encouraging new creativity - no wait, not like that: exploring copyright’s stance on fanworks
(Warning: Long Post Ahead. This was a research paper I wrote in law school to fulfill a writing requirement; it in no way constitutes legal advice or should be relied upon as such, but it should serve as an interesting read for those interested in fanworks and copyright law in the US).
It is human nature to take inspiration from well-crafted stories, to dwell on them, to expand on them. We think hard about the stories we loved, and harder about the stories we did not. We lie in bed at night after watching a movie for the first time and think, “I don’t like how that one scene went. I wish it would have gone this other way instead.” When we create, we create works similar to those that have impacted us. The development of art, literature, and other forms of creative works throughout history bear witness to this natural human inclination, this tendency to latch onto existing works and be influenced by them. Look, for example, at the impact the Christian Bible has had on the history of art. Stories from the Bible inspired songs, art, literature, and scholarly writings starting as early as the second century and persisting, so much so that they still influence new works today. Not only has the Bible inspired works directly based off of the original texts—such as hymns, movie reenactments, or academic texts—it also inspired wildly transformative works like Jesus Christ Superstar, VeggieTales,or Paradise Lost. Looking more closely at the Paradise Lost example, while the Bible clearly inspired and provided the frame for the story, Milton borrowed the first few chapters of Genesis, one book out of sixty-six, and rewrote them, expanding on them. He borrowed characters and concepts from the original, but new characters were added, old characters were given new stories, and concepts were rewritten from different perspectives.
The above examples are considered “derivative works” under the Copyright Act, which defines a derivative work as a work “based upon one or more previous works . . . in which a work can be recast, transformed, or adapted.” It lists such examples as translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, art reproductions, and more. Most mainstream derivative works seen are either prepared by the original copyright holder or authorized by them, because under modern copyright law, copyright holders have exclusive rights to prepare derivative works based on their copyrighted work. Copyright authors seeking to enforce this right against derivative works created without permission can sue for infringement. Creators may feel the need to sue when the unauthorized derivative work is sold for profit, or when the creator’s potential market is being usurped, or even when the creator morally or otherwise disapproves of the work.
However, thanks to the Internet, the amount of unauthorized derivative works readily available for free has become unmanageable. There exists an entire subset of unauthorized derivative works this paper will discuss, and that’s the category of fanworks. Fanworks are derivative works, usually made by amateurs or fans of the original, that explore, expand on, or toy with an existing copyrighted work and its characters. Fanworks can include fanfiction, fanart, fanvids, creative essays, and more. Fanworks are so commonplace that most people have at least a little experience with them. As Rebecca Tushnet said, “if you have ever imagined what happened after Return of the Jedi, or wondered what would have happened if Superman was a villain facing off against Batman, you have begun to construct a fanwork.”
While fanworks are, by definition, derivative works, they differ from other derivative works in that, for the most part, they are non-commercial and created purely out of love for the source material. Fanworks are not like Marvel movies, which generate billions in revenue and are so popular as to have become a household name, nor are they like the several Doctor Who spinoff shows, created mostly to capitalize on a popular show and to expand on secondary characters featured within the show’s universe. Fanworks are generally posted online for free, if they are posted at all. Fans do not make money off their works, and while fanworks can get popular, they never surpass the original content. It is their purpose for creation that sets them most apart, however. Fanworks are created by fans who love and wish to engage with the source material and enjoy the process of creating.
This paper seeks to first, explore the societal benefits of fanworks, second, point out how current copyright law is damaging to these benefits, and third, propose a solution to the problem.
II. The Societal Benefits of Fanworks
Despite the negative perception some have of fandom, there are observable benefits to the production of fanworks, benefits both to the fan creators and the copyright holders of the source material. In light of these benefits, cultural acceptance has beginning to shift, with more and more original creators accepting or even openly encouraging their creation.
While fanworks have always existed, in a sense, the modern conception of fanworks began with Star Trek fanzines in the late 1960s. The first recognized dispute over a fanwork was in 1977, when the copyright holders of Star Trek sent a cease and desist letter to creators of one of these fanzines. Fandom then transformed thanks to the internet. It grew and spread and morphed, more and more fans finding and taking refuge in each other. Still, however, the existence, creation, and circulation of fanworks falls largely outside of mainstream culture. Now, fandom operates “as a deliberately cordoned off subculture, often one created by fans who self-identify as Othered.” Because of the general lack of understanding of what fanworks are, terms like “fanfiction” carry with them a negative connotation; with “fanfiction,” most people think of nerdy girls writing slash fiction, for example, and look down on fanworks as an art because of that. Sometimes, yes, fanworks do involve nerdy girls writing slash fiction, but even so, that does not make fanworks a lesser art. Creating fanworks is still just that--creating, and during this process of creating, those girls learn to write and express themselves as well as explore their voices and identities.
