Fair Use and Fanfiction (3 OF 4)

The following post is the third of four celebrating Fair Use Week. Check back all week as librarians from the Scott and Gutman libraries bring you stories highlighting the importance of fair use in the lives of students and faculty. Read post 1 and post 2 to catch up on previous fair use articles.

Fair Use and Fanction
By Larissa Gordon, Scholarly Communication Librarian, Scott Memorial Library

The fair use doctrine comes into play every day in the life of university students, allowing them to quote sources in their papers and access educational materials shared by their instructors. Review this infographic from the Association of College and Research Libraries to see how constant a presence fair use is in their lives. However, for many of us, fair use can also be integral to the hobbies that we enjoy after the school day is over.  

Take, for example, the popular fanfiction website Archive of Our Own (A03), which has seen increased traffic due to the pandemic, earning view count numbers in the millions each day. Websites like A03 owe their continued existence to the fair use doctrine. Without this exception to copyright law, fan fiction as an activity and art form would not be possible, as it is based on the characters, stories, and worlds created by commercially published authors. As mentioned in a previous post, US copyright law gives the right to create derivative works exclusively to the authors who created that original work. On the surface, this would seem to make fanfiction a clear violation of the law.  

However, according to many lawyers, such as those associated with the Organization for Transformative Works, the nonprofit organization that runs the AO3 website and offers legal advice and assistance to fanfiction authors, fanfiction is absolutely legal under the fair use doctrine. Fanfiction is fair use as long as the work is “transformative,” meaning that the new author added content with new meaning and value to the original work. The derivative work must also be “noncommercial” in nature, meaning the author does not make any money from their fanfiction. These two ideas line up with two of the four previously mentioned principles of fair use, which look at the “nature” of the work and its effect on the market for the original work.   

Going a bit further, it is also useful to note that copyright law extends to fanfiction authors. These creators own the copyright to the content they added to the original work, just as the commercially published authors continue to own the content they created. This fact helps create a vibrant community where fanfiction authors create derivative works, not just of a commercially published work but also of the work of other fanfiction authors. Without fair use, this activity and the community that supports it would not legally exist. Thank you, fair use!  

Sources and further reading: 

Is Fanfiction Legal? 
The New York University Journal of Intellectual Property and Entertainment Law 

Copyright and Fanfiction: A Primer 
American Library Association, Office for Intellectual Freedom 

How to Keep Fanfiction Legal and Avoid Trouble with Lawyers
SyFy Channel Website 

Fanfiction: Crossing the Line from Infringement to Fair Use 
Loyola University Chicago School of Law Blog

Stay tuned to this blog for the rest of the week, as librarians bring you stories highlighting the importance of fair use in the lives of students and faculty.