I have copied a section of this because I feel that it provides a very interesting overview of the legal a situation as regards fanfiction , ( at least in the USA). It raises in my mind the impact that the invitation to respond to the authors creative out put which sits at the heart of to transmedial narrative impacts on the tests for infringement as out lined below. Part of that test would seem to be the detrimental effect that the infringing work has on the commercial success of the original work. WIthin the transmedial setting the impact is not detrimental , at best it may be seen as an integral part of the finished work , and at worst I would suggest it can be  seen as supporting the commercial strength of the franchise.

http://www.teleread.com/copy-right/fan-fiction-plagiarism-and-copyright-by-jane-litte/More on Derivative/Transformative Works

Fan Fiction, Plagiarism, and Copyright, by Jane Litte

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March 19, 2012 | 8:20 am

In most cases, the closer the derivative work is to the original, the more likely it is copyright infringement. Many fan fiction and youtube creations contain a disclaimer that infringement is not intended. However, copyright infringement does not depend upon intent. George Harrison was sued for his 1969 song “My Sweet Lord.” In 1971, Bright Tunes filed a copyright infringement lawsuit alleging that it had been a copy of “He’s So Fine.” During testimony in the trial, Harrison said that he wasn’t thinking of “He’s So Fine” when he wrote the song. During the trial, the songs were compared, word for word, note for note, and the jury found Harrison guilty of infringement and was ordered for over $1.6 million in damages.

In the 1994 case of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), 2 Live Crew was sued for a parody of the Roy Orbison sung song “Pretty Woman.” The Acuff Rose case turns solely on a finding that 2 Live Crew’s song was a parody but it’s instructive because it sets out some of the elements in measuring fair use protection of derivative works. In evaluating whether derivative works are infringing, the methodology employed should be as follows:

Look to the nature and objects of the selections made, the quantity and value of the materials sued, and the degree in which the use may prejudice the sale, or diminish the profits or supersede the objects, of the original work.

Id. at 576.

If the work fulfills the test set forth, it is no longer derivative. Instead it is transformative or has become an original new work itself.  “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id. at 579.  Parody is considered transformative. “Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. “ Id. at 580.

The first element of the methodology is looking at whether the work is looking at the nature and objects that were utilized in the secondary work.   When the secondary work does not critically examine the original work, the other factors become more important. “If, on the contrary, the commentary has no critical bearing on the substance or styel of the original compisition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work dimisnishes accordingly (if it I does not vasnih), and other factors, like the extent of its commerciality, loom longer.” Id. at 581-82.

The value of the materials used is less important when comparing works of fiction against each other. Althought, if comparing a short work of fiction against a longer work of fiction, this can mitigate against infringement.

The third factor refers to the quantity and value of the material uses. In other words, how much of the source material and of what important is the source material before it is infringing. In looking at 50 Shades, the characters of the Twilight series are very important whereas I would argue that the settings are less important. I.e., the Twilight series takes place primarily in Forks, Washington and the 50 Shades is also set in Washington. What makes it curiouser, however, is that Bella and Edward honeymoon in a remote paradise island and, alas, so do Ana and Christian. In Twilight, the paranormal aspects of the story are quite important and in 50 Shades, those elements are replaced with dark sexual desires. Possibly replacing a core element of the Twilight series is sufficiently different.

Finally, is the issue of commercialism. The court acknowledges that a good parody can essentially kill the market for the original however “the role of the courts is to disginuish between biting criticism [that merely] suppresses demand [and] copyright infringement,[, which] usurps it.” Id. at 592.

The aforementioned methodology, however, is a fair use defense for a derivative work.  James et al could argue that her work is not derivative but original (although given MOTUs existence this is an incredibly difficult argument to make). If the work is not derivative, then the measurement is whether the other work is infringing based on the substantial similarity standard (which is tested by a number of different concepts such as abstractions test, total concept and feel, pattern, subtractive, ”extrinsic/intrinsic”, among others).

