If you are a Star Trek fan, the name Axanar has almost certainly crossed your lips or your computer screen recently. Axanar is a film (well, at least a very good trailer aspiring to be a film) set in the Star Trek universe, which tells the back story of Garth of Izar, a character who appeared in one episode of the original Star Trek series. But what makes Axanar notable is not the story, or the excellent production values, but that it is completely unauthorized by Paramount Pictures or any of the other entities connected to the official Star Trek franchise. It is, in many senses of the word, fan fiction.
What is fan fiction? Wikipedia defines it as “fiction about characters or settings from an original work of fiction, created by fans of that work rather than by its creator.”
Recently, the Syfy Channel’s Blastr was putting together an article about the copyright lawsuit brought by Paramount against the makers of Axanar, and they asked me to compile a list of prior legal disputes involving Star Trek fan fiction. Using Wikipedia’s definition of fan fiction, I couldn’t find anything. I expanded the search to other sci-fi fan fiction. I couldn’t find anything there either. I finally logged on to my legal research database and typed in a search for all published opinions in any court that have contained the words “copyright” and “fan fiction.” To my horror, I got nothing.
What gives? The most reasonable explanation is that fan fiction is usually not good enough or marketable enough to create the kind of financial threat to a television program or published book that would cause anyone to bother filing a lawsuit. And in those rare instances when it does rise to that level, the “fan” in question is likely to be a professional artist in his or her own right who isn’t in a hurry to adopt the “fan fiction” label.
Unable to find a single case expressly discussing copyright issues in the context of fan fiction, what I eventually compiled for Blastr was a list of published cases that teach us some valuable lessons applicable to fan fiction. The Blastr piece, Star Trek, Axanar and the Future of Fan Fiction by Dany Roth, is available here. Blastr didn’t have space to print my full list or all of my pedantic introduction, so we thought we’d offer a fuller version of it here. If you don’t like pedantic introductions, skip ahead two sections to get directly to the list.
The Creative Process – Levels of Abstraction
To understand how copyright law might approach a work of fan fiction, you first need to understand that copyright law looks at creative work generally as a series of levels of abstraction. What does this mean? Start by thinking about the stereotypical creative process for a novel. First you have an idea. The idea starts to take form within a fictional or semi-fictional universe as you add locations, characters and other elements. Eventually, you organize these elements into a plot, and then finally you commit all of it to the fixed word on the page. Each step along this path is a different level of abstraction. As you move along through the process, things get less abstract and more specific. The higher the level of abstraction, the less protection copyright law affords to the elements within that level. Let’s take Hamlet as an example, starting from the highest level of abstraction, the idea:
Idea: A Prince goes nuts after the King dies in suspicious circumstances.
Universe Elements: Denmark in the late middle ages; the rampart at Elsinore; the prince’s girlfriend (Ophelia); two of Hamlet’s college buddies (Rosencrantz & Guildenstern), a ghost, etc.
Plot: Hamlet’s father, the Danish king, dies, after which Hamlet’s mother remarries his Uncle Claudius. Hamlet thinks he sees his father’s ghost on the ramparts of Elsinore . . . yadda yadda . . . Hamlet dies, clearing the way for a new royal line under the Norwegian Fortinbras.
Fixed expression: “To be or not to be — that is the question,” etc.
As you can see, the above-described creative process begins with an abstract idea, gets less abstract and more specific as it develops from an idea into a plot, and culminates at the least abstract and most specific level: the actual words on the page. Copyright law lets you copy the highest level of abstraction, the idea (this may be plagiarism, but plagiarism is an academic offense, not a legal one). On the other end of the spectrum, copyright law is less likely to let you copy someone else’s specific written words (the lowest level of abstraction). In between these extremes are various shades: copyright law may or may not protect individual elements of the fictional universe, like characters and locations, depending on whether they are sufficiently original.
Fan fiction obviously borrows more than an idea, but neither is it a wholesale copy of the original text. Also, it doesn’t usually borrow much of the plot from the original, if any at all. Rather, it generally copies the more abstract elements of the fictional universe, like characters and locations. Is this infringement? Well, that’s how many copyright lawyers and judges look at it. If you are copying more than a de minimis amount of these elements, and these elements are indeed protected by copyright, then your fan fiction may technically be copyright infringement, even though to you it is nothing more than a personal homage to your favorite author.
