A fan work is any fan-created work that is based on or incorporates pre-existing fictional worlds or characters; fan fiction, a subset of fan work, is fictional writing produced by fans for non-commercial purposes and is typically published online without the copyright holder’s explicit permission. The urge to create fictional stories based on pre-existing works is nothing new; both the Aeneid (19 BC) and Dante’s Inferno (1331)—due to their reliance on and expansion of the original narratives—could be interpreted as fan fictions of the Odyssey and the Bible, respectively. And fan fiction as we know it today can be traced back to the Star Trek fandom’s use of fan-created zines in the 1960s. Currently, the two most popular methods of fan fiction publication are online platforms, notably FanFiction.Net, which hosts 12 million users, and Archive of Our Own (AO3), which hosts over 8.2 million users. However, the widespread online publication of fan fiction raises complex legal questions regarding copyright—particularly fair use and DMCA takedowns—with fan fiction existing in a legal gray area.
Under copyright law, fan fiction is often considered a derivative work, as it generally incorporates or is based on pre-existing copyrighted works. However, under 17 U.S.C. § 106(2), copyright holders have the exclusive right to “prepare derivative works based upon the copyrighted work,” thus potentially making fan fiction subject to copyright infringement lawsuits. Distinguishing between derivative and transformative uses in fan fiction has also presented a complex legal question within the context of copyright law. This distinction is particularly important, as transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”
The complex relationship between fan fiction and copyright law, particularly regarding derivative works, has led to the development of digital mechanisms to address potential infringement issues. The Digital Millennium Copyright Act (DMCA), passed in 1998 to “adapt copyright law to the digital age,” is one of the most prominent of these mechanisms. The DMCA, among other things, outlines a procedure through which copyright owners can request that infringing online content, including fan fiction, be removed without filing a lawsuit. Outlined in 17 U.S.C. § 512, this DMCA notice and takedown process allows copyright holders to send takedown notices to Internet Service Providers (ISPs) and Online Service Providers (OSPs)—including fan fiction platforms like FanFiction.Net and AO3—requesting that the service provider remove the infringing material. If the service provider determines that the takedown notice is valid, they are expected to “expeditiously remove [the] infringing content” to maintain protection against secondary liability for copyright infringement.
If an individual believes their content was improperly removed, they may submit a DMCA counter-notice. Fair use frequently serves as a basis for such counter-notices, highlighting a tension between the DMCA and fair use doctrine. However, the DMCA takedown system is susceptible to abuse; legal scholars have suggested that it is a common occurrence for people to send takedown notices without a good-faith belief of infringement, and one study found that approximately 30% of takedown notices were potentially invalid. Additionally, in the context of fan fiction, the burden of filing a DMCA counter-notice often falls on the fan creator, who may lack the financial resources or legal knowledge to do so; therefore, these counter-notices are infrequently pursued.
As discussed above, because the fair use defense is often used to justify DMCA counter-notices, the two legal mechanisms are often in conflict with one another. Fair use is often considered a fan creator’s primary defense against copyright infringement claims. 17 U.S.C. § 107 outlines four elements that are used to determine whether a work constitutes fair use. In the context of fan works, the four considerations are: (1) the purpose and character of the fan work’s use and whether it is commercial in nature; (2) the nature of the original work; (3) the amount and substantiality of the original work used in the fan work; and (4) the effect of the fan work upon the potential market for or value of the original work. Given that the effect on the market is often highly relevant in fair use analysis, some scholars have emphasized the significance of the fourth factor––particularly because of fan fiction’s generally non-commercial nature––arguing that fan fiction does not negatively impact the original work’s market or serve as a substitute. Additionally, when analyzing a fan’s work, the first factor—purpose and character of use—is critical, especially its assessment of the work’s transformative nature.
Both scholars and advocates of fan fiction have often adopted the position that fan fiction should be protected under copyright law because of its transformative nature. Professor Rebecca Tushnet, for example, has argued that fan fiction should be protected by fair use because it “involves the productive addition of creative labor,” and Professor Aaron Schwabach has emphasized that the goal of fan fiction is to “tell new stories, not repeat old ones.” Further arguments in favor of protecting fan fiction include its non-commercial nature and the fact that it “does not act as an economic substitute for the original copyrighted work.” This emphasis on fan fiction’s transformativeness is further supported by Justice Souter’s legal reasoning in Campbell v. Acuff-Rose Music, Inc., which noted that the greater the transformative nature of a new work, the less significant other factors like commercialism become in fair use determinations. More recently, the Supreme Court revisited “ transformativeness” in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which clarified that, while adding “new expression” is “relevant to whether a copying use has a sufficiently distinct purpose or character,” it is not sufficient to deem a use transformative for fair use purposes; ultimately, the more similar a new work is to the original work in “purpose and character,” the more pronounced the transformative nature must be.
As previously noted, there is significant tension between DMCA takedowns and fair use, particularly in the context of fan fiction. DMCA takedown notices often operate without regard for the fair use doctrine and have become a “prime tool for removing fan fiction from the Internet.” Consequently, while the DMCA has provided greater certainty for service providers and copyright holders, it has chilled fan creativity through legal intimidation and the risk of arbitrary legal action. Unlike large copyright holders, individual fan creators often lack the legal knowledge and financial resources to assert their fair use rights when faced with takedown notices. This disparity in resources hinders the creation of transformative works, which, as noted in Campbell, “the goal of copyright … is generally furthered by.” In particular, the fair use defense was included in the Copyright Act to protect “socially beneficial endeavors,” such as creating fan fiction, which often fosters creativity and community engagement. However, the obvious imbalance between copyright owners and fan creators has reduced the defense’s effectiveness and availability.
Evidently, our current legal framework does not adequately address this imbalance, leaving fan creators and their transformative works unprotected. Given these inadequacies, alternative, community-based solutions, such as self-policing and sanctions, are emerging to fill this void. Fan-made best practices, for example, have provided mechanisms for protection and self-regulation within fan communities, particularly against issues like plagiarism and the undisclosed use of AI. Fan communities often formalize existing social norms and create community-driven methods of enforcing best practices. Although it is important to keep in mind that these initiatives lack the force of the law, community-led solutions can still facilitate discussions about protecting the rights of copyright holders without stifling transformative fan creativity.
Lindsay Ito is an Associate Editor on the Michigan Technology Law Review.