INTRODUCTION
The Internet has evolved to become a haven for various content creators, writers and artists. The vast amount and variety of content generated and shared every day has been steadily increasing, creating a regulatory issue.
Fanfiction can be referred to as the derivative written content produced by the fans of particular movies, TV shows, books, etc. for non-commercial purposes and is productive[1] as well as transformative[2]. It has been understood over the years that fanfiction does not have a legal definition in any law, creating a difficult position for it to classify and defend in a court of law. The term has been constantly evolving and changing its character to adopt varieties. Currently, it is majorly as ‘internet fanfiction’ due to an amplified use of internet-based platforms for publishing purposes.[3]
The origins of the word ‘fanfiction’ have been traced to the early late 19th and early 20th century. It has been linked to crude and non-professional sci-fi authors. There are online forums[4] and websites dedicated to such work. A simple search of the word ‘fanfiction’ generates more than 150 million results.
This blog analyses the stance on the legality of fanfiction in the US and India, while also discussing if it infringes copyright laws as well.
ANALYSING COPYRIGHT ISSUES IN THE US AND INDIA
Copyright laws hold importance in published and unpublished works of art, literature, books, movies, music, etc. It ensures that there is no unjust, illegal, and unauthorised reproduction of their work. If a work infringes copyright law, it needs to fulfil conclusive criteria to ascertain if there is an actual infringement or not. These criteria should be based on the originality of the work, the creative process involved, and ethical as well as moral concerns for the original author or creator.
The US has two mainstream tests to understand copyright protection for fictional characters, i.e., the ‘Character Delineation Test’ was laid down in Nicholas v. Universal,[5] and the ‘Story Being Told Test’ was laid down in the Warner Bros. Pictures v. Columbia Broadcasting System.[6] Similarly in India, in the case of Raja Pocket Books v. Radha Pocket Books,[7] the court comparatively analysed the infringement factors between the two comic book characters named ‘Nagesh’ as being deceptively similar to ‘Nagraj’.
The Character Delineation test lays down a three-step process to determine a fictional character’s authority to defend in case of a copyright, which is (a) physical and conceptual qualities, (b) delineation from each other, and (c) unique elements of expression. Furthermore, it has been observed that The Indian Copyright Act of 1957 does not cover the term ‘fictional character’ in any explicit capacity. However, Section 13 lays down that “only original literary, artistic, dramatic, and musical works are the subject-matter of copyright.”[8]
But it was the Story Being Told test that gave clarity to understand if a character can be copyrighted or not, considering the premise of if it is a prominent character for the story. This can be understood through a simple example, in the case of the Harry Potter series, it is Harry Potter, Ron Weasley and Hermione Granger among others make up the list of prominent characters in that whole series, yet if a fanfiction author decides to use characters like Blaise Zabini or Irma Pince from that series, they can do it as they do not constitute a prominent personality under this test.
Fanfiction authors in the USA often claim their work to be protected under the ‘Doctrine of Fair Use’ as it is a derivative work, and that legally they can utilise the elements of copyright works. The doctrine was laid down in the case of Folsom v. Marsh[9], where Justice Story laid down the four-factor test, i.e., “In short, we must often… look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”[10] These factors were also referenced by the Delhi High Court,[11] to cite the difference between the concepts of ‘originality’ and ‘fair use’, and later held that works produced by the defendant were eligible for copyright protection under the fair-use rule as they were transformative.
Under the US copyright law, fanfiction can be either a derivative work as defined under Section 17 or it can be a transformative[12] work as alluded to in the case of Campbell v. Acuff-Rose Music. The case discussed the meaning of transformative work, i.e., if there was any new element, expression and value added to the existing work, would be considered detrimental for when it should be considered under the fair use doctrine. Though, for legal purposes, fanfics are often classified as derivative.
Similarly, under the Indian Copyright Act of 1972, there is the ‘Doctrine of Fair Dealing’[13], which distinguishes between authentic work and a blatant copy.[14] It is to be understood, that this doctrine is narrow and provides an exhaustive list of scope, deeming anything outside of the scope as an act of blatant copyright infringement, whereas the US counterpart is more open-ended to interpretation with a broad area of inclusion. Furthermore, the Supreme Court of India in the instance of Eastern Book Company v. D.B. Modak, laid down the ‘Doctrine of Modicum of Creativity’ as follows in the US.[15] The doctrine sets forth a requirement of a ‘minimum amount of creativity’ to be present in the work to be protected under the copyright law.
Recently, in 2023 Demetrious Polychron (a fanfiction writer) was embroiled in a copyright controversy. He wrote ‘The Fellowship of the King’ claiming it to be a perfect sequel to the famous Lord of the Ring series. The attorney for the Tolkien Estate claimed it to be a ‘serious infringement of the Lord of the Rings copyright’ as the work was being commercially advertised and sold both online and offline. The judge ruled in favour of the Estate and awarded $134,000 as well as asked for both physical and online copies of the fanfiction permanently destroyed by Demetrious.[16] Therefore, this suggests that making money off of fanfiction is illegal. However, in creative works, after a certain period (in India after 60 years) the copyright if not renewed expires, putting the work in the ‘public domain’. When the work is available in the public domain, it is not owned by anyone but a few elements of it can be separately copyrighted. Therefore, if a public domain work is used for fanfiction reference, it would be good to research and only use the elements that are not under copyright protection, otherwise the fanfiction author might be sued for copyright violation.
Therefore, it is to be kept in mind, that multiple factors affect the legality of fanfiction in both countries. Though, it is not granted a separate legal status due to its derivative and transformative nature, it is still recognised to be a different and original work in its own right.