What about Fair Use?
Ok, I know what you are thinking. Doesn’t the fair use doctrine, a statutory defense to copyright infringement, clearly protect fan fiction authors? Well, first of all, the fair use doctrine doesn’t do anything clearly. The fair use defense is a complex balancing test comprised of four factors, any of which may have a big impact on whether the doctrine protects a piece of fan fiction from liability for infringement. Let’s say you want to write an unauthorized episode of Buffy the Vampire Slayer to put on your website. Buffy creator Joss Whedon is well-known for supporting and permitting fan fiction. But let’s pretend he wasn’t. How would the fair use analysis go?
The Purpose and Character of the Use. The first factor is the purpose and character of the use. A non-exhaustive list of “fair use” purposes is written into the Copyright Act and includes criticism, commentary, news reporting, teaching, scholarship and research. This factor is asking you, in effect, why did you write your fan fiction? If you wrote it to critique or parody the original Buffy, this factor probably weighs in favor of fair use. But if you wrote it because you wish you were Mr. Whedon, or because you just love Buffy and want to create more of it for your own and other’s enjoyment, then this factor probably weighs against you.
The “purpose and character” factor is often described as a determination of whether a work is “transformative,” in other words, has it really added something new and different to the world or is it just a substitute for the original. This question creates all sorts of controversy and confusion when it comes to fan fiction. Of course fan fiction is adding something, but is it really something different, or just a continuation of the original? Like most legal questions, it depends. For example, there is probably a good argument that slash fan fiction (a genre of fan fiction focusing on romantic relationships between characters of the same sex) is transformative, even if not directly critical of the original, because of its subversion of expected gender identities. However, most fan fiction authors beware – the bigger a fan you are of the original, the more likely your fan fiction is infringing it.
The nature of the copyrighted work. Since copyright law affords more protection to certain works than others, the nature of the works you have copied matters. Generally, the more fictional and more original a work of art, the less likely it is that copying that art is fair use. Buffy is completely fictional and generally original, weighing against fair use. Admittedly, some of its more stock elements (e.g., vampires like to come out at night) might be unoriginal enough to make this factor a little less lopsided, but generally this factor will come out against fair use.
The amount and substantiality of the portion copied. How much did you copy and how important was it? Chances are, if your Buffy sequel takes beloved main characters, say Buffy and Willow, and has them fighting vampires who have infiltrated at Sunnydale High School, you have borrowed quite a bit from the original, and what you have borrowed is pretty central stuff, so this factor won’t favor you. A closer case may arise when marginal parts of the original are borrowed and expanded, for example, by creating a completely original back story for one of the minor characters, like the “Potential Slayers,” in Buffy’s final season (I vote for Vi).
The effect on the market. This question asks whether you are skimming away some of the business or potential profits from the author of the original. Will people buy or read your work instead of that author’s work? In the Buffy example, Joss Whedon could probably make quite a bit of money selling off the derivative rights to a film company to create additional episodes. If consumers are reading your sequel instead, then this factor doesn’t favor you. Of course, as a practical matter, the likely effect on the market is also why most fan fiction never sees the inside of a courtroom: because, in comparison to the original, very few people are reading your fan fiction, probably nobody is paying for it, and (sorry for this) it is probably not good enough to pose a real market threat to the original.
10 Copyright Cases Every Fan Fiction Writer Should Know About
With all of the foregoing in mind and without further ado, here is my list of ten copyright cases fan fiction writers should know about, and the lessons they teach. Many of them are not about fan fiction per se, and in fact you could argue that none of them are. However, they do provide the closest analogues to important legal principles that, in theory, govern the fan fiction world:
Nichols v. Universal, 42 F.2d 119 (2d Cir. 1930)
This is really the “origin story” of how modern courts separate unprotected ideas from protected expression when it comes to creative fiction. The case was brought by the author of the 1922 play, Abie’s Irish Rose, against the author of the 1926 film, The Cohens v. The Kellys. Both works told the story of the racial antagonism between an Irish family and a Jewish family whose children fall in love with each other. The defendant argued that a plot was too unspecific and abstract to be protected by copyright, and therefore it could be borrowed. The great Judge Learned Hand rejected this notion, even while otherwise agreeing with the defendant that there was no infringement in that case. In doing so, he established the theoretical basis for copyright infringement actions based on borrowed characters:
[W]e do not doubt that two plays may correspond in plot closely enough for infringement. How far that correspondence must go is another matter. Nor need we hold that the same may not be true as to the characters, quite independently of the “plot” proper, though, as far as we know, such a case has never arisen. If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.…[W]hile we are as aware as anyone that the line, wherever it is drawn, will seem arbitrary, that is no excuse for not drawing it . . . we have no question on which side of the line this case falls. A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.
Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)
This case probably presents the closest analogue to run-of-the-mill fan fiction. A Swedish author wrote an unauthorized sequel to the Catcher in the Rye, called 60 Years Later: Coming Through the Rye, which told the story of what happened to Holden Caulfield decades after the events in the original Salinger novel. The sequel had its own words and plot, but it borrowed the main characters from the original. This case illustrates why a great deal of fan fiction will not qualify for the fair use defense in most courts: A fair use is expected to criticize, analyze or parody the original work. The sequel author here wished to glory in and join the work of Salinger, not to critique it. This distinction caused the Court to find that the sequel was not a fair use.
Suntrust v. Houghton Mifflin, 268 F.3d 1257 (11th Cir. 2001)
We have the notoriously litigious estate of Margaret Mitchell, author of Gone with the Wind, to thank for an excellent lesson about the difference between parody and homage. Mitchell’s estate brought a copyright infringement action against the author and publisher of The Wind Done Gone. Like the Catcher in the Rye sequel, The Wind Done Gone borrowed characters and the semi-fictional universe from Gone with the Wind, and mixed them up into a new story, in which the same events are related through the eyes of one of Scarlett O’Hara’s enslaved women. But here, the Court ruled that it was a fair use. The critical difference was the purpose of The Wind Done Gone, which was to shift the narrative perspective of the original in order to create a savage rebuke of the original’s assumptions about race. This was quintessential fair use.
Compare that with the very different outcome of another lawsuit brought by the Mitchell estate, this one against the producers of a musical stage version of Gone with the Wind called Scarlett Fever. Although Scarlett Fever was different from the original, including because it added jokes and musical numbers, it told the story from the same basic perspective and was a tribute to Mitchell’s work, not a critique of it.
Anderson v. Stallone, 1989 U.S. Dist. LEXIS 11109 (C.D. Cal. 1989)
Say you draft a fan fiction story with the characters from your favorite television show, and then you send it to the producer of the show? If the producer then uses parts of your story without permission, who is infringing whom? In this case, a screenwriter saw the first three Rocky movies and decided to propose a fourth one to Sylvester Stallone, in which Rocky fights an East German boxer in the shadow of the Berlin wall. When Stallone’s Rocky IV included an allegedly similar but not identical iron curtain theme (starring Dolph Lundgren as Russian boxer Ivan Drago), the plaintiff sued. The Court held that the plaintiff’s work was an unauthorized derivative of the original Stallone movies, and thus did not deserve copyright protection. Moreover, the Court found that, even if Stallone had copied elements from the plaintiff’s script to create Rocky IV (and there was no evidence he had done that), most of what Stallone would have been copying consisted of Stallone’s own characters as infringed by the plaintiff. Put another way, you can’t infringe something that infringed you first.
Klinger v. Conan Doyle Estate, 755 F. 3d 496 (7th Cir. 2014)
This case is important because it addresses the issue of older franchises falling into the public domain as the years pass. An author wanted to take Arthur Conan Doyle’s Sherlock Holmes and Watson characters, and place them in new detective stories. Some of Conan Doyle’s Sherlock Holmes stories were pre-1923 and therefore out of copyright. Others were post-1923 and therefore in copyright. So, if only some of the stories with the characters were in the public domain, does that mean the characters themselves were in the public domain? The Court said yes. Of course, this doesn’t mean that less abstract elements of the post-1923 stories can be copied freely (for example, plot points, text or characters that appear only in those later works). However, Sherlock and Watson are free to use.
