Fan Fiction and Copyright

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Title:	Fan Fiction and Copyright
Creator:	Judith Gran
Date(s):	1999
Medium:	online
Fandom:	Star Trek: TOS, others
Topic:	see below
External Links:	Fan Fiction and Copyright, Archived version
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Fan Fiction and Copyright is an essay by Judith Gran.

In it, she discusses copyright, fair use, fan works, and cites a number of legal cases.

It was originally published on the GeoCities site: Society for Slash Diversity and COCO CHANNEL, in late August 1999 as a follow-up to comments made by Killashandra in A 1999 Interview with Killashandra. The essay was later posted to Judith's own website.

Excerpts

In my experience over the years of talking and writing about copyright issues with Trek fans, the biggest hump to get over (so to speak) seems to be the concept that there are *exceptions* in copyright law to the general rule that you can't copy someone else's product. People get stuck on the undeniable reality that there is "substantial similarity" (the term of art in copyright law) between fan fic and the parent product, so how can fan fic *not* be infringing?

Yes, fan fic copies. That doesn't resolve the copyright issue, though, because of those pesky exceptions.

I believe that non-commercial fan fic falls squarely within the "fair use" exception to the exclusive rights of the copyright owner. I base this on a reasonaby exhaustive reading of the case law, treatises, legislative history of the U.S. copyright statute and so forth. "Fair use" is a statutory EXCEPTION to the exclusive rights of the copyright owner. It "confers a privilege to use copyrighted material in a reasonable manner without the owner's consent." *Belmore v. City Pages, Inc.,* 880 F.Supp. 673, 676 (D. Minn. 1995).

Since fair use does not require the copyright owner's consent, I'm not even going to go into the issue whether Paraborg et al. have implicitly consented to fan fic or lost the right to enforce their copyrights through inaction. That's a whole 'nother legal doctrine known as estoppel, and I want to stick to one issue for the moment.

Fair use is one of a number of statutory exceptions to the exclusive rights of the copyright owner. Other exceptions apply to reproduction by libraries and archives, performance or display in the course of teaching activities, secondary transmissions other uses of copyrighted material. Fair use (which originally developed in the case law and eventually was codified in the statute) is the general, catch-all concept that covers other potential exceptions.

How would these concepts apply to fan fiction? Clearly, the essence of fan fiction is a transformative use of Star Trek; fan fiction does not borrow from Star Trek merely to avoid "drudgery." Fans must consume the original in order to write fan fiction; moreover, fan fiction presumes that *its* consumers also have consumed the original. Slash fan fiction is not a market substitute for the original or potentially licensed derivatives since none exist or are likely to in the foreseeable future.

Remember that given the evidentiary presumption in favor of fairness for a noncommercial use, the copyright owner must prove harm to the market for the original; it's not enough to speculate that such harm will occur. If Paramount were to sue a K/S fanzine publisher, I believe the fundamental issue to be tried would be the effect of K/S zines on the market for licensed Star Trek products and spinoffs such as commercially-published novels and new TV series and films.

If I were representing the zine publisher I would try to prove that: (a) In almost thirty years of unrestricted, unregulated fanzine publishing, Star Trek fanzines have never commanded a market of more than a few thousand purchasers. For K/S zines, the figures are much lower (most zines now have a circulation of about 125.) Because of the tiny market for K/S fan fiction, the copyright owner will never decide to license it even if for some unlikely reason Paramount wanted to get into the slash business. Further, even if each K/S zine sold represented the loss of a sale to Paramount, the market harm would be de minimis.

I would also show that (b) the sale of zines does not, in fact, result in loss of sales of licensed Star Trek products. Purchasers of K/S zines invest heavily in commercial Star Trek products, e.g. videos, novels, T-shirts, posters and multiple viewings of the films. In addition, K/S fan fiction brings fans together at conventions, where they become a captive market for licensed products.

And I'd show that (c) K/S fan fiction keeps alive its readers' interest in Star Trek and its progeny, rather than the opposite. I'd present systematic evidence to prove the above, including surveys showing K/S fans' actual purchasing practices as compared to scientifically-chosen control groups from the markets identified by the copyright owners and licensees as targets for their products. Since it's unlikely that the copyright owner could produce evidence of market harm, I'd feel comfortable about our chances of success.

Although since Campbell there is no hard and fast presumption of "unfairness" against a commercial use, if I were a zine publisher concerned about the legal status of my publications, I'd keep my fanac nonprofit. Incidentally, it's worth remembering that the only zine that Paramount ever threatened to sue for copyright infringement was the genzine Dreadnought Explorations, which Paramount went after because of its similarity to commercially- licensed professional fiction. When I was a law student, I interviewed Bruce Hosmer, the attorney handling Star Trek products for Gulf & Western, about this issue and he told me that DE was ordered to cease and desist because the photograph of the Enterprise on the cover suggested to the reader that this was an "official" Star Trek product. Mr. Hosmer also stated that he thought it was possible for a fanzine to be a "fair use," though understandably as the representative of the copyright owner he took a fairly restrictive view of the type of zine he considered "fair." Under his standard, though, I'd have to say that an a/u zine set in pre-Reform Vulcan, in which the characters are long-haired warriors and love slaves and may even have different names, has a certain claim to "fairness" ... but I'm not about to say anything here that will discourage good, "realistic" K/S. I don't think I need to, though, since in my opinion all nonprofit K/S fiction qualifies as "fair use."