A. Fanworks as a Learning Tool
The process of creating fanworks can be educational. After all, all creators started somewhere; Shakespeare didn’t wake up one morning, decide to write a play, and produce Macbeth on a whim. “Practice,” many professional creators will advise when asked how to get better. Many aspiring creators and amateurs follow that advice, then, and they choose to do so through fandom.
Fan spaces make growth easy. They provide aspiring creators with a platform to create, learn, grow, and receive feedback. In some senses, creating fanworks is like learning to ride a bike with training wheels on. Fan artists develop drawing skills by recreating familiar characters; that way, they don’t have to worry about character design and can instead focus on the technical aspects of their art. Fanfiction writers can learn to string coherent plots together and write consistently without the additional complications of character and universe creation. But not only does fanfiction encourage the development of writing skills, it encourages reading skills, as well. Fans who may not otherwise pick up a book on their own may sit and read a hundred-thousand-word fanfiction about their favorite characters falling in love, or their favorite stories being retold under different circumstances. Then, after they finish reading the fanfiction, they digest what they read, and the participatory nature of fandom encourages them to discuss it with others. It’s not uncommon to go to Archive of Our Own and find a work of fanfiction longer than most published books. Some of these impossibly long works have hundreds of effusively positive comments posted beneath it. Half of these comments be compliments for the author, valuable in their own right for encouraging the writer to continue writing, but the other half may be comments deeply engaged with the text. While school teachers across the country struggle to get students engaged in texts, fanworks get them engaged naturally.
B. Fanworks used to Explore Identity and Build a Community
In addition to the academic and creative benefits of fanworks, fandoms are notoriously inclusive and accepting spaces, and the creation of fanworks is often used as a way to explore identity and seek solace. Additionally, because of the way fandom encourages open discussion, it is easy to make friends within the community. Fandom is a gathering of like-minded individuals all enthusiastic about the same content. Because of the high level of engagement, because of the free and easy access to this engagement, “community and friendship come naturally in fandom.
Many fans report being “saved” by fandom. It serves as an outlet and a support system, as well as a way to “meet personal emotional needs through engagement with familiar, even beloved, source material.” Fans who may not otherwise have an outlet to express certain feelings can—and frequently do—express them through fanworks. For example, fanworks help traditionally marginalized groups reclaim their agency or explore issues of gender and sexuality, which is why even slash fiction has its value.
C. Society is Learning to Accept Fanworks
Along with an influx of scholars defending fanworks comes a growing number of original content creators acknowledging fanworks’ value. This is particularly true as more fan creators move into the realm of professional creators. If fanworks are a place to learn and begin creating, it follows that some fan creators would eventually graduate to creating original works of their own. For example, many authors who used to write fanfiction are pushing their way into mainstream media. One of the most notable of these is E.L. James, author of the bestselling Fifty shades of Grey, which started as Twilight fanfiction before James reworked the plot and characters. Beyond fanfiction, the market for other art forms are even more accepting of established creators producing fanwork. For example, many popular artists continue to occasionally post fanart, even if they’ve established themselves and are appreciated for their original works.
While acceptance of fanworks among creators seems to be growing, there are still creators who discourage fanfiction of their works. Some creators take this negative stance simply because they don’t want to see their characters written by someone else, but others worry about the negative effect encouraging fanfiction will have on their rights as copyright holders, whether that effect be losing their copyright interest, fans accusing them of copying the plots of the fanfiction they encouraged, or fanwork consumers confusing fanworks with the real thing.
These various fears demonstrate the confusion surrounding current copyright law and the law’s application in regard to fanworks. Because fanwork disputes have rarely reached the litigation level, and those that have are mostly commercial exceptions, there are no concrete answers to these questions yet—no answers to the question of whether you can lose or waive your copyright interest by encouraging fanworks, or the question of whether you can read fanfiction of your own work, or the question of what happens when a fanwork is so well produced that it could be mistaken as the original. The law isn’t even clear on whether fanworks infringe copyright interests at all, or, if they do, whether fanworks might qualify for a fair use defense. With so many unanswered questions in this area of law, authors cannot be blamed for protecting themselves and their copyright interests out of uncertainty. Still, as seen above, the benefits of fanworks are such that they should be encouraged, specially so because mostfanworks do not harm the copyright holder.
