If you're a fan of Harry Potter, Star Trek, Supernatural and the like, you've probably in your internet wanderings found unofficial pictures and stories of your favourite characters. Maybe you've even created some yourself. If you have, you're far from alone because out there in cyberspace are millions of fans doing exactly the same thing.
Fan-works – broadly characterised as fan-videos, fan-art, and fan-fiction, don't make any money. They're not meant to. Rather, fan-works are derivative works created by fans simply out of passion and enthusiasm for an original work and usually aren't intended for any audience beyond the circle of fellow fans. The internet, of course, means that the circle of fellow fans can be quite large and extend all around the world. It also means that the chances of artists and copyright owners discovering such fan-works are much higher. Although some may be flattered at the idea that there are people who appreciate their work to such an extent, others may be less so.
Perhaps obviously, the first thing that comes to mind is copyright infringement. Copyright gives copyright owners exclusive rights including the right to reproduce the work in material form, to communicate the work and to adapt it. It will protect the expression of the work but not the concepts or ideas. This means that while it's perfectly acceptable to write a story about a character who gets caught up in a galactic civil war, the story about a character who rescues a princess, moves objects with his mind, has a laser sword and is closely related to his worst enemy in that galactic civil war might have George Lucas considering a Force-choke.
The test for copyright infringement is whether a substantial part of the work has been used. It is important to realise that there is no hard figure for 'substantial part' like 51% and the question of what is 'substantial' is a matter of quality. Fan-works by their very nature not only use somebody else's work but use its main elements from character histories and relationships to plot points.
The Australian Copyright Act 1968 sets out circumstances of 'fair dealing' where copyright isn't considered infringed such as parody and satire. 'Fair dealing' is different and a lot narrower than the American 'fair use' defence which is often brought up in fan community discussions over fan-works. It is unclear whether fair dealing would extend to fan-works but given the short list of fair dealing purposes – research or study, criticism or review, parody or satire, and reporting news – most fan-works are unlikely to be excused from copyright infringement.
Realistically, though, the chances of copyright infringement claim being made over a fan-work, particularly one that is obviously created out of sheer enthusiasm and not commercially, are rather low. Many copyright owners, particularly big ones like film studios, tend to tolerate or turn a blind eye to fan-works in the understanding that there's not much harm in creative fan-activity and is probably beneficial in terms of encouraging their market. However, this tolerance would quickly disappear if a fan-work looks to become commercialised, something that seen last year in the United States over the unauthorised 'Harry Potter Lexicon'. This Lexicon, described as an encyclopaedia for Harry Potter fans, had existed for years as a fan-website in full knowledge of film studio Warner Bros. and author J.K. Rowling who had even used it themselves, but when it became known that the website was going to be turned into a book and commercially published Warner Bros. and J.K. Rowling immediately drew the line. Legal action was quickly launched and after a well-publicised court hearing, publication of the book was successfully stopped.
It is also necessary with fan-works to consider the moral rights which are personable to the original artist. Moral rights exist from the moment copyright arises, and last for the duration of the copyright period which in most cases is the life of the artist plus 70 years whereupon they can be exercised by the artist's estate. Unlike copyright, moral rights cannot be assigned to another person meaning they cannot be sold – if an artist assigns copyright in a work to someone else such as a commissioning client, the artist will still have their moral rights.
Australian copyright law recognises three moral rights. The first is the right of attribution which requires that when the work is published the artist must be reasonably identified in some way. The flip-side to this is the second right against false attribution in that someone else cannot claim to have created the work. Finally, the third moral right is that of integrity which means that artists have a right not to have their work treated in a way that is derogatory or prejudices their honour or reputation.
So far, there have been very few court cases involving moral rights. When moral rights have arisen in court it is usually in the context of a copyright action. This was seen in the 2006 matter of Meskenas v ACP Publishing, which ART+law examined in December that year. Mr Meskenas is an award-winning artist who painted two portraits of renowned heart surgeon Victor Chang. A photograph of one of these portraits was printed by the Woman's Day magazine which in captioning the photograph wrongly attributed the portrait to someone else. Although Mr. Meskenas pleaded copyright infringement the court found that Dr. Chang had commissioned the work by performing heart surgery. This meant that Dr. Chang was the copyright owner and not Mr. Meskenas, and Mr. Meskenas could not seek remedies for copyright infringement. The court did, however, find that as the artist of the work Mr. Meskenas had moral rights and these had been breached by the magazine.
The Meskenas case shows that where copyright law fails, artists can still have an action in moral rights. This gives rise to the possibility where even if a fan-work is excused by fair dealing or some other defence, an author or artist could still press legal action by claiming the fan-work breaches their moral rights.
Generally, fan-works make no claim of authorship over the original work. Actually, it is customary to include with a fan-work a disclaimer that acknowledges the original artist or author (and also usually pleads not to be sued!) which respects the moral rights of attribution. However, because fan-works often re-imagine, re-interpret, or even re-invent the source material there is potentially a breach of the moral right of integrity.
Many artists and authors don't like to see their work used in ways they never intended or are completely contrary to their vision, but some may have very differing attitudes to the idea. For example, J.K. Rowling has said that she finds genuine fan-fiction flattering but is alarmed at pornographic stories about her characters, and has sent cease-and-desist letters to websites that publish sexually explicit Harry Potter fan-fiction. At the other end of the scale are authors like Anne Rice of the Vampire Chronicles who is opposed to any and all fan-fiction and has been known to send cease-and-desist letters to individual fan-authors.
The Copyright Act does say that the moral right of integrity would not be breached if the derogatory treatment was 'reasonable'. What constitutes reasonable is unclear, but it will take into account the purpose or manner in which the work was used, and if the work has two or more authors their views about the treatment. If you, as a fan, are passionate enough about a work to create material based off or in homage to it, it's a good idea to keep in mind what the original artist or author thinks about it. Such an approach isn't just about being legal, but respectful of the artist or author who created the work you love.
So far there isn't much guidance from the courts, either in Australia or overseas, about the legality of fan-works. Although it may seem that many artists and copyright owners tolerate fan-works, the key word to remember is tolerate. Should something you create as a fan attract their attention, either because you tried to commercialise the fan-work or offended the integrity of the original work, the limits of such tolerance will quickly become clear.
Jo Teng is a solicitor at Arts Law.