Rewriting TV: Fan Fiction as Fair Use – Introduction

1. Introduction

She sits at her computer, thinking about the latest episode of her favorite TV show. It could be Angel, or Stargate SG-1, or West Wing, the fandom does not matter. What matters is that the characters have grabbed her and she feels the need to carry the story on. She plays with different scenarios in her mind, thinking of how the characters would react to this situation or that; how they would interact with the characters she has created in her head; how they would play with characters from a different fandom. She replays the episode in her head, looking for gaps to fill. She thinks of the character’s pasts and futures and where they should go from here. She considers the secondary characters who did not get much airtime or those characters who are marginalized. And when she has an idea, she starts to write. She is part of a long tradition of storytelling, building on cultural blocks as Shakespeare did when he reinterpreted the star-crossed lovers theme to create Romeo and Juliet.¹ She follows in the tradition of Tennyson crafting his Ulysses from Dante’s version which Dante in turn crafted from Homer’s Iliad.² She is a fan writer. Technically, in a world where culture is commercialized and owned by a select few corporations, she is also a copyright infringer.

Fan fiction is not a new phenomenon. It draws on a tradition of storytelling that stretches backwards through time for millennia. “For most of human history, the storyteller was the inheritor and protector of a shared cultural tradition. Homer took plots, characters, stories, well known to his audiences, and retold them in particularly vivid terms.”³ Fan fiction continues this tradition into the digital millennium. The main difference is that our shared culture is a media culture, one in which the characters, plots and stories we know are those of our favorite TV shows and movies.⁴ As a distinct, recognizable medium, fan fiction really started with the fanzines of Star Trek in the 1960s.⁵ These fanzines were written and published by fans, then distributed through the mail, flying under the corporate radar.⁶ However, with the advent of the World Wide Web, writers and editors could publish and distribute fan fiction much more quickly and cheaply to a wider audience, and the corporations no longer turned blind eyes.⁷

What this paper attempts to do is provide an analysis of fan fiction from a legal perspective, ultimately arguing that while, from a social perspective, it should not even be labeled “infringing,” legally it would be but for a fair use defense. Some corporations have attacked fan sites consistently with “cease and desist” letters, generating bad media press and hostility from the fans who put money in their pockets. Others have openly approved of fan creativity, granting an implied license. To date, no fan fiction cases have gone to court. This uncertainty puts both fans and corporations on uneasy footing and as the Internet becomes a more and more powerful conduit of information, what is owned and what the public is allowed to do with it is going to become more of a legal hotbed.

For a fair use defense to succeed, courts must consider four prongs: the nature and use of the infringing work; the nature of the copyrighted work; the amount and substantiality of the copyrighted work used; the effect on the market.⁸ To understand the first prong (and to some extent, the fourth), one must first understand fan culture and the reasons people write fan fiction. Fan fiction is not (as it is popularly perceived) bad stories written by obsessed housewives and teenagers. It is criticism and commentary, as well as an educational tool written by people in many different walks of life, with many different levels of education. Section II of this paper will address the fan community and the phenomenon of fan fiction, looking at the sociological purpose it serves—how it works in the public’s interest. For purposes of this paper, the following definitions apply: Fan fiction—stories, novellas, novels, poems written by fans in which characters from popular TV shows and movies are used in a new plot/scenario crafted by the fan writer; fandom—the particular TV show/movie “universe”: i.e. the Star Trek fandom, the Buffy/Angel fandom, the Stargate SG-1 fandom. Section III will consider the legal rights of the corporations who own the copyrights the fan writers are supposedly infringing. Finally, Section IV will present an argument as to why fan fiction should be not only allowed under a fair use defense, but encouraged for the reasons the right to grant copyrights was included in the Constitution: “to promote the progress of science and the useful arts.”⁹