Fan Fictions are stories created by amateur creators based on 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 totally new series of events.
With the advancement of technology and popularity of internet, amateur creators have found their way out. It has now become really easy for them to explore, create and publish. Not going by the name, fan fictions are not necessarily created by fans. Often people create fan fiction to criticise a character in their own perception.
Generally these fan fictions are published and shared online. The quantity and popularity of these fan fictions has increased in the recent past with the popularity of internet. The popularity has not attracted the readers but also legal consequences. Liabilities under the Copyright law and Trademark law can be invoked against fan fictions if proved infringing.
Fan Fictions And Copyright
A copyright owner has a right to prohibit anyone from copying, distributing, performing, modifying, or displaying the work or characters in the copyrighted work without his/her permission, or creating "derivative works "of the copyrighted work.1
Any new work which is based on someone else's copyrighted work is known as derivative work. Fan fiction may be classified as derivative works because they use the copyright protected characters from someone else's creation. Fan fiction authors create and make available their work by posting them online. Copyright owners often get offended by such work.
Moral rights of an author empowers him to take action against any mutilation, distortion etc. of his copyrighted work even after the copyright in the work has expired. Fan fictions can affect moral rights of an author if the work so created mutilates or distorts the original work or the reputation of the author.
Fan Fictions And Trademark
Trademark is any word, name, symbol or device which is used by a person (or intended to be used), to identify his goods and to distinguish his goods from those sold by others and which indicates the source of the goods. The trend has started where authors of various books, novels and movies have started registering their characters as trademarks.
A trademark owner has the exclusive right to use, or to license the mark so as to avoid any confusion to its customer and to prevent others from profiting off of the owner's intellectual property. The primary question in a case of alleged trademark infringement is whether there is a likelihood of confusion for customers.
Fan fictions are generally created using famous characters from movies, books, novels etc. This can attract liability under Trademark dilution. Dilution makes a use of a famous mark immaterial of the fact whether any confusion is expected or not, illegal. There is no scope of confusion when fan fictions are created but still they can be liable under trademark dilution. Walt Disney used this concept to stop pornographers from using Snow White or Sleeping Beauty in their films. Fan fiction authors who make available their work to the world for some commercial benefits may be accused of trademark dilution in addition to other intellectual property violations.
DEFENDING FAN FICTIONS:
- The non rivalrous nature of copyright law acts as a defence. The importance of the original work is not lost because of the copied version.
- Generally, these fan fictions promote the original works. They also create awareness of the original one.
- Fan Fictions usually work for non-profit. They do not intend to have any commercial benefit.
- Fan Fictions do not attempt to compete with the market of the original work. There is no intention of substituting the original work.
- Fan Fictions and fair use:
- Purpose of the work: They are generally created by fans to experiment their favourite characters in their imagination.
- Nature of the work: Fan fictions usually do not work for profit.
- Amount of the work copied: Famous characters from books, novels and movies are used in fan fictions in a totally new horizon of adventure.
- Effect on the original work: Fan fictions do not attempt to compete with the original work leaving no adverse effect on the original work.
It is clearly evident from the above analysis that fan fictions can be treated as fair use under the copyright law.
Fan fictions are healthy as they give opportunity to amateur creators to create the world of their imagination. Though lot of authors have approved Fan Fictions, lot many take it as a lame practice. Famous author J.K Rowling has said, "I find it very flattering that people love the characters that much." She has adopted a positive position on fan fiction, unlike authors such as Anne McCaffrey or Anne Rice who discourage fans from writing about their books and have asked sites like FanFiction.Net2 to remove all stories of their works.
However the biggest concern of authors who even approve fan fictions is to make sure that the fan fiction remains a non-commercial activity.
In the case of Warner Bros. Entertainment, Inc. and J. K. Rowling v. RDR Books3, the defendant was sued for copyright infringement for attempting to publish the print version of his online lexicon on J. K. Rowling's best seller Harry Potter series. The plaintiffs argued that defendant's attempt to publish for profit a print facsimile of The Harry Potter Lexicon, a free online guide to the Harry Potter fictional universe, constituted an infringement of their copyright and was not protected by the affirmative defence of fair use.
Plaintiff contented that she herself plans to write a Harry Potter encyclopaedia and that the publication of a similar book before her own would hurt the proceeds of the official encyclopaedia, which she plans to give to charity.
The Court held that "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 fictions can only be tolerated if they do not work for commercial benefits. Implications could be faced by fan fiction authors in cases where they publish their work for commercial benefits.
Intellectual Property Rights are granted with an objective that they shall promote innovation and encourage creators to create more. They act as an incentive to create the work. They should never be used to impede innovation. Fan Fictions are creations by amateur creators who if given opportunity might create something great in future; therefore a lenient and balanced approach must be taken towards them.
1 Section 14 of the Copyright Act, 1957
2 FanFiction.Net is a fan fiction archive online site. Writers are allowed to upload stories based on popular books, TV series, films etc. However since the site's founding, several professional authors including Anne Rice, Dennis L. McKierman, Irene Radford, J.R. Ward and others have asked those stories based on their copyrighted and trademarked 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 to the subject matter. Specialist advice should be sought about your specific circumstances.