By: Brandon Shelton
I have recently been absolutely obsessed with Bo Burnham’s latest Netflix special “Inside.” There are several moments of relatability and genius, but one particular statement that keeps eating away at my soul comes from the carnival tune Welcome to the Internet: “Could I interest you in everything all of the time? A little bit of everything, all of the time?” The Internet has rapidly gone from a wide-open plane of unfilled memory to being stuffed to the brim with more information and content than any mortal could ever possibly digest. With that rapid evolution comes the desire by others to add their own content, which oftentimes is largely derivative of other content that already exists (I mean, everything derives from Shakespeare anyways, right?).
The concept of derivative content isn’t anything new to the world of fiction, nor is it exclusive to the Internet. There are plenty of unauthorized examples in literature, such as The Wind Done Gone by Alice Randall and 60 Years Later: Coming Through the Rye by John David California. However, the Internet has certainly provided a very easy to access platform upon which to submit derivative content, authorized or not. A prime example of such derivative content that has become far easier to produce and access is the fan film. Indeed, a recent favorite of my own was a short (surprisingly well done) X-Men film centered on the fan favorite character Gambit. Lest there be any doubt: this fan film was not authorized by Marvel.
Derivative Work Lawsuits
A recent, and very valid, question that was posed to me was: how can I avoid a lawsuit when creating a fan film?
As an initial matter, there is no way to “avoid” a lawsuit from anyone over anything. Anyone is allowed to file a lawsuit, absent some clear misconduct where the use of the legal system is being abused. If there is an owner of any copyrighted content, or its underlying creative aspects, such as its well-developed characters and storylines, they always have a right to bring a lawsuit if anyone is infringing on their rights associated with copyright ownership. Under § 106(2) of the Copyright Act, the copyright owners have the exclusive right to prepare and authorize others to prepare derivative works based on an already existing work of authorship. By creating an unauthorized derivative work of any work of authorship, you may already be in the territory of infringing on the rights of the copyright owners.
At this point you may be asking yourself: if the right to sue is so strong, how in the world is there so much fan fiction and fan film out there??? The answer is a bit complicated, but the short answer is: because the owners probably have allowed the derivative content to exist. Oftentimes copyright owners gladly allow fan-created derivative content to exist without any qualms, especially in the cases where the fan fiction doesn’t provide the creator with any commercial benefit and is appropriately attributed. Part of the thinking is that allowing robust fan interaction can only stand to benefit the commercial demand for the original works themselves. Additionally, a well-funded copyright owner will rarely win any new fans by quashing the creation of derivative fan fiction that doesn’t generate any income to the fan creator.
An example that comes to mind from my wee days in law school is the plethora of Harry Potter fan fiction available in every corner of the Internet. Author J.K. Rowling famously was flattered and gave her blessing for fans to develop and post any fan fiction online, provided that such derivative works were submitted without any commercial purpose.[i] Rowling is quite serious about the non-commercial purpose, as she successfully sued a creator of a Harry Potter encyclopedia.[ii]
One Limited Exception: Fair Use Doctrine
As with every conversation I have in describing the law to both of my fans (of which my mom is at least one), there’s always an exception out there. Section 107 of the Copyright Act provides that the creation of derivative works “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research, is not an infringement of copyright.” This is otherwise known as the Fair Use Doctrine. Part of the justification for Fair Use is trying to resolve the inherent conflict with the idea that the First Amendment of the U.S. Constitution allows for criticism and education, and the idea that a copyright holder should have the exclusive right to copy, use, and profit from the work.
Though Section 107 provides a pretty clear and explicit exception to the exclusive rights of the copyright owner, application of the Fair Use Doctrine is not always so clear. Courts will apply a four-factor analysis that considers:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.[iii]
If you’d like some good reading material on how courts view derivative works under the Fair Use doctrine, feel free to check out the 11th Circuit’s decision establishing that The Wind Done Gone was a parody work protected by the Fair Use Doctrine.[iv]
For brevity’s sake, I’d just like to offer up some diatribes I have encountered throughout my career. One of the first attorneys I worked for was reluctant to rely upon the Fair Use Doctrine, primarily because it already establishes an admission that you are copying the original work to some degree, which isn’t a great place to start. However, if we are talking about clearly and purely critical works (for example, a news piece or documentary criticizing the work), Fair Use Doctrine is a critical tool used by filmmakers and journalists to allow for such criticism. In my work with documentary filmmakers, they lean as much as they can on the Fair Use Doctrine to allow use of a multitude of works in their final product, and their insurers specifically require a preemptive attorney input on Fair Use considerations to even allow distribution of the derivative work.
Obviously there are some substantial differences between a critical documentary and a fan film. If we are talking about a fan film that is not a parody (meaning it simply builds on the original work, and there isn’t a great argument that the derivative work is critical of the original), you will have to tread carefully. First and foremost, most copyright owners are going to take issue if you create the fan film with the purpose of deriving any kind of commercial benefit (i.e. getting paid for ads on YouTube). However, many might be willing to turn a blind eye if you simply make it for fun, without any for-profit goals in mind. If the underlying work itself is a very well-known work with a robust fan fiction community, it would be worth your while to see if there are any publicly available news or statements by the owner expressing approval of non-commercial fan fiction, or if there is already a large and well-visible community producing fan films or fiction.
If it is still difficult to glean whether or not the owner allows for fan works, it would also be helpful to see if the owner is particularly litigious on fan created derivative works. A simple Google search of the work itself plus “lawsuit” might provide some insight into this. Reddit forums and other postings might also be helpful to see what other fans have been able to safely create.
It also doesn’t hurt to ask. If the work is so far a relative unknown, you can always reach out to the publisher of the work, or the author themselves to see what their policy is on fan fiction and fan films. They will almost always be pretty clear about what their guidelines are in allowing fan created content. A good deal of publishers and authors will also provide a free, limited license to create such works, provided that the work itself is also offered up for free.
The TL;DR answer to the question posed is: there is not necessarily a way to prevent a lawsuit for a fan film, as anyone can file a lawsuit. But if you do some research on the underlying work, you can give yourself a good idea of whether or not there will be pushback from the copyright owners, or if they have already given their stamp of approval on fan-created derivative works. If your fan film is a parody that is clearly critical of the original work, there is definitely some protection afforded by the Fair Use Doctrine, but it is expensive to find out if you are right under that exception. For that reason, it’s a good idea to see what others have already done before you, or even reach out to the copyright holder.
[i] Waters, Darren. BBC News. Rowling back Potter fan fiction; available at http://news.bbc.co.uk/2/hi/entertainment/3753001.stm.
[ii] Eligon, John. NY Times. Rowling Wins Lawsuit Against Potter Lexicon; available at https://www.nytimes.com/2008/09/09/nyregion/09potter.html.
[iii] 17 U.S. Code § 107.
[iv] Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).
Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.