LONG-TERM REPERCUSSIONS – PROS AND CONS
Fanfics can be seen as an entry point for readers, giving them the incentive to take up reading through short stories about characters from their beloved fandoms.[17] This can boost creativity[18], while also experiencing familiarity through the characters but in a different story. Additionally, it has been observed in the cases of famous bands like One Direction and BTS, as well as book, comic and manga series such as Twilight, Harry Potter, Avengers, My Hero Academia, and Bleach, etc. the number of fanfictions is directly proportional to the original work or character or person’s rise in popularity.[19] Hence it can be seen as a free and effective marketing strategy.
However, some authors or creators may feel threatened by fanfiction due to its non-commercial nature, easy accessibility, and loyal audience. They fear such allegiance to similar stories might lead to a lack of interest in the original characters or stories, directly impacting the author’s revenue[20] as well as the worth of their original work.
CONCLUSION
To conclude, it can be understood that both the US and India have an understanding of the rising popularity of fanfics and the slew of legal and intellectual property issues surrounding it. The copyright laws in the US have advanced to incorporate instances and developed tests to protect actively against fanfictions and potential infringements. The Indian copyright laws need to broaden their definitions to include newer challenges.
Supporting creativity in all forms is important, but protecting the original authors and their work from being misused or infringed under the relevant intellectual property laws. There have been instances where certain authors have supported fanfiction such as J.K. Rowling (Harry Potter Series), and Naomi Novik[21] (Temeraire Books and the founder of AO3 Portal). But, George R.R. Martin, has vehemently refused to acknowledge fanfiction writing and called it “a lazy way out”.[22]
Author(s) Name: Radhika Subhash Tapkir (Army Institute of Law, Mohali)
Reference(s):
[1] Sony Corp. v. Universal City Studios, Inc. [1984] 464 U.S. 417
[2] Campbell v. Acuff-Rose Music, Inc. [1994] 510 U.S. 569
[3] Christina Z. Ranon, ‘Honor among Thieves: Copyright Infringement in Internet Fandom’ (Vanderbilt Journal of Entertainment and Technology Law, 2006) 8(2) 421-426
[4] Archive of Our Own (AO3) <https://archiveofourown.org/> accessed on 21 March 2024
[5] Nicholas v. Universal Pictures Corp., 45 F.2d 119
[6] Warner Bros. Pictures v. Columbia Broadcasting System
[7] Raja Pocket Books v. Radha Pocket Books [1997] 17 PTC 84 (High Court of Delhi)
[8] The Indian Copyright Act 1957, s 13
[9] Folsom v. Marsh [1841] 9. F. Cas. 342 (C.C.D. Mass.)
[10] The Copyright Act of 1976, 17 U.S.C., s 107
[11] The Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House and Ors. [2008] IA 9823/2005, 51/2006, 647/2006 in CS(OS) 1656/2005
[12] Campbell v. Acuff-Rose Music, Inc. [1994] 510 U.S. 569
[13] Indian Copyright Act 1972, s 52(1a)
[14] Civic Chandran and Ors.v. C. Ammini Amma and Ors. [1996] PTC 670 (Kerala High Court) 657-677
[15] Eastern Book Company v. D.B. Modak [2008] (36) PTC 1 SC
[16] ‘Lord of the Rings’ fan fiction writer faces copyright lawsuit: Here’s why’ (The Economic Times, 22 December 2023) <https://economictimes.indiatimes.com/news/international/us/lord-of-the-rings-fan-fiction-writer-faces-copyright-lawsuit-heres-why/articleshow/106191543.cms?from=mdr> accessed on 17 March 2024
[17] Bulbul Dhawan, ‘New form of reading among young adults: A compelling case for fanfics’(Financial Express Leisure, 17 February 2021) <https://www.financialexpress.com/lifestyle/new-form-of-reading-among-young-adults-a-compelling-case-for-fanfictions/2195149/> accessed on 18 March 2024
[18] ‘The Benefits of Reading Fanfiction for Students’ Writing Skills’ (The Baltic Times, 11 April 2023) <https://www.baltictimes.com/the_benefits_of_reading_fanfiction_for_students__writing_skills/> accessed on 19 March 2024
[19] Rebecca Tushnet, ‘Legal Fiction: Copyright, Fan Fiction, and a New Common Law’ (1997) 17 Loy. L.A. Ent. L.J. 651 <https://scholarship.law.georgetown.edu/facpub/1917> accessed on 18 March 2024
[20] Piper Keel, ‘Fan-use and Fair-Fiction: How Does The Growth And Rise Of Fanfiction Effect Its Relationship With The Fair Use Defence?’ (Anu Jolt, 14 October, 2022) <https://anujolt.org/post/1728-fan-use-and-fair-fiction-how-does-the-growth-and-rise-of-fanfiction-effect-its-relationship-with-the-fair-use-defence> accessed on 21 March 2024
[21] Mikaella Clements, ‘From Star Trek to Fifty Shades: how fanfiction went mainstream’ (The Guardian, 8 August 2018) <https://www.theguardian.com/books/2018/aug/08/fanfiction-fifty-shades-star-trek-harry-potter> accessed on 21 March 2024
[22] Natalie Bochenski, ‘George R.R. Martin: Hands off my characters’ ( The Sydney Morning Herald, 8 November 2013) <https://www.smh.com.au/entertainment/books/george-rr-martin-hands-off-my-characters-20131108-2x6fb.html> accessed on 21 March 2024
