Note: Live Long and Prosper: How the Persistent and Increasing Popularity of Fan Fiction Requires a New Solution in Copyright Law

By Brittany Johnson. Full text here.

For decades, fans have written stories that extend the plotlines of popular films, novels, and television shows in a practice known as fan fiction. But with the advent of the Internet, the popularity of this practice has grown exponentially as these stories are easily posted online and accessible for free. But while fan fiction has grown as a largely noncommercial endeavor, recent developments have cast the practice in a new economic light and significant legal questions have emerged as a result, the most prominent of which asks whether fan fiction infringes on the copyright owner’s exclusive rights over the original work.

This Note attacks this question, analyzing whether the existing fair use defense in copyright law actually applies to fan fiction. As a more comprehensive solution, this Note proposes a licensing scheme that exists on two levels. The first level is between the copyright holder and particular websites that host fan fiction, and includes a compulsory license and a statutory limitation. The second level exists between those same websites and the fan authors themselves, and is enforced against the fan authors through the terms of service of the particular fan fiction website. This solution keeps the actual licensing component between more legally sophisticated entities, while allowing fan authors to interact with fan fiction websites in a similar manner as they do today. This licensing scheme protects both fan authors and copyright owners in a way that allows the practice of fan fiction to continue to grow and flourish.