Fanfiction and Copyright: Has the digital age rendered copyright laws obsolete?

Fanfiction and Copyright: Has the digital age rendered copyright laws obsolete?

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This article will argue that the digital age has rendered copyright obsolete as the proliferation of Internet fanfiction has demonstrated that contemporary copyright is working against its original aims. Copyright originally aimed to promote the sharing of ideas and cultural enhancement achieved through the creation of original works, as well as educating the public by providing an economic incentive to create new works (Netenal, 2010). Fanfiction has always existed in different forms, and it is an essential form of cultural expression. Internet fanfiction is a platform for the sharing of ideas and expression of culture; including the culture of those who?s views are not represented in traditional media. Fanfiction also serves to educate the public by allowing new writers to practice and improve skills, and providing a platform for sharing knowledge and ideas. In addition to the positive effects of Internet fanfiction, all of which aligns with copyright?s original goals, internet fanfiction is a non-commercial creative expression and does not compete on the same market as the original work, and does not interfere with the economic incentive to create new works. Conversely, fanfiction often serves to introduce new readers and promote the original work. The examples of the Seinfeld trivia book and the Harry Potter Lexicon explore situations where fan works can potentially interfere with the authors market for future derivatives, and concludes that the constructive purpose served by transformative works renders them separate to Internet fanfiction. Copyright is an outdated concept that is not relevant or useful in the current creative climate, and the issue of Internet fanfiction demonstrates that it can pose obstacles to cultural, social, and educational enhancement.

Fanfiction and Copyright

Fanfiction in its current form is an infringement of copyright. Fanfiction is defined by the use of characters and expression from an original creative work and the creation of derivative works, all of which is illegal under current copyright law (McCardle, 2003). Most fanfiction expands beyond the limited allowances to comment and critique allowed through fair use (Johnson, 2016). They also borrow substantially from the creative work, and fair use is less likely to apply the more of the original substance is copied (McCardle, 2003). As characters typically closely resemble the characters in the original work, and are not hyperbolised to the point of parody, the ?parody? fair use argument does not apply. Some characters, settings, and plot elements are also trademarked, serving another avenue for prosecution. (McCardle, 2003). The advent of the Internet and the popularity of fanfiction has presented a challenge in policing and navigating copyright laws to uphold copyright.

Fanfiction as a cultural phenomenon

Unofficial derivatives that build on an author?s work have existed throughout history (Doctorow, 2008). Internet fanfiction only changed the format and medium of fan works and placed them on a platform that allowed for interaction and instant communication and feedback between authors (McCardle, 2003). There is no difference between Hamlet, a retelling of an ancient Danish folktale, and Harry Potter and the Methods of Rationality, an immensely popular Harry Potter fanfiction (Harry Potter and the Methods of Rationality, 2018). The only ways to distinguish the nature of the two works are the time period that they first appeared in, and the platform they were presented on. Fanfiction, whether it is Harry Potter and the Methods of Rationality or Hamlet, is an expression of culture and individual interpretation that builds on, subverts, or critiques the original media (Jenkins, 1992). However, one work appeared after the Statute of Anne and derived from a text that is still protected under copyright law. It is therefore illegal (McCardle, 2003). This illustrates that current copyright laws obstruct a media creation process that is demonstrably older than the copyright itself.

One of the original purposes of copyright was to encourage the creation and expression of original ideas (Netanel, 1996). Copyright should by extension encourage cultural enhancement. Popular stories are an essential facet of culture, and the discussion and dissemination of these stories only adds to their value (Becker, 2014). The imagining of new fan works augments the cultural value of the original by adding different perspectives, values, and ideas beyond the world originally created by the author (Jenkins, 1992). One interesting pattern in fanfiction is the proliferation of female writers. Over 90% of fanfiction authors are women. Becker suggests that this is because they are rarely the target audience of popular creative works in media, and fanfiction creates a forum for women to project their perspectives onto popular works (Becker, 2014). This adds immense cultural value as it allows for the direct comparison of contrasting perspectives on a work, and presents an opportunity for women to rectify their lack of media representation. Fanfiction can also express ideas that are too controversial to be accepted by traditional media companies (Jenkins, 1992). Fanfiction has immense cultural value, and actively advances the creation of original ideas.

