Fan-made Content
In today’s technology-driven world, where it is effortless for any individual to become famous or an influencer and have a fanbase of their own, there now exists a new question of law about whether fan-made content will amount to copyright infringement or not. We know that the idea of copyright protection is older as compared to the idea of fandoms and fan creation, which actually came into existence after pop culture became famous in the 80s in the Western world. Fan-made content is actually an umbrella term that consists of various other creations such as drawings, t-shirt designs, posters, jewelry, and other items featuring various popular characters, figures, costumes, or scenery whose copyright is actually owned by someone else.
The fans actually enjoy creating original artwork based on their favorite books, TV Shows, movies, musicians, and musicals.[1] Some famous examples might include TV shows like Friends, musicians like Taylor Swift and BTS (K-POP Band), and favorite books like the Harry Potter series written by famous author JK Rowling. It is frequently shared online with other fans and is usually produced out of love and appreciation for a particular piece of fiction. In addition to exhibiting their artistic abilities, it enables fans to interact with and celebrate the stories and fictitious characters they like. It is frequently produced without the legitimate owner of the original work of fiction’s consent. This might raise legal issues, particularly with regard to copyright regulations.
Copyright Infringement and Fan-made Content
Fans think that the creations that they are producing are entirely original. They have the right over their creation, but technically speaking, the fan-made content does not come under the ambit of original work even though it has the labor and money of fans attached to it; in reality, the fan-made content is a derivative work which means that it derives from copyright work of another owner. In copyright protection, the copyright owner has the exclusive rights to create the derivative works from their own original copyrighted work, and no other person has the right to either create or use that derivative work without the permission of the copyright owner. If anyone does the same, it will lead to infringement of copyright and hence would lead to many legal claims against that person.
Drawing ideas from previously published works and violating someone else’s intellectual property are two very different things. Fan art that unintentionally violates intellectual property rights is not uncommon, and it may be discouraging for both companies that cater to consumers and fans. Even though fan art is frequently seen as a gesture of gratitude, using trademarks can mislead viewers. The risk of violating the rights of the brand owner arises from the possibility that the public would think the artwork is licensed or associated with the business. Therefore, in order to prevent misleading the public, businesses should use caution when publicly displaying unlicensed fan art, and artists should refrain from utilizing another brand’s trademark without authorization.[2]
Fair Use Doctrine
If any derivative work gets classified for fair use, then it is held that particular work does not amount to copyright infringement. In India, the Fair Use doctrine has been incorporated in section 52 of the Copyright Act 1957. Determine whether a derivative work evaluates for fair use depends on a four-factor test and that is:
- ‘The Purpose and character of the use’: The court determines the purpose and character of the fan art, that is, whether fan art was made for personal or non-commercial use, and if the fan art were made for commercial purposes, it would not be considered under the ambit of fair use doctrine. The court also sees how transformative the fan work is, whether it is a copy of the original work or it is actually a tangible addition to the original work. Fan fiction originated as a representation of the global fandom’s love for well-known characters and has since spread to be appreciated and shared by people all over the world. Fan fiction is not meant to be a replacement for the original narrative; rather, it is seen as a side story from the perspective of a copyright holder. Things get nasty, and a fan loses the protection of fair use doctrine when a fanfiction author decides to take advantage of the notoriety his writings have gained and tries to compete and make money off of what was essentially a privilege offered by the original content provider.[3]
- ‘Nature of the copyrighted work’: The court checks the nature of the copyrighted work in question; if the original work on which the fan work is made is fictional, then the protection of fair use weakens because fictional works get strong copyright protection as compared to works based on facts. If a fan’s work is based on facts, then that is likely to be covered under the fair use doctrine. [4]
- ‘The substantiality of the portion used in relation to the copyrighted work as a whole’: The quantity and significance of the copyrighted work that has been included in the fan art are taken into consideration by the court. The likelihood that fan art will be deemed fair use decreases with the amount of copyrighted material incorporated in it. However, this element frequently Favours the quality of the copyrighted work above its quantity. This implies that fan art may still be used to support a claim of copyright infringement, even if it simply features the character in the background or a minimally significant manner.[5]
- ‘The Effect of the Fan work on the potential market of original work’: This element relates to the market’s desire for the original work that served as the inspiration for the fan fiction. Fair use may be used in fan fiction as long as it doesn’t diminish the original work’s commercial appeal. The fan work may be considered a copyright infringement if it is discovered to be in direct competition with the original in terms of actual sales.[6]
For example, Fan fiction is based on a famous book series and if that fan fiction is commercialized and actually hinders the market sales of the original book will amount to copyright infringement. The said fan fiction will not get protection under the fair use doctrine.
