Id. at 135-36. The court reasoned that the plaintiff could effectively aggregate all episodes of Seinfeld as a single “work” for purposes of assessing similarity of expression, and held The SAT had substantially infringed Castle Rock’s copyrights in the Seinfeld universe. The court rejected the defendants’ fair use defense, noting that the statutory fair-use factors cut in favor of Castle Rock and that “free speech and public interest considerations [were] of little relevance in this case, which concern[ed] garden-variety infringement of creative fictional works.” Id. at 146.
Two decades after Castle Rock, the Southern District of New York again grappled with fair use in the fan “reference book” context, ultimately holding that publication of an avid fan’s Harry Potter Lexicon was not a fair use and enjoining its further sale. Warner Brothers., Inc. v. RDR Books, 575 F. Supp. 513 (S.D. N.Y. 2008). The decision recognized the mostly transformative purpose of the reference guide, but placed great weight on the extensive, unattributed quotations of the original author’s work—all seven of J.K. Rowling’s Harry Potter books, Fantastic Beasts & Where to Find Them, and Quidditch Through the Ages—and on Ms. Rowling’s testimony that the defendant had “plunder[ed] all of the ‘plums in [her] cake.’” Id. at 562.
But Warner Brothers’ victory did not end the fan’s devotion—or the fan reference genre. Following the decision, the fan published a new version of the book, acknowledging the lawsuit and expressing his intent to “create a new, different book with a new focus and purpose, mindful of the guidelines of the court,” and explaining that “[o]ne of the most important goals of this new book is to avoid giving away too much or using J.K. Rowling’s own unique expressions.” Steve Vander Ark, The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials (2009). Apparently, he succeeded. That book—along with many other “unofficial” Harry Potter guides—remains on sale today.
More classic “fan fiction” uses characters, settings, and other elements from the original work to tell a story that is the extension of that world, such as the novel 60 Years Later, set 60 years after publication of J.D. Salinger’s Catcher In The Rye, to “tell the story of a 76-year-old Holden Caulfield, referred to as ‘Mr. C,’ in a world that includes Mr. C’s 90-year-old author, a ‘fictionalized Salinger,’” who “has been haunted by his creation and now wishes to bring him back to life in order to kill him.” Salinger v. Colting, 607 F. 3d 68 (2d Cir. 2010). The Second Circuit concluded that the trial court did not commit clear error in holding that the plaintiff was likely to succeed on the merits and finding that “[i]t is simply not credible for Defendant Colting to assert now that his primary purpose was to critique Salinger and his persona, while he and his agents’ previous statements regarding the book discuss no such critique, and in fact reference various other purposes behind the book.” 607 F. 3d at 83. Nonetheless, it vacated the preliminary injunction because the lower court erroneously held that irreparable harm could be presumed. Following the remand, the matter resolved, and an electronic version of the book is currently available on Amazon.
The latest prominent dispute in the fan fiction universe, Paramount Pictures Corp. & Columbia Broadcasting Station v. Axanar Productions, Inc. (C.D. Cal. 2017), dealt with an unauthorized Star Trek prequel and perhaps marks the boldest course yet for copyright owners ultimately embracing fan fiction. The plaintiffs originally followed the well-trod path of suing the defendants for copyright infringement after it raised over a million dollars via crowdsourcing to fund a professional-quality fan fiction piece about the exploits of Garth of Izar (Captain Kirk’s idol) years before the events of the first Star Trek television series—even though countless Star Trek fan fiction spinoffs had been made previously without raising the ire of Paramount or CBS (owners of the Star Trek franchise’s copyrights). Their principal complaint seemed to be not just that “by Defendants’ own admission, [they] unabashedly take Paramount’s and CBS’s intellectual property, but that “the Axanar Works are intended to be professional quality productions that … aim to “look and feel like a true Star Trek movie.” After the trial court denied summary judgment motions, 2017 WL 83506, 121 U.S.P.Q.2d 1699 (Jan. 3, 2017), the case settled, and Axanar Productions will proceed with filming after reducing the length of the film and making other substantive changes. But the plaintiffs have made their own remarkable accommodation as well. CBS and Paramount issued a set of ten guidelines for fan-fiction creators regulating the length (no more than two episodes of no more than 15 minutes each), content (no drugs, alcohol, or nudity), and other aspects of Star Trek fan fiction in exchange for the tacit promise not to sue or otherwise interfere with those creators who follow the guidelines. Moreover, CBS established a “Star Trek Film Academy” designed to train aspiring Trekkie fan-filmmakers.
As fan fiction continues to grow and expand in popularity, just as interesting as how courts handle the inevitable substantial similarity and fair use questions will be whether other media companies choose to offer fan-fiction creators professional artistic development opportunities and clear guidelines—while also extending the reach of the copyright holder’s imaginative works. The legacy of the Axanar litigation may prove to be not its legal principles, but to provoke the question sooner of how best to win with the fans that make their work valuable.