Fanfiction as a social phenomenon

Another purpose of copyright is to educate the public, and promote the sharing of ideas (Netanel, 1996). Fanfiction allows young authors to develop their skills and express their ideas. Internet fanfiction sites also allow for constructive feedback and evaluation of material (McCardle, 2003). The communities created by fanfiction are positive environments that encourage writing and discussion (Becker, 2014). Fame and recognition by other fans for fan work contributes to the writers ?fandom identity?, which is just as important as positive personal identity as an incentive to create works (McCardle, 2003). The read/write culture of these environments fosters a relationship with the texts that leads to a deeper reading and interpretation or the original work (Netanel, 2010). This is essentially another form of private discussion of popular works. Harry Potter and the Methods of Rationality illustrates another potential avenue for fanfiction to educate. The premise of the work applies scientific knowledge and understanding to the work of Harry Potter, often in a critical way. This engages and educates readers of the popular original books, and encourages them to enjoy scientific learning by presenting it through the lens of a creative world. The website which hosts the fanfiction contains a section which explains how readers who have taken an interest in the scientific methods explored in the fanfiction can learn more. Sharing and discussing knowledge and ideas from texts is essential to social and educational advancement, as any form of information is useless if it unable to be examined and used (Patterson and Lindberg, 1991). Discourse and creative use of a published work can also lead individuals to scrutinse their own society and experiences (Lessig, 2014). The analysis of literary works is an important feature of any education system, and is a required part of every citizen?s education in Australia. It naturally follows that Internet fanfiction, and the opportunities it presents to discuss and share ideas, should be a legal form of educational discussion of literary works.

Fanfiction serves another social function by promoting and improving young authors who could become published authors in the future (McCardle, 2003). The practice allows authors who enjoy writing and also consuming media to improve their skills (Chua, 2007). Cory Doctorow, a prominent author and activist for privacy rights and social freedoms, first wrote fanfiction at the age of six, and continued to write fanfiction throughout his young adult years. He states that ?the fanfic [sic] habit is a literary habit?, arguing that the ability to be positively creative and practice writing is essential for developing authors. Fanfiction is not a creation in it?s own right, and although it has creative and cultural value, the value to the author lies in their ability to express ideas and participate in a forum for discussion and development (Doctorow, 2008). While Doctorow is a fierce defender of fanfiction, some authors dislike their work being used as a platform for young authors to develop and practice skills. Anne Rice dislikes fanfiction of her work, and J.K. Rowling only supports fanfiction of a non-sexual nature (McCardle, 2003). The views of the author are largely irrelevant as the authors right to copyright is strictly economic (Becker, 2014). However, authors are still capable of preventing fanfiction works despite their social and educational value. The recent Digital Millennium Copyright Act (DMCA) provides copyright owners with the tools to remove creations that contravene their copyright (Johnson, 2016). If copyright were functioning according to its original social goals, copyright owners would not have the ability to impede the education and development of new writers.

Fanfiction and the commercial market

Copyright in its current form is designed to allow authors to realise the full monetary value of their own work. This gives authors an economic incentive to continue creating and enriching society with literary contributions (Netanel, 1996). Commercial use of an authors work is reasonably prevented by copyright, as it is unjust that another individual can profit from copied work (Doctorow, 2008). The current form of copyright as a property right allows authors to litigate against any work that is a derivative of theirs, even if it does not demonstrably compete with their original work (Netenal, 2010). However, derivative works are not substitute works, and don?t interfere with the incentive to purchase the original work by presenting an alternative form of consumption. Fanfiction by nature significantly changes the original work, and understanding and enjoyment of the fanfiction often rests on familiarity and understanding of the original (McCardle, 2003). The lack of competition between the original and fan produced work suggests that a copyright which prohibits the free creation of unofficial derivatives is unnecessary, and has no legitimate reason to exist.

Internet fanfiction has no commercial opportunities as it is free to access and lacks an avenue for profit. Fanfiction authors often include a ?disclaimer? at the top of their work to advertise that they do not receive any profit or monetary benefit from its production. Fanfiction websites do use add revenue to offset the costs of running the website, but no benefit is forwarded to the writer other than a public forum for their work (McCardle, 2003). Even before the Internet was created, fanfiction did not result in any profit for the authors, proving no commercial intent or incentive to the practice (Jenkins, 1992). Fanfiction endorses and supplements the original work, and often introduces new fans and readers to the original through fan culture. The fanfiction community is collaborative and communication between different ?fandoms? (communities of fans of original works) facilitates exposure to new creative texts, thus creating more commercial potential for the original (Becker, 2014). One popular ?genre? of fanfiction is crossover works that combine the worlds of multiple original works. This is an effective way of introducing readers of one original text to another (Jenkins, 1992). Fanfiction can also promote commercial consumption of the original work by maintaining discourse and interest for fans between installments of the copyrighted work being commercially available. In the two years between the release of Harry Potter and the Half Blood Prince and Harry Potter and the Deathly Hallows, fanfiction kept the fan community interested and provided a forum to continue discussing the story (Schwabach, 2016). Fanfiction does not compete in the market of the original work and does not threaten the author?s ability to profit from it (Chua, 2007).