Relationship between Fans and Copyright owners
Have you ever wondered why, despite knowing that fan-made content is a derivative work of their own copyrighted work and is an infringement of their copyright, these copyright owners tolerate these fan works? That is because Fans ’derivative works can be beneficial for businesses; thus, drawing too strict a line to safeguard intellectual property could actually make it weaker. A backlash might result from pictures of cease-and-desist letters threatening fan fiction authors with legal action spreading on social media. On the other hand, fans tend to overreact, as demonstrated by Bridgerton.
What’s the connection between After, Fifty Shades of Grey, and City of Bones (Mortal Instruments #1)? Before anything else, all three of those books were fan fiction. Before it started as One Direction fan fiction, Fifty Shades of Grey was initially dubbed Masters of the Universe and included a Draco/Ginny pairing. Meanwhile, City of Bones was a fan fiction set in the Harry Potter universe. The key lesson here is that, despite their roots in copyrighted works, all three of these titles have seen enormous success and popularity and have escaped legal action.[7]
There is a mutually beneficial connection between copyright holders and fans, with many copyright holders even tolerating fan-made content. The majority of fan fiction and fan art actually does little harm to the original work, which is the reason. Because fan-created content is usually identifiable as autonomous and distinct from the original, it complements the original rather than acting as a replacement and a focal point for fans to gather around. Excitement, engagement, and free advertising of the original copyright are all produced by this, and they are all well received.[8]
Some publishers and writers like J.K. Rowling are far more receptive to fan fiction. Others, like Anne Rice and George R. R. Martin, have openly opposed it and believe it to be a misuse of their characters. Without the proper authorizations or licenses, fan fiction and fan art typically violate the copyright holder’s ability to create and grant licenses for derivative works based on the original. Owners of copyrights are able to control the uses of their creations, including the creation of new derivative works based on the original work. Therefore, a corporation may lose money as a result of unlawful and unapproved derivatives.[9]
The relationship that exists between fans and the owner of the copyright is very complicated and, in a sense, symbolic that is because there is a fragile sheet between copyright owners filing an infringement suit against fan work and tolerating the fan work for their benefit. That thin sheet breaks when fans start earning profit out of that derivative work that hinders the market for the original work, or fans start changing the original work to such an extent that it harms the integrity of the original work and the moral rights of the author. For example, For the Harry Potter Lexicon, J.K. Rowling was forced to file a lawsuit against Steven Jan Vander Ark. Rowling tolerated Vander Ark’s persistent efforts to add words to the vocabulary until he attempted to make money off of them.[10]
The Netflix Bridgerton
The story started when two songwriters, Barlow and Bear, also referred to as the “Bridgerton girls,” performed songs that were inspired by Bridgerton on TikTok and amassed millions of views. After that, the two recorded an album with only their songs on it, which was eventually nominated for and won a Grammy. According to Netflix’s complaint, Barlow and Bear asked for a license for the album, which Netflix turned down. It did not, however, “stand in the way” of it. Barlow and Bear then took it a step further. From Netflix’s perspective, too far.[11]
