Fandom vs The Courts: Fan Fiction and Fair Use
|Title:||Fandom vs The Courts: Fan Fiction and Fair Use|
|Date(s):||June 13, 1981|
|Medium:||printed in Alderaan #13|
|Fandom:||Star Wars & other fandoms|
|Topic:||fanfiction as fair use|
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Fandom vs The Courts: Fan Fiction and Fair Use is an 4-page article by Judith Gran that was published in Alderaan #13. It is a response to an article in "Alderaan" #10 (October 1980) by Carol Mularski entitled "The Quest for Legitimacy: Copyright Practices and Possible Infringement in Fan Fiction."
The entire subject of the legality of fan fiction became very visible with George Lucas' crackdown a few months later. See Open Letter to Star Wars Zine Publishers by Maureen Garrett.
The Mularski article argued that some fanfiction may be legal, but probably was not. The Gran article argued that while Mularski made many interesting points, it was flawed.
One excerpt from Mularski's article:
George Lucas and his corporation, Lucasfilm, allowed an announcement through the fan grapevine (at science ficion conventions and in fanzines) that they would not take action against Star Wars fan fiction writers and editors. Lucas made only one stipulation, that the fans avoid publishing sexually explicit SW stories. According to one SW fanzine editor, Beverly Clark, in a letter to me: "Lucasfilm is keeping tabs on people doing SW zines and satires...Lucas himself had let it be known that he did not like X-rated material; specifically he did not like gay stories, and he would personally hang the first person to write or print a gay SW story." These types of stories have been published in Star Trek fanzines, and Lucas Is within his rights to make this request, and expect it to be complied with, especially if one subscribes to the "moral rights" concept of copyright ownership. One area of moral rights In copyright states that the originator has the right to protect his work from what he considers to be mutilation, once the work is an expression of his persona or character. So far, the fans have honored Lucas' request. Although such stories have been circulating "underground," through the mail to individuals or in person, no fanzine, to my knowledge, has published pornographic SW literature. The way Lucasfilm "keeps tabs" on fan activity is to openly buy four copies of each SW-related fanzine. Here again, this amounts to consent to the production of SW fanzines, and it would be difficult, if not impossible, to legally stop such activity at a future date. Despite all the unofficial approval implied by these circumstances, I think that the producers and readers of ST and SW fanzines would breathe much easier if the powers-that-be would write official letters giving permission to use the copyrighted material for amateur publication purposes. I doubt that this will ever come about, however. The lack of official permission is probably one weapon being kept in Paramount's and 20th Century Fox's legal arsenal, just in case it is ever needed.
Excerpts from Gran's article:
Carol Mularski has performed a valuable service to fandom. By focusing on the 'fair use' section of the copyright act (17 U.S.C. 107). She has identified the legal issue which would require resolution if a publisher of fan fiction were ever sued for copyright infringement. That issue is: are fanzines a fair use of copyrighted material? If so, then fans require no permission from the owners of Star Wars and Star Trek copyrights to publish fan fiction. If not, however, then fans are potentially liable for copyright infringement. Carol has managed to clear away much of the underbrush which has obstructed discussion of this simple issue in the past whenever fans have pondered the legal status of fan fiction. However, Carol has seriously misinterpreted the fair use doctrine. I believe this misinterpretation is due to her apparent choice not to consider the way the courts actually apply the doctrine... Carol seems to conclude that although fanzines may be a fair use, probably, they are not. She reaches this conclusion through a discussion of the four fair use factors enumerated in Section 107...
Carol's argument that fan fiction is an infringement raises another question. Why would anyone publish fan fiction if she considered it illegal? The notion that the copyright owner has granted a license through implied or "silent consent" is a fiction at best, for the copyright owners of Star Trek and Star Wars could not possibly be aware of all of the fan fiction actually published. Indeed, it would be highly burdensome to the copyright owner to have to screen all fan fiction, whether in advance or after the fact.Why do some fans continue to argue that fanzines are an infringement, when even the attorneys for the Star Trek copyright owners have stated that they consider fanzines a "fair use"? I have two hypotheses to account for the fact that some fans are "more Catholic than the Pope." One is that fans, being copyright owners themselves, are concerned with the possibility that other fans may be able to borrow their works with impunity. However, this concern is misplaced. From the proposition that fan fiction is fair use of Star Trek and Star Wars copyrights, it does not follow at all that fan fiction may be a fair use of other fan fiction. Fan fiction which copies other fan fiction competes in the same "market" as the original and may be confused with the original. A rip-off of Kraith thus degrades the value of the original Kraith, although does not degrade the original value of Star Trek. The other reason may, perhaps, be found in the conflicts among fans over whether certain types of fan fiction (notably X-rated and explicit sexual material) should be published. Some fans consider that the copyright owner would be more likely to approve non-X-rated fan fiction than the X-rated variety. By this reasoning, "silent consent" is a principle which legitimizes some zines, while leaving others open to the charge of infringement. The principle that fan fiction is a fair use, on the other hand, would legitimize all fan fiction, regardless of theme. Perhaps for some fans, the argument that the legal status of fan fiction is based on the principle of "silent consent" is a way of saving "my zine is legal, but yours in an infringement." Perhaps this reasoning underlies Carol's confusion of moral and legal issues. Regarding George Lucas' supposed preference that no "gay" Star Wars fan fiction be published, she writes, "One area of moral rights in copyright states that the originator has the right to protect his work from what he considers to be mutilation..." This may well be a moral right (depending, of course, on each person's own morality), but it is a right nowhere granted by the copyright law. Of course, even though fans have a legal right to publish material that offends the copyright owner, they may choose not to do so. However, we should not confuse courtesy with legality. In conclusion, each fan must make her own decision concerning the legal risks in publishing fan fiction. Now that readers have been exposed to two radically different views (Carol's and mine) on the leqal status of fan fiction, I hope they will take the next logical step, and go on to read the copyright cases themselves.