One potential impact that fanfiction does have on the market is the limitation it places on future derivative works an author could create. The case Castle Rock Entertainment v Carol Publishing Group inc found that an unofficial Seinfeld trivia book was a breach of copyright, as it limited the market for potential derivatives the copyright owner could make in the future (McCardle, 2003). The existence of a derivative work that expresses the original in a form that the author would have created, had the fan work not been created, could be argued to be competition for the author and therefore unjust and a disincentive to create original work. However, this example demonstrates a commercial and not a fan use, and could be argued to be a transformative work. A similar case occurred with the internet creation of a Harry Potter lexicon that compiled an encyclopedic website of Harry Potter characters, references, and facts pertaining to the world of the book (Chua, 2007). The lexicon was taken down and the author was fined. This occurred because the work served a constructive purpose that could be interpreted as transformative, rather than derivative. The Seinfeld trivia book served a similar constructive purpose as it could be used as a reference material, and can also be classified as a transformative work under the definition established in the case against the Harry Potter Lexicon. The lexicon also competed with a future transformative work that served a similar function in the compilation of knowledge, J.K. Rowling?s Pottermore (Chua, 2007). Labeling these works as transformative is essential to analysing the copyright defence against them.

The Harry Potter Lexicon incident was met with negative fan response, particularly as the author of the original work had previously openly supported non-sexual fanfiction, and had even posted the lexicon on her personal website (Chua, 2007). Both this and the Seinfeld examples are rare in that unofficial works were prosecuted. A typical example of fanfiction has never been tested in court for copyright, possibly because the infringement is not serious enough to be worth pursuing. The Harry Potter Lexicon and Seinfeld triva book establish that transformative works that threaten the authors future potential to create works do infringe copyright and can be prosecuted. However, these were not traditional fanfiction examples, and lacked a use of the character, a defining element of fanfiction (McCardle, 2003). It is impossible to suggest that a fanfiction author could create a work that competes with a future derivative in the same way a transformative work can. A fanfiction author may create a work with the same premise as a future official work, but it does not exist in the market or fill in a space in the market that could be replaced with a future transformative work. While there is an argument against limiting use of the copyright, the current copyright protection against fanfiction serves no useful function in protecting the author.

The advent of the Internet and the ability for users to create fan works on masse has demonstrated that copyright serves as a barrier to its original goals and is irrelevant in the contemporary cultural landscape. The justification for copyright as a mechanism for the promotion of new ideas and original thinking does not rectify with the banning of fanfiction, which allows for a platform of new, controversial ideas and critique on works of popular culture. Fanfiction additionally serves an educational purpose, both in the development of new authors and the educational properties of the works themselves. In addition to promulgating the original aims of copyright, fanfiction does not impact the economic incentive provided by copyright to create new works. Internet fanfiction is non-commercial and often serves to promote the original work and author. Although tramsformative works that serve a constructive purpose could be construed as limiting the author?s market for future works, typical Internet fanfiction is unlikely to fall under this category. Copyright has become obsolete, and is now preventing cultural, social, and educational advancement.


Journal Articles

Becker, J. (2014). Stories around the Digital Campfire: Fan Fiction and Copyright Law in the Age of the Internet. Connecticut Public Interest Law Journal, 14(1), pp.133?155.

Chua, E. (2007). Fan Fiction And Copyright; Mutually Exclusive, Coexistable Or Something Else? Considering Fan Fiction In Relation To The Economic/Utilitarian Theory Of Copyright. Murdoch University Electronic Journal of Law, 14(2), pp.215?132.

Johnson, B. (2016). Live Long and Prosper1 : How the Persistent and Increasing Popularity of Fan Fiction Requires a New Solution in Copyright Law. Minnesota Law Review, 100(4), pp.1645?1687.

McCardle, M. (2003). Fan fiction, fandom and fanfare: What?s all the fuss?. Journal of Science and Technology Law, 9(2), pp.1?37.

Stendell, L. (2005). Fanfic and Fan Fact: How Current Copyright Law Ignores the Reality of Copyright Owner and Consumer Interests in Fan Fiction. SMU Law Review, 58(4), pp.1551?1581.


Doctorow, C. (2008). Content. Project Gutenberg.

Jenkins, H. (1992). Textual Poachers: Television Fans and Participatory Culture. New York: Routledge, pp.152?184.

Lessig, L. (2014). Remix. New York: Penguin Books.

Netanel, N. (1996). Copyright and a Democratic Civil Society. The Yale Law Journal, 106(2).

Netanel, N. (2010). Copyright?s Paradox. New York: Oxford University Press.

Patterson, L. and Lindberg, S. (1991). The Nature of Copyright. Athens: University of Georgia Press.

Schwabach, A. (2016). Fan Fiction and Copyright. London: Taylor and Francis.


Harry Potter and the Methods of Rationality. (2018). Harry Potter and the Methods of Rationality. [online] Available at: [Accessed 15 Jan. 2018].


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