Post Acuff Rose Cases

Two post Acuff cases of interest deal with non fiction works:

Castle Rock Entertainment Inc v. Carol Publishing Group

Castle Rock, the copyright owner of Seinfeld, sued Carol Publishing over a non fiction trivia book published about the events and characters in Seinfeld. Castle Rock Entertainment Inc v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998)  There was no parody defense here. Instead, the non fiction trivia book was said to inappropriately copy creative expression rather than facts.  In other words, the Senfield characters and their words were creative expression unlike the number of at bats a baseball player may have or the number of times it has rained in September in California for the past twenty years.

Harry Potter Lexicon case (Warner Bros. Entertainment, Inc. v. RDR Books)

J.K. Rowling sued to prevent the publication of the Harry Potter Lexicon.  This was a work based on a website that was run by the Lexicon author with the stated approval of JK Rowling herself.  Rowling argued in her complaint, however, that  “[T]here is a big difference between the innumerable Harry Potter fan sites’ latitude to discuss the Harry Potter Works in the context of free, ephemeral websites and unilaterally repackaging those sites for sale in an effort to cash in monetarily on Ms. Rowling’s creative works in contravention of her wishes and rights.” Complaint, Warner Bros. Entertainment, Inc. v. RDR Books, (No. 07 Civ 9667), ¶ 4.  In issuing the injunction in support of Rowling, the court found that the work was not derivative, but contained too much copying of Rowling’s material to be considered fair use.  In employing the methodology in the Acuff Rose case, the judge determined that the balance of factors weighed in Rowling’s favor.  In December 2008, a rewritten version was published by RDR Books.

Fanfiction and Commercialism

Professor Rebecca Tushnet who will be on hand to answer questions later this week, argues that fan fiction is not infringement because there is no commercial aspect to fan fiction. It is written and distributed freely without renumeration. In Let Everyone Play: An Educational Perspective on Why Fan Fiction Is, or Should Be, Legal, the authors argue that a footnote in Suntrust Bank v. Houghton Mifflin (268 F.3d 1257 (11th Cir. 2001)), suggests that not for profit writing mitigates against finding fan fiction infringing:

Of great importance with respect to fan fiction is footnote 24 attached to that statement: “Randall did not choose to publish her work of fiction on the internet free to all the world to read; rather, she chose a method of publication designed to generate economic profit” (Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1269 (2001)).

Disclaimers v. Cease and Desist Letters

Like the ineffectiveness of copyright disclaimers by fan fiction writers so to are many of the cease and desist letters/emails/blog posts written by authors lacking in legal support.  Merely because the original creator doesn’t like slash fiction or AU fiction that is loosely based on their work doesn’t mean that the fan fiction work is infringing. In other words, the author of the original work does not decide what is infringing. C&D letters are not legal determinations of wrongdoing either. Often C&D letters are used simply to scare someone into taking an action that the author of the C&D letter desires.  A C&D letter should not be ignored, but whether a work is copyright infringement depends on the actual text of the secondary work.

Conclusion

From a purely intellectual standpoint, a case involving 50 Shades and Twilight would be fascinating. 50 Shades was fan fiction. It was written by an author who gives her direct source of inspiration to a copyrighted work. It has dozens of similarities with the original, particularly the emotional arcs of the characters and the characters’ traits, but it also deviates in major ways. It speaks to the issue of copyright of characters, rights of publicity of the actors like Pattison and Stewart, and the scope of transformative works. While the case would likely go to trial where a jury would decide it, the mere fact that a case like this makes it past the motion point would provide good precedent. It could clarify the legal bounds of fan fiction and identify more clearly the issue of derivative works.

(Of interest and not covered  here is to what extent James has protection over her unregistered work, Masters of the Universe.  While copyright exists for any fixed expression of an idea, it is not entitled to statutory damages until the work is registered even though under Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010), the Supreme Court ruled that registration is not a jurisdictional prerequisite to filing an infringement suit, but it does prevent the damages to which an unregistered work may be entitled.  It might not even be possible for James to register her work because it lacks originality without the unchanged names, locations, and the like. It might also limit the claims of piracy she could make against the freely shared MOTU)..