Fanworks are a unique, relatively harmless niche of derivative works that require different rules and protections from the rest. Copyright law should take that into consideration and should adapt to reflect the shifting societal approval for fanworks, rather than discourage fan creators and punish copyright holders for supporting fanworks through confusion and subjectivity.
The next section of this paper will address the current state of copyright law as well as the likelihood fanworks could survive a fair use defense. Then, section four will discuss potential legal concerns that might prevent content creators from endorsing or encouraging fanworks, and why those fears should be remedied. Finally, part five will discuss how copyright law should be reformed to balance the interests of both fan creators and copyright holders while upholding a policy that maximizes creativity, growth, and the societal benefits of fanworks.
III. Are Fanworks illegal?
Several inquiries must be made to determine the legality of fanworks: first, whether fanworks infringe at all, second, which part of copyrighted works are being borrowed, and thid, whether fanworks qualify for affirmative defenses like fair use.
The lack of definite precedent and the subjectivity of the fair use factors when it comes to fanworks are confusing to fans fearing copyright infringement claims. While it clearly is not the case for all fans, given the high volume of fanworks circulating the Internet, the ambiguity of the law may be enough to discourage fans who don’t want to engage in “illegal activity” from creating. The idea that fanworks are “illegal” may also add to negative stigma surrounding fanworks, negating the benefits addressed earlier. For this reason, the law needs to be clearer about where it stands on the matter of fanworks.
A. Are Fanworks Infringing?
Because fanworks unapologetically borrow characters, settings, and designs from other works, those not versed in copyright law might see them as unquestionably copyright infringement. A copyrighted work exists, and fanworks borrow elements from it, directly reference it, and sometimes even copy entire quotes. It seems simple—if that’s not infringement, what is? As issues in law rarely are, however, determining copyright infringement is not simple. While violating a copyright holder’s express rights constitute prima facie infringement, a valid copyright must exist in order for infringement to exist. Most original works that inspire fanworks are copyrightable under law, as they are original works of authorship fixed in tangible forms of expression. The next step in determining infringement, then, is asking whether a specific right granted by law is being violated.
The Copyright Act explicitly lists several rights that copyright holders have,including the right to prepare derivative works and the right to reproduce copyrighted works, both of which are potentially violated in fanworks. In some cases, like with fanvids, the infringement is obvious; clips and images from the original are directly copied and reproduced in the fanwork. However, things become more complicated in cases like fanfiction and fanart, when asking which parts of the original works are copyrighted and which parts are borrowed. In works like fanfiction, sometimes fans merely sample characters, and in fanart sometimes it’s only designs. So can characters be copyrighted? What about character designs? If not, then that fanfiction you read where Clark Kent meets Gandalf in a seedy London Pub where they discuss the weather might not be infringing. But these questions also become important later, in determining the amount and substantiality of the copyrighted work borrowed.
In legal precedent, two major tests have been used to determine whether characters are copyrightable. First is the test used in Warner Bros. Pictures v. CBS, which says that in order to be copyrightable, the character in question must constitute the “story being told,” rather than being a tool used to tell the story.That is, a character can be a crucial, iconic part of a story, but if they’re only a piece used to convey the greater plot, the individual character is not protectable. This test is frequently questioned, and is generally vague and confusing. Because of the negative treatment it has received, the second test is the one courts should turn to instead. This second test appears in Nichols v. Universal Pictures Corp., and says that characters developed beyond mere stereotypes could be protected.
Even with these two tests in mind, case law surrounding the copyrightability of characters is confusing. Various courts have read the tests differently, often erring on the side of overly generous in extending copyright protections to characters. Courts have weighed additional factors not included in the tests above in their determinations, such as whether the character is visual or literary, how recognizable the character’s design is, whether the copyright holder would have exclusive rights to the character, or even, in a strange blend of copyright and trademark, how popular the character is. As a general rule, the more developed a character is, the more likely it is that the court will find a reason to protect them.
For the sake of continuing this discussion, we will assume that most fictional characters and their designs are copyrightable. In that case, borrowing characters for fanworks like fanfiction and fanart are infringement, and one of the best defenses the infringer has is the fair use defense.
