Fan Works and the Elusive Border between Derivative and Transformative Uses

Subtitle

A Fanfic Law Retrospective and an Optimistic Look Forward

Document Type

Article

Publication Date

2024

Abstract

When Professor Schwabach began writing about fanfic and other fan works over a decade ago it was a niche topic, mostly of interest to fellow fans. It has since generated dozens of articles and a small but steadily increasing amount of litigation. In addition to several previous articles on the topic, Professor Schwabach has contributed a book (Fan Fiction and Copyright) and some book chapters to this ongoing discourse.

When this subject was new each article had to begin with a lengthy explanation of what fanfic is, why fictional characters are or are not protected by copyright, how parody and fair use are related, and so forth. This article seeks to place a capstone on that early era of fanfic scholarship and move the discourse forward by providing a brief recap of previous work in the field before moving beyond repetition of these points to look at new developments and directions in the field and making some hopeful predictions for the future of fanfic law. 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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