Barlow and Bear notified Netflix that they would be doing the Unofficial Bridgerton Musical at the Kennedy Center, which was based on the album’s songs. They didn’t pose it as a request; they didn’t approach Netflix for approval. The complaint stated that “such exploitation would constitute willful copyright and trademark infringement unless they negotiated a license–which Netflix was eager to do.” In response, Netflix said that the scheduled performances were not approved. Without a license, Barlow and Bear proceeded with the performance. To a sold-out audience, they performed 14 of the album’s 15 tracks. With 1,100 seats, tickets ranged in price from $29 to $149 per seat. Bridgerton trademarks were marketed on items, and VIP packages were offered. Netflix filed a lawsuit, claiming infringement on trademarks and copyright. Netflix eventually dropped the case in late September 2022 after purportedly coming to a (undisclosed) agreement with Barlow and Bear.[12]
Conclusion
When discussing fan-made content and copyright infringement, the copyright owner has a significant say in whether or not infringement has taken place because the artist benefits from the fan-made content. The artist receives the necessary recognition and notoriety for their works, thanks to these fan creations. However, it’s also critical to remember that these copyright holders are only somewhat tolerant of fan works, and their stance on the matter depends on whether or not fans publicly display their fan art, which could hurt the demand for original works. Every book, TV series, musical, and comic book franchise gains a growing following. Being able to express oneself artistically is essential to fan communities. Similarly, it is crucial to comply with the law rather than facing a cease-and-desist order. IP lawyers who are enthusiastic about these issues can effectively guide producers toward a balance between creation, business, and fan content.
[1] Cartee, A. (2023, June 6). ‘Fan Art & and Fair Use: Understanding Copyright Law for Fan Art | Orange County Attorneys | Cartee LC. Cartee LC. https://www.ac-legal.com/fandom-and-fair-use/’.
[2] Khurana, T., & Khurana, T. (2022, April 6). ‘Fanfiction, Fan-Culture, Fan Art, And Copyright Law. Khurana and Khurana. https://www.khuranaandkhurana.com/2022/03/30/fanfiction-fan-culture-fan-art-and-copyright-law/’.
[3] Barooah, S. P. (2015, January 26). ‘Guest Post: The Murky World of Fan Fiction and Copyright. Spicy IP. https://spicyip.com/2015/01/14526.html’.
[4] Cartee, A. (2023, June 6). ‘Fan Art & and Fair Use: Understanding Copyright Law for Fan Art | Orange County Attorneys | Cartee LC. Cartee LC. https://www.ac-legal.com/fandom-and-fair-use/’.
[5] ibid [5]
[6] Barooah, S. P. (2015, January 26). ‘Guest Post: The Murky World of Fan Fiction and Copyright. Spicy IP. https://spicyip.com/2015/01/14526.html’.
[7] Younglawyerssection. (2022, October 31). ‘The Fine Line between Fan Art, Fan Fiction, and Finding Yourself Sued. CBA’s @theBar. https://cbaatthebar.chicagobar.org/2022/11/11/the-fine-line-between-fan-art-fan-fiction-and-finding-yourself-sued/’.
[8] ibid [9]
[9] Younglawyerssection. (2022, October 31). ‘The Fine Line between Fan Art, Fan Fiction, and Finding Yourself Sued. CBA’s @theBar. https://cbaatthebar.chicagobar.org/2022/11/11/the-fine-line-between-fan-art-fan-fiction-and-finding-yourself-sued/’.
[10] Ibid [10]
[11] ‘A Bridge(erton) Too Far: The Fine Line Between Acceptable Fan-Created Content and IP Infringement – Brooks Kushman. (2022, December 8). Brooks Kushman. https://www.brookskushman.com/insights/a-bridgeerton-too-far-the-fine-line-between-acceptable-fan-created-content-and-ip-infringement/’.
[12] ibid [12]
Author: Disha Goyal
Third year Law Student at the Indian Institute of Mangement, Rohtak (IIM-R) with an interest in Copyright Laws
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