B. Can Fanworks Qualify for Fair Use?
In what is known as the Fair Use Doctrine, copyright law states that the use of copyrighted materials “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not infringement. There’s more to it than that, but already, we can see that fanworks, by their nature, fall within the scope of the purpose of the fair use doctrine. In addition to, as discussed earlier, the educational nature of fanworks, the also inherently provide commentary and occasionally criticism of the works they dissect. Because fanworks take a copyrighted work and say “what if thishappened instead,” they explore the original material in a new way and add new perspective. Finding fair use takes more than that, however.
In determining whether there was fair use, four factors must be considered: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market of the copyrighted work.
1. The Purpose and Character of the Use
For the first factor, courts consider the commercial nature of the infringing work and the extent to which it transforms the original. The noncommercial nature of fanworks, then, carries a great deal of weight in the analysis of this factor. Fans neither make money off fanworks nor take money away from creators, usually. The inherently transformative nature of fanfiction is important, too, as “the more transformative the new work, the less will be the significance of other factors.”Fanfiction takes characters from works and puts them in new settings or scenarios, adding new meanings and creating new stories. Fanart, similarly, represents familiar characters in new, unique styles, often also in different contexts and new settings. Fanvids rearrange clips and put them to music to evoke emotions or string together a new theme, and so on. While fanworks can vary in how transformative they are, depending on the skill, imagination, and creativity of the fan creator, in most cases, fanworks take the original work and add something new to it, which is the very question at the heart of the “transformative” question.
In addition to the commerciality and the transformative nature of the infringing work, some courts also consider parodical or satirical intent, or the infringer’s justification for copying. In the case of fanworks, fans usually have innocent justifications for copying, justifications that involve a love for the source material and a desire to share that love with other fans. Fans don’t create fanworks “to get attention or to avoid the drudgery in working up something fresh.” With these three considerations weighing in favor of fan creators, then, the first factor generally supports fanworks.
2. The Nature of the Use
The goal of copyright law is to “promote the progress of science and useful arts,” and we accomplish that through a system that encourages creation and development by protecting the hard work of those who create and develop. Just as the transformative quality of fanworks varies depending on the creator and the subject of the fanwork, some original works are more in line with the purpose for copyright protections than others, and those are given more deference under this second factor. Creative works get deference, for example, as do published ones. Because almost all works that inspire fanworks are both creative and published, this second factor weighs in favor of the copyright holder.
3. The Amount and Substantiality of the Portion Used
Of the four factors, the third is the most subjective when it comes to fanworks. The amount and substantially of the portion used must be considered in context, in light of the purpose of the use. Given the entire point of fanworks and why people make them, it’s hard to avoid some degree of infringement. A fanwork is not a fanwork without characters borrowed from the original. However, a fanfiction without entire passages copied from the original book is still a fanfiction. Even with this context considered, however, the earlier question of whether characters can be copyrighted plays a large part in the determination of this factor. If a character is copyrighted, a fan including that character in a fanwork is borrowing all of the copyrighted material, rather than just a small piece of a much larger work.
The result of this factor will vary by fanwork type, too. Fanvids, for example, copy entire video sequences, which is more substantial copying than a fanartist altering a character’s design. Even within various fanwork types, too, like fanfiction, the result of this factor will vary. Some fanworks are written in the universe the original work is set in, for example, within the timeline the original work takes place in, with characters that are written nearly identically to how they would behave in canon. Other fanworks take place in “Alternate Universes,” where characters are taken from their universes and placed in different ones, of the author’s choosing. Often, in these cases, stories are so heavily altered, and characters are so independently developed that the only similarity these fanworks might share with the original work are the characters’ names and general appearances. These Alternate Universe fanfictions obviously borrow less than others, but no fanwork can be created without borrowing from the original. It would be very difficult to determine where fanworks would fall under this factor without examining each disputed fanwork in turn.
4. The Effect on the Potential Market
This factor is the most important in the consideration of fair use. The critical question in analyzing this factor is whether the infringing work usurps or substitutes the market of the original work. Arguably, most fanworks do not usurp the original’s market. Fans who read fanfiction or watch fanvids are just that—they’re fans of the original work, and well-written as fanfiction may sometimes be, as well-drawn as fanart may sometimes be, it’s never going to replace the original in the mind of any fan. Generally, someone who has not seen or read the original work is not going to read a fanfiction and say, “Well, that was great. I don’t even need to see the original now,” nor is someone going to read badly written fanfiction and let that taint their opinion of the original. If anything, fanworks bolster excitement for the original. Well drawn fanart can encourage new people to seek out the source material, or well-written fanfiction can remind fans of everything they love about the original. Because of this, and because of the noncommercial nature of fanworks, fanworks have generally do not harm the market for the original works.