Castle Rock v. Carol Publishing, 150 F.3d 132 (2d Cir. 1998) and 7. Paramount Pictures v. Carol Publishing, 11 F. Supp.2d 329 (S.D.N.Y. 1998)
Carol Publishing was the defendant in two similar cases in the 1990’s, both involving non-fiction books about fictional television shows. The better-known case is Castle Rock v. Carol Publishing. Carol Publishing created the Seinfeld Aptitude Test, a book of trivia questions based on the Seinfeld series and incorporating quotes, plot elements and character traits. The second case, Paramount v. Carol Publishing, involved the Joy of Trek, a novelty book that used various elements of the Star Trek universe (characters, quotes, etc.) to explain Star Trek to people who were dating Star Trek fans. Both cases ended badly for Carol Publishing. The lesson here is that the mere reorganization of otherwise protectable elements into a new order or format likely will not be considered sufficiently transformative to be fair use.
8 . Warner Brothers v. RDR Books, 575 F.Supp.2d 513 (S.D.N.Y. 2008)
This is probably the most famous lawsuit ever brought by an author against a fan, and it serves as an example of what can happen when fan work starts to become independently profitable. The defendant was a super fan of JK Rowling who created an online guide to the Harry Potter universe, called the Harry Potter Lexicon. The Lexicon was so good that Rowling herself was said to have used it as a reference. However, when the super fan was about to ink a deal for a book version of the Lexicon, things went haywire. The Lexicon book was going to be a Harry Potter encyclopedia, each entry recounting some element of Rowling’s work: dialogue, plot summaries, characters, etc. Was the book or website critical of Rowling? No, so in order to qualify for the fair use defense, he would have to have shown that the rearrangement of all of these fictional elements in encyclopedia format was somehow otherwise transformative. With the Carol Publishing cases already on the books, this was an uphill battle, and the Court found that the Lexicon was not fair use. Moreover, Rowling herself was planning her own Harry Potter encyclopedia, with which the Lexicon would compete for readers, thus having an effect on Rowling’s market for her product. Copyright law will permit fans to do a lot of things, but it wasn’t going to allow a fan to compete with J.K. Rowling in the market for Harry Potter-related derivative works.
Dr. Seuss Enterprises v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997)
The Cat Not In the Hat was a book that retold the story of the OJ Simpson murder trial in the style of Dr. Seuss. A clear parody, right? No, not exactly. The lesson here is that parody gives you a license to borrow from the original thing you are parodying, but it doesn’t give you a license to borrow whatever you want from whoever you want. The Cat Not In the Hat made all kinds of parodic fun of OJ Simpson and the legal system so, when Dr. Seuss sued for copyright infringement, the authors claimed it was fair use. The Court agreed that The Cat Not In the Hat work was a parody, but not a parody of Dr. Seuss! Therefore, copying Dr. Seuss was not fair use. What does this mean for fan fiction? It means that even a parody of one thing can be an infringement of something else. Are you a Star Trek fan that wants to use images of the Starship Enterprise to make a parody of Star Wars? You probably don’t need George Lucas’ permission, but you may need Paramount’s.
Paramount Pictures v. Axanar, Case No. 2:15-cv-09938 (C.D. Cal. 2016)
That leads us back to Axanar, which as you may recall is an ambitious piece of Star Trek fan fiction set during a Klingon war that served as part of the backstory for an episode of the original series. The case is interesting from a copyright perspective for two main reasons. First, Axanar is different than most other fan fiction, even taking into account the relatively sophisticated and unique nature of the Star Trek fan base. When you look at the website, trailer and cast for the film, you realize that Axanar has the potential to look and feel like a seamless continuation of the Star Trek franchise by professional-level actors and filmmakers. Thus Axanar is the rare piece of fan fiction that may constitute a market threat to the real franchise. Second, the universe elements borrowed by Axanar were atypical of fan fiction. Axanar doesn’t really borrow much in terms of character and plot, but it does borrow the Star Trek universe more generally: the Federation, the shape of the ships, uniforms, the Star Fleet logo, fictional alien races, etc. When Paramount filed a copyright infringement suit, Axanar moved to dismiss, claiming that these small elements were not protected by copyright. However, the Court disagreed and held that, even if any particular individual element was not protected by copyright, the accumulation and selection of these elements demonstrated enough copying by Axanar to give rise to a viable claim for copyright infringement. As of this writing, the case is still ongoing (despite what turned out to be premature talk of a voluntary dismissal). Fan fiction authors everywhere – especially the really good ones – should pay attention to the outcome.