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April 4: Fan Fiction as Fair Use

Guest - Raven Lanier Links to an external site.

 

Rebecca Tushnet Links to an external site. is the Frank Stanton Professor of the First Amendment at Harvard Law School and the leading legal scholar on the topic of copyright law and fan fiction.  In 1997, while Tushnet was still a law student, she published an influential article, Legal Fictions:  Copyright, Fan Fiction, and a New Common Law, 17 Loy. L.A. Ent. L.J. 651 (1997), making the  then-novel argument that most fan fiction should be considered to be fair use under section 107. Tushnet has returned to this topic repeatedly over the past 26 years.  Please read edited excerpts from two of Tushnet's articles:

 

 

In 2007, Prof. Tushnet, award-winning SF author Naomi Novik Links to an external site., and literature scholar Francesca Coppa Links to an external site. cofounded a non-profit organization, the Organization for Transformative Works Links to an external site. [OTW], which seeks to preserve fan works and to persuade the world that fan works are both legitimate and lawful.  The OTW  website explains Links to an external site.:

We envision a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity. We are proactive and innovative in protecting and defending our work from commercial exploitation and legal challenge. We preserve our fannish economy, values, and creative expression by protecting and nurturing our fellow fans, our work, our commentary, our history, and our identity while providing the broadest possible access to fannish activity for all fans.

OTW operates an archive of fan fiction, Archive of Our Own Links to an external site. (which won a Hugo award for best related work in 2019).   It publishes a peer-reviewed scholarly journal, Transformative Works and Cultures, Links to an external site. featuring scholarship on fan works and fan practices.  Most importantly for our purposes, OTW engages in legal advocacy Links to an external site. on behalf of fan works. OTW's testimony and filings Links to an external site. persuaded the Register of Copyrights in 2010 that much fan vidding was fair use, and that vidders should receive an exemption from the prohibition on circumvention Links to an external site. in order to bypass technical protection measures on DVDs to allow them to  extract scenes to incorporate into noncommercial videos. OTW regularly submits amicus curiae briefs Links to an external site. in fair use cases, and Professor Tushnet testified to the Senate Judiciary Committee Links to an external site. about the OTW's experience with DMCA notice and takedown in 2020.

 

Please read the following edited cases: