Not a parody? Then not fair use. Precedent is bad news for argument that fan fiction is legal!

July 2nd, 2009 by Laura Leave a reply »

There have been endless debates in fandom as to the legality of fan fiction.  The general consensus, with some noted exceptions, in the community is that fan fiction is highly derivative and would not be covered under fair use.  Some of the most noted proponents of fair use for fan fiction claim that fan fiction is a form of parody. I’ve generally found this type of rationalization rather ridiculous, as most fanfics are easily perceived to not be parodical in nature. (And you’re never going to convince me that your post episode story is, or that your chan story featuring Harry Potter getting butt sex is a form of parody either.)  We’ve just been rather fortunate in our community that there is no legal precedent in US courts, which say that fan fiction is a copyright violation.  We’ve also been fortunate that copyright holders have largely managed to ignore fan fiction or saw ways that they could fit fan fiction into their business plan.  In the past several years, there have been almost no cease and desist letters and DMCA takedown notices for fan fiction.

But it looks like we have finally come close to having that precedent that everyone should be concerned about. By concerned , I mean they need to be concerned about keeping fan fiction out of the courts if this holds up on appeal.  Why?  This court case shows that we could damned well lose.

There was a court case in the United States.  It involved an unauthorized sequel to a work by J.D. Salinger.  The court wrote the following:

To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.

Or as Ashby Jones at the Wall Street Jones said, “did not fit into the fair use exception in copyright law because the book did not constitute a critical parody that “transformed” the original.” This sort of ruling doesn’t help the case for the legality of fan fiction.  The court saw through the same sort of bullshit rationalizations for the legality of of this work that fan fiction writers have made.

Will this change the situation in the fan community at all?  No, it won’t.  What it hopefully will do is quiet those voices who claim that fan fiction is transformative, not derivative.  that rational may end up doing more harm than good.

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