We here at the OTW talk a lot about how most fanworks are legal under copyright law, but we know that most people find copyright law a little bit mysterious. One reason for that is that the answer to most legal questions is “maybe.” This is particularly true for questions about the copyright doctrines of fair use and fair dealing, which are the doctrines that make (most) fanworks legal as a matter of copyright law.
So to celebrate Fair Use/Fair Dealing Week, we wanted to provide some answers to one of the questions we get most often: Why are Fanworks (Usually) Fair Use?
U.S. (and several other countries’) 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. The doctrine of “fair dealing” does the same thing in Canada, the UK, and a number of other countries. Courts in the U.S. have held that fair use is “not merely excused by the law, it is wholly authorized by the law.”
The U.S. Copyright Act provides that certain kinds of uses of copyrighted material are fair use, and therefore are not infringing. The law provides examples of the kinds of uses that are likely to be allowed -— such as criticizing or commenting on the underlying work. The law also provides a list of factors to consider in determining whether a particular use is allowed:
- 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.
Courts generally balance all four factors in deciding whether something is fair use — no single factor determines the answer.
The Fair Use Factors
Most fanworks are fair use because most fanworks 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 favors the kinds of noncommercial, transformative fanworks at the heart of the OTW and AO3’s mission. Although some fanworks are sold, most fanwork creators want to share their creative work without thinking about commercial gain. Commercialized fanworks may still qualify as fair use — commerciality is only one of the factors that courts consider, and most fair use cases have been about commercial works — but noncommercial uses are particularly favored.
Second, fanworks transform the meaning or message of the underlying work. In the case of Campbell v. Acuff-Rose, the U.S. Supreme Court explained that a use is “transformative” when it “adds something new, with a further purpose or different character, altering the [underlying work] with new expression, meaning or message.” 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 or not made available to the public, and whether the original work was factual rather than fictional. Since most fanworks are made from published works rather than unpublished or secret ones, the third 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 secret.
(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 only take parts of the original work, and relatively small parts at that. For example, fan fiction 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 whole or substantially-whole copyrighted works without the consent of the copyright owner.) Even when someone uses a “qualitatively important” part of a work, it can still be fair use.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This factor asks whether people would buy the derivative work instead of buying the original copyrighted work or some other work the copyright owner would be likely to make or authorize. Here again, fanworks are favored. This is especially true of fanworks that criticize, comment on, or otherwise transform the meaning of the underlying work in ways the copyright holder would not do or want. Often, copyright holders want people to celebrate works “as they are,” but fans want to make those works do or say something new and different. These kinds of transformations do not serve as market substitutes for the underlying work — in fact, they often help it. Fans tend to spend a lot of money on the original work and associated merchandise, and encourage others to buy also. If anything, they help promote the original creator’s work.
What About Fair Dealing?
Fair dealing laws, which govern in Canada, the UK, and several other countries, are similar but not quite the same as fair use laws. Fair dealing laws provide specific categories of works that are allowed under certain circumstances. In Canada, for example, those categories include parody and satire. They also include criticism, review, and news reporting if the maker attributes their sources. And they include non-commercial user-generated content if the maker attributes their sources and the new work does not act as a market substitute for the underlying work. So just as most fanworks are the sorts of work that fair use permits, most fanworks fall into fair dealing categories.
The OTW Is Here To Help
The OTW is committed to advocating for fans and preserving the principle that fanworks are fair use. You can find out more about our work on the OTW’s legal advocacy page.
We’re here for you! If you have questions about fair use and fanworks, feel free to contact our legal team.