With the analysis above, it may seem that the fair use factors mostly favor fanworks. However, most relevant—though distinguishable—legal precedent favors the copyright holder. So many various interpretations of the fair use factors exist, however, that courts can easily twist them to achieve unexpected results. In Warner Brothers Enterntainment Inc. v. RDR Books, for example, the analysis of a fanmade Harry Potter Lexicon’s transformative properties went on for five pages, considering not just the original Harry Potter books, but J.K. Rowling’s supplemental books and the “inconsistency” of the Lexicon’s transformative commentary as well. While RDR Books comes close, there aren’t any real examples of litigation involving noncommercial fanworks, and until a ruling is made on the issue, it is uncertain where courts might stand.
C. Legal Precedent
Most legal precedent regarding unauthorized derivative works is only analogous, with cases similar to fanworks but distinguishable for one or more reasons. Distinguishable as it may be, the case law involving other unauthorized derivative works do help pinpoint what it is about fanworks that makes them special. These differences can be narrowed down to a few key issues, most falling under either the first fair use factor or the fourth.
1. The Purpose and Character of Use
Again, three of the main considerations under this fair use factor or the commercial nature of the infringing work, the transformative value of the infringing work, and the infringer’s justification for copying the original work. Salinger v. Colting Demonstrates all three of these issues and weight given them well. Colting’s unauthorized sequel to “The Catcher in the Rye” did not qualify for any sort of defense because first, the sequel was sold for profit. Second, the court found3 that the sequel added little commentary of its own, and in fact, Colting’s purpose in writing the sequel was more to write a sequel and commercialize on Salinger’s success than to add any sort of transformative element. Comparing this to fanworks, then, the court could grant fanworks leniency due to their noncommercial nature, but might look to Salinger for analysis of the other two concerns, depending on the nature of the fanwork at hand. For example, fanfiction that continues an original story and explores events taking place after the original ends are is somewhat analogous to Colting’s sequel.
Similarly, in Paramount Pictures v. Axanar, the court found that the film’s producers, while they did not sell their professionally produced but technically fanmade Star Trek prequel for profit, they were deriving indirect commercial benefit from the film without licensing rights from the copyright holder. The court also said the Axanar fan film was not transformative because it was professionally produced to be on level with Paramount’s Star Trek films, and it was created with the express purpose of supplanting Star Trek and providing fans with new Star Trek material. This is not very analogous to fanworks. Generally, fanworks are amateur works not meant to supplant or be on level with the original, and they are created for fun. Fanworks are also rarely done so well that they’re indistinguishable from the original, like the film in Axanar.
2. The Effect on the Potential Market
Going back to Salinger, the court found that while Colting’s sequel might not directly impact the Catcher in the Rye’s original market, it may restrict Salinger’s right to create or authorize a sequel himself. Similarly, the Axanar film restricted Paramount’s right to produce Star Trek prequels itself, or to license others to produce them. Then, again in RDR Books, because J.K. Rowling intended to one day produce her own Harry Potter reference guide, the court found that the fanmade Lexicon interfered with her right to do so.
The majority of fanworks do not usurp the market for the original, and this, again, is due to their unique nature. Fanworks explore new possibilities, an infinite number of scenarios—including repetitive ones, the same tropes replayed over and over again by different fan creators in different ways. A fandom can have dozens—sometimes hundreds, depending on the fandom’s size—of stories and depictions of characters meeting at a coffee shop, or attending college together, or making specific choice A when, in the original work, they made choice B. Despite the potential repetition of plot or depictions, fans will still engage with all these repetitive pieces, because each piece brings some new element, or expresses characters in a different way. The point is, if an original content creator decides to go somewhere a fanwork has already gone, that will not stop a fan from engaging with it.
For the most part, fanworks are noncommercial—not for profit and not economically beneficial in the way the Axanar film is. Fanworks are produced for fun, very rarely done so well that they’re indistinguishable from the original, like the Axanar film or Colting’s sequel. Finally, most fanworks don’t impinge upon markets the original creators may seek to explore, except in innovative cases like the RDR Books Lexicon or ambitious fanfiction that may explore prequels or sequels.
