Fanfiction Law on LexisNexis, Part 1: LexisNexis Search for 'fanfiction'

[alexseanchai]

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Search Terms:(LN-HEADNOTES(fanfiction) OR CORE-TERMS(fanfiction))
Source:US Supreme Court & Courts of Appeals Cases, Com...

I tried "fan fiction", too. Nada. If anyone thinks any of the abbreviations of the term would seriously be used in a legal case, I can try them, but they'll all come up empty, I guarantee it.

This means that US law as it applies specifically to fanfiction is nonexistent. No one in the US has sued over fanfiction. Ever. Not a single author. Not even the fan who wanted a byline on a Marion Zimmer Bradley novel. Or any suits that have happened have settled out of court where they cannot shape the common law.

I am not a lawyer, but this tells me that, whatever the de jure status of fanfiction is, it is de facto legal.

'Transformative work' got sixteen hits, and I intend to read them all and case-brief all the ones sound relevant, as well as hitting up everything Stanford Law says about fair use. (Why do my own research when they've done so much of it for me?) Keep an eye on my 'copyright law' tag today and tomorrow.

Comments

[rthstewart]

Yep. I periodically take a look at this and as far as I know, the status of true fan fiction/fanfiction (original fiction story based upon someone's else's protected work) has never been litigated. If memory is correct, there is at least one current or former OTW board member who is a law professor at Georgetown and she blogs about this, so you can check out their journals to see if they have anything. Rebecca Tushet? Something like that and I could be wrong.

In the law reviews, you'll find discussion and maybe reference to C&Ds which wouldn't show up on a Lexis search, of course.

Fascinating stuff. What has always intrigued me since fic started appearing on the web in early 90s is whether here is an acquiescence or waiver article. That in failing to object to it, they've lost a right to object to it. Or whether it really is fair use under the copyright laws. I don't know.

[alexseanchai]

I shall check out Rebecca Tushnet's blog, but I do prefer primary sources. Which, conveniently, I'm a paralegal student! I have access to the primary sources!

Or whether it really is fair use under the copyright laws. I don't know.

That's what I'm trying to find out.

[melannen]

>>the status of true fan fiction/fanfiction (original fiction story based upon someone's else's protected work) has never been litigated.

There have been several cases regarding stories like this that were professionally published by major publishers (with extremely mixed results, but generally pro-transformativity) however, yeah, afaik, there has never been a litigated case regarding a noncommercial fanfic.

[alexseanchai]

By any chance do you have cites, or should I assume all such cases are in the 'transformative work' search results on Lexis?

[melannen]

No proper legal-style citations, but I listed the major fair use/transformative works cases as of two years ago in my copyright overview for fans from last con.txt : the novel-related ones are Suntrust vs. Houghton Mifflin and Salinger et. al. vs. John Doe et al (which was still in appeals last I managed to find any news on it, and like the Harry Potter lexicon case, suffers somewhat from the plaintiffs being skeevy in other ways.)

There might be a few others that didn't get noticed enough for me to hear about them (I, sadly, don't have Lexis Nexus access) and I know there are a few more were suits were filed but settled out of court, like Lo's Diary. (AFAIK, none of the cases regarding non-commercial fanfic have even gone as far as suits being filed, or anything beyond C&Ds, takedown notices, and other nasty letters.)

[alexseanchai]

Thank you!

[rthstewart]

I was a bit garbled, but yes, precisely, I'm speaking of the fan fic, derivative work that is all over ff.net, AO3, LJ, DW, and elsewhere with no attempt to publish and sell it. Back in the first days of fan-created websites, everyone was running scared from the C&Ds which, I believe, always targeted media content like vids, or faked screenplays. Those sites would often have a fan fic component and it all would come down. So, we were never sure what the real problem was.

Anecdotaly, I'd heard that Lucasfilm/20C Fox had gone after a sexually explicit fanzine with a C&D in the 80s. This has always made my eyes cross (fan fic OK but only if not [insert qualifier]). It doesn't work that way in the States I think. Our legal system takes a very dim view of content-based censorship.

I was always surprised in those early years of how ignorant the content owners were of fan communities and their creative output. I'd assumed they had fleets of lawyers in New York and LA combing the Internet for objectionable material, knew all about it and monitored it. Nope.

errr, tl;dr. When I first learned of fic in about 1994, the first thing I did was try to find any cases and was shocked that there weren't any, even against the zines. At that point I found only one scholarly article which posited that older women in service professions (nurses, teachers) were most likely to write slash. oh how times change.