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Aaron Schwabach

Abstract

The scholarly discourse on fanfic and other fan works emerged over a decade ago as a niche topic mostly of interest to fans. It has since generated dozens of articles and a small but steadily increasing amount of litigation. When the subject was new, each article had to begin with an explanation of what fan works are, why fictional characters are or are not protected by copyright, and how parody and fair use are related. This Article seeks to place a capstone on the author’s work during that early era of fanfic scholarship and to move the discourse forward by providing a brief review of foundational issues and previous work in the field before looking to new developments and making hopeful predictions for the future of the law governing fan works.

The Article first discusses the fundamental challenge of delineating the border between derivative and transformative uses and then addresses the rights that must be balanced by the law regulating fan works: those of authors and those of consumers/fandom. Copyright law primarily protects the economic rights of authors, but this protection is essentially static; the Article argues that fan works can act dynamically to save the underlying originals from becoming dated or being dragged down by the original author, and copyright law, as it evolves, should acknowledge the cultural interest thus protected. Future developments in copyright law must consider the need for a system of shared and limited copyright, address past cultural appropriation by authors and related harms, and look beyond the flaws of individual authors and toward the fandom as a whole. The Article ultimately suggests that the recognition of a shared common area for creativity between authors and fans can not only benefit fans but also authors, both economically and in non-quantifiable ways.

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