Still, without directly on point cases, uncertainty remains as to how courts may analyze fanworks. For this reason, and because the fair use factors are designed more for cases like those above than amateur fanworks, we need clear guidance on flaw, guidance that should modify the fair use analysis to better suit the unusual world of fanworks. Fair use, however, is not the only concern standing in the way of protecting fanworks. Current copyright law discourages creators from allowing fanworks just as much as it frightens fan creators away from making them.
IV. Current Copyright Law Discourages Copyright Holders from Encouraging Fanworks.
Some fans will not create for or engage in certain fandoms unless they know the creator’s stance of fanworks ahead of time, so for creators who want to foster engagement and encourage fan interaction with their works, providing fans with express approval matters. However, these creators may have several fears in doing so, based on the current state of copyright law.
Are Creators Exposing Themselves to Affirmative Defenses?
If an author approves of or even merely tolerates fanworks, fanwork creators may be able to argue implied consent in addition to fair use. In fact, this argument might be even stronger than fair use. If the author really does approve of fanworks, this shouldn’t be a problem, but special circumstances may arise in which the copyright holder feels the need to sue. These circumstances could involve commercialized fanworks, fanworks using the copyrighted material in harmful ways (such as someone using a copyrighted character to relay harmful messages), or circumstances like those found in RDR Books, where J.K. Rowling sued the lexicon maker because she’d hoped to publish one of her own eventually. However, the implied consent issue did not come up in RDR Books,despite Rowling knowing about other types of fanfiction and doing nothing about them. She has also brought suit at other times, when authors have monetized their fanworks. Copyright holders should be assured that they can still enforce their copyrights if the need arises, but not in the case of harmless fanworks.
B. Are Creators Exposing Themselves to Reciprocal Suits?
Some creators may fear that, by encouraging and supporting fanfiction, they are giving fans an opening to sue in case their future work coincidentally resembles the fan’s. Neil Gaiman, for example, says that he doesn’t read fanfiction because “that way no-one has to wonder whether [he] stole the plot of something from their fanfic.” N.K. Jemisin also says that for legal reasons, she doesn’t read fanfiction. They are not alone in enforcing this common precaution. Based on relevant case law on this issue, however, copyright holders might not have to worry. In Anderson v. Stallone, a screenwriter sent a potential Rocky script to Sylvester Stallone. When the subsequent Rocky movie shared some similarities with the script, Anderson sued. The court ruled that infringing works are not protectable by copyright, and therefore Stallone couldn’t have infringed. This decision is obviously dependent on the finding that the script was infringing, however, which may not always be the case with fanworks, as discussed above.
Are Creators Encouraging the Commercialization of Fanfiction?
The shift toward acceptance of fanfiction comes with the acknowledgment that fanworks take time and effort to create, and fan creators should be compensated for that. Amazon recently launched a fanfiction platform called Kindle Worlds.Kindle Worlds obtains licensing rights for various copyrighted works, and then writers can submit works to be published, and the prices of these published fanfictions are comparable to Kindle’s self-published original works. Still, rather than rely on platforms like Kindle Worlds, many fan creators take initiative and offer commissioned works. These commissions can be offerings such as $5 per 500 words, or $20 for a fully inked and colored character. For now, these minor commercializations are relatively harmless. Kindle Worlds obtains licensing for its fanfiction, and it is unlikely that fan creators make a significant amount of money off commissions. Still, some copyright holders might prefer that fans not make any profit off their works, or fear that this is a slippery slope leading to the commercialization of fanworks becoming mainstream.
V. What Should be Done?
In summary, society is beginning to recognize the value of fanworks, but that brings with it additional concerns and complications. While some creators may wish to encourage fanworks and their creation, the muddy state of the law and lack of precedent may prevent them from doing so. While straightforward analysis of copyright law seems to support fanworks, certain complications such as the subjectivity of the fair use test, the lack of directly applicable precedent, and the various other concerns copyright holders might have add uncertainty to the results. Neither fan creators nor original content creators can fully understand the impact their actions could have on copyright litigation, should it arise, but if the law was clearer, it could create a peaceful impasse between the original and fan creator. In other words, if the law specified what lines fanworks can and cannot cross, there would be less fear of retaliation on the fan creator side and less fear of risking copyrights on the original content creator side.
