OTW Supports Fair Use Week

This is Fair Use Week 2015 in the U.S. which takes place from February 23-27. The event is held to raise public awareness of the importance of maintaining their rights when it comes to copyright. Many law schools, the Association of College and Research Libraries, as well as organizations involved in fair use activism are taking part. Some campuses will have live panels, webcasts or other special events and organizations will be releasing their own blog posts as well as contributing to a Fair Use Week Tumblr blog.

We at the OTW talk a lot about how fanworks are legal under U.S. copyright law. The OTW FAQ explains that this is because U.S. copyright law is limited by the doctrine of “fair use,” which protects free expression by giving people the right to use copyrighted material in certain ways without getting permission or paying. But what does “fair use” actually mean, and why does the OTW believe that fanworks are fair use?

Knowing the Facts

Fair use is defined by section 107 of the U.S. Copyright Act. The law provides an exception to the rule that copyright holders have an exclusive right to make and authorize derivative works—that is, works that are based upon their copyrighted works.

The law explains that it may be fair to use copyrighted material for certain uses, such as criticizing or commenting on the original, and provides a list of four factors to consider in determining whether a particular use is allowed: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Courts generally balance all four factors in deciding whether something is fair use–no single factor determines the answer.

The Four Factors

Fanworks generally fit well within these four factors. Here’s how:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

This factor incorporates two important traits of fanworks. First, fanworks are noncommercial—that is, the fans making them aren’t selling them or otherwise making money from them. Although some transformative works are sold (and the media has recently given more attention to the commercialization of fanworks through services like Kindle Worlds), that isn’t what most fanwork creators are looking to do. Most fans want to share their creative work with their fan communities without thinking about commercial gain.

Second, fanworks are transformative. In the case of Campbell v. Acuff-Rose, the U.S. Supreme Court explained that this first factor asks whether the new work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” Transformative uses are favored in the fair use analysis. The Supreme Court explained that transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright,” and “the more transformative the new work,” the more likely it is to be fair. For this reason, courts usually find that when a work is transformative, it is not infringing.

(2) the nature of the copyrighted work.

This factor doesn’t have much to do with fanworks either way. It deals with whether the original work was published rather than secret, and whether the original work was factual rather than fictional. Fair use is more likely to be found when the original work was public and/or factual than when it was unpublished and/or fictional. Since most fanworks are made from published works rather than unpublished or secret ones, this factor generally weighs in favor of fair use, but the fictional nature of many fanworks’ source material weighs in the other direction. Regardless, it is usually not a factor that courts tend to place heavy weight on unless the original copyrighted work was unpublished or factual. As the Supreme Court poetically put it in the Campbell case: the factor “is not…ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.” This is as true for fanworks as it is for parodies.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

How this factor applies will vary widely from fanwork to fanwork, but most fanworks only take parts of the original work, and relatively small parts at that. Fan fiction, for example often just uses characters, settings, or moments from a work, and recasts them into something new. (This factor, by the way, is one reason why the AO3 does not allow reproductions of entire copyrighted works without the consent of the copyright owner.) Sometimes fanworks rely on important parts—key characters or moments in a work—but courts have found fair use even when someone has used a “qualitatively important” part of a work.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This factor focuses on whether the derivative work serves as a market replacement: will people use it instead of buying the original copyrighted work? Here again, fanworks are favored. Not only do they not harm the market for the original—they often help it. Fans tend to spend a lot of money on on the original work and associated merchandise, and encourage others to buy also. They are not competing with the original creator’s work, and if anything help to promote it.

The OTW’s Role

The OTW is committed to advocating for fans and preserving the principle that fanworks are fair use. In 2012, the Copyright Office, relying partly on material that the OTW submitted, cited fan videos as examples of fair use that the law should permit. More recently, the OTW used stories submitted by fans to explain to the U.S. government why any change in copyright law should favor the freedom to make transformative works.

We’re here for you! If you have questions about fair use and fanworks, feel free to contact our legal team.