Fanworks differ from most unauthorized derivative works, and the law should treat them differently. Trying to weigh the fair use factors in fanwork cases is impractical. While the fair use factors are appropriate for most derivative works, fanworks are unique in several aspects and should be treated uniquely. For example, the second factor will almost always favor the copyright holders, as will the third—there will always be substantial copying, just given the nature of fanworks. Even the transformative requirement is impractical, as courts may attempt to construe “adding commentary” in such a strict way that it excludes fanworks. After all, often, fans do not create fanworks with the intention of adding commentary or criticism; instead, they create for fun, and out of love for the original. Fanworks should be treated differently because of this well-intended purpose as well as because of the benefits and general harmlessness of fanworks.
Because the majority of the problem discussed in this paper is rooted in the confusion and uncertainty surrounding fanworks’ place under copyright protection, a definitive, concise ruling on the matter could fix many of these issues A potential solution is codifying fanworks as a new kind of limitation to exclusive rights distinct from fair use and its four factors. Other limitations like this can be found in the Copyright Act. Even an official comment to the fair use factors would go a long way. Ideally, this comment would instruct courts that fanworks should be protected so long as they do not do the following: (1) be produced commercially; (2) occupy spaces the original creator could reasonably seek to expand to themselves (such as prequels, sequels, and lexicons); (3) borrow unreasonably and too substantially from the original. These three criteria would satisfy most of the issues addressed in this paper, as well as protect both fanworks and the original source creators. To prevent unauthorized derivative work creators from taking advantage of these instructions, they should be limited to “fanworks,” and “fanworks” should be defined narrowly.” Finally, even a directly applicable and analogous court decision would help clarify uncertainty on these issues. Clarifying the uncertainty will lead to fanworks flourishing, which is important to encourage new creativity and engagement in fans who learn and grow from their engagement.
 Early Christian Art, Encyclopædia Britannica, Inc. (July 23, 2015), https://www.britannica.com/art/Early-Christian-art
 Jesus Christ Superstar is a rock opera with music by Andrew Lloyd Weber and lyrics by Tim Rice. It portrays the last week of Jesus’ life leading up to his crucifixion and adds new dynamics and stories between various characters.
VeggieTales is a series of animated children’s television shows, videos, and feature films in which anthropomorphic fruits and vegetables reenact stories from the Christian Bible..
 Paradise Lost is an epic poem by John Milton. It recounts the book of Genesis, with a majority of it written from Satan’s perspective in hell.
 17 U.S.C. § 101 (2006).
 Id. § 106(2).
 Id. § 501.
 Videos sampling images or scenes from a work, usually set to music to create new meaning.
 Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 William & Mary Law Review 513, 529 (2009), https://ssrn.com/abstract=1498542.
 Id. at 527.
 Based on Marvel Comics.
 There are sites operated specifically for hosting fanfiction as well as journaling sites that have been appropriated by fans for sharing fanfiction. There are also many creators who produce fanworks prolifically without ever posting any of them.
 There are exceptions, such as fanzines and fanart or fanfiction commissions.
 Id. at 532, 533.
 Meredith McCardle, Note, Fan Fiction, Fandom, and Fanfare: What’s All The Fuss?, 9 B.U. J. SCI. & TECH. L. 433, 440 (2003).
 Id. at 441.
 See generally, Christine Dandrow, Fandom as a Fortress: The gendered safe spaces of online fanfiction communities, Media Report to Women, Fall 2016, 6.
 Fanfiction that explores romantic relationships between characters of the same sex.
 Id. at 527 (discussing how fanworks are mainly produced by women, and how that contributes to their status as an “outsider art”); see generally Elizabeth Rosenblatt and Rebecca Tushnet,Transformative Works: Young Women’s Voices on Fandom and Fair Use, in eGirls, eCitizens 385 (U. Ottowa Press, Jaine Bailey & Valerie Steeves, eds., 2015), https://ssrn.com/abstract=2614756
 Becca Schaffner, In Defense of Fanfiction, 85(6) Hᴏʀɴ Bᴏᴏᴋ Mᴀɢᴀᴢɪɴᴇ, 613, 615 (2009).
 Tracey Kell, Using Fanfiction to Teach Critical Reading and Writing Skills, 37 Tᴇᴀᴄʜᴇʀ Lɪʙʀᴀʀɪᴀɴ, 32, 32-35 (2009) (encouraging teachers and librarians to use fanfiction to teach students).
 Rosenblatt and Tushnet, supra note 21, at 393 (discussing how participants in fandom are eager to engage with fanworks and offer feedback).
 A non-profit website operated by the Organization for Transformative Works that hosts fanworks.
 See generally Kell, supra note 23.
 See generally Dandrow, supra note 18.
 Rosenblatt and Tushnet, supra note 21, at 387.
 Schaffner, supra note 22.
 Id. at 388.
 Id. at 389.
 ‘Fifty Shades of Grey’ Started out as ‘Twilight’ Fan Fiction Before Becoming an International Phenomenon, Bᴜsɪɴᴇss Iɴsɪᴅᴇʀ, Feb. 17, 2015, http://www.businessinsider.com/fifty-shades-of-grey-started-out-as-twilight-fan-fiction-2015-2
 Jen Bartel, https://www.jenbartel.com/#!/work/women-of-wakanda (last visited Mar. 16, 2018)(popular illustrator and comic artist posting fanart of the Black Panther, a Marvel movie); Dave Rapoza, https://daverapoza.carbonmade.com/projects/5313378 (last visited Apr. 16, 2018)(popular artist with a portfolio folder specifically labeled “fanart”).
 Fᴀɴꜰɪᴄᴛɪᴏɴ.ɴᴇᴛ, https://www.fanfiction.net/guidelines/ (last visited Apr. 15, 2018) (listing authors who have spoken against fanfiction).
 Fᴀɴʟᴏʀᴇ, https://fanlore.org/wiki/Anne_Rice (last visited Mar. 15, 2018)(saying that it upsets her “terribly to even think about fanfiction with [her] characters”).
 Fᴀɴʟᴏʀᴇ, https://fanlore.org/wiki/Orson_Scott_Card (last visited Apr. 15, 2018).
 Neil Gaiman, http://journal.neilgaiman.com/2004/06/how-to-survive-collaboration.asp (last visited Apr. 15, 2018).
 Ursula K. Le Guin, http://www.ursulakleguin.com/FAQ.html#FF (last visited Apr. 15, 2018).
 Rachel L. Stroude, Comment, Complimentary Creation: Protecting Fan Fiction as Fair Use, 14 Marq. Intell. Prop. L. Rev. 191, 193 (2010).
 Paramount Pictures Corp. v. Axanar Prods., No. 2:15-CV-09938-RGK-E, 2017 U.S. Dist. LEXIS 19670 (C.D. Cal. Jan. 3, 2017)(discussing a for-profit, professional quality fan vid); Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)(discussing an unauthorized sequel to Catcher in the Rye that was sold commercially).
 17 U.S.C. § 501.
 With the exception of fanworks based on bands or real people, which fall outside the scope of this paper.
 Id. § 102.
 Id. § 106.
 Id. § 106(2).
 Id. § 106(1).
 Samantha S. Peaslee, Article, Is There a Place for Us?: Protecting Fan Fiction in the United States and Japan, 43 Denv. J. Int’l L. & Pol’y 199, 209 (2015).
 McCardle, supra note 16 at 445 (arguing that the central issue with fanfiction is the borrowing of characters).
 Peaslee, supra note 49 at 212.
 Id. at 209.
 Warner Bros. Pictures v. CBS, 216 F.2d 945, 950 (9th Cir. 1954)
 Gaiman v. McFarlane, 360 F.3d 644, 660 (7th Cir. 2004) (saying that the Warner Bros. decision is “wrong”); Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1293 (C.D. Cal. 1995)
 Peaslee, supra note 49 at 209.
 Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)
 McCardle, supra note 16, at 447.
 Gaiman, 360 F.3d at 660.
 Warner Bros. Entm't, Inc. v. X One X Prods., 644 F.3d 584, 600-01 (8th Cir. 2011)(arguing that the cartoons “Tom and Jerry” are more copyrightable than the “Gone With the Wind” characters, as the latter have no recognizable or consistent physical design. Meanwhile, characters from “The Wizard of Oz” fall somewhere between the two, as Dorothy, for example, has a consistent hairstyle, look, and manner of dress).
 Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995)(deciding that as plaintiffs only had copyrights to some of the movies James Bond appears in, they only held copyright to how he is expressed in those movies).
 McCardle, supra note 16, at 447.
 Peaslee, supra note 49, at 210.
 17 U.S.C. § 107.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
 Blanch v. Koons, 467 F.3d 244, 254 (2d Cir. 2006).
 Tushnet, supra note 10.
 Campbell, 510 U.S. at 580.
 Again, this may not be true in cases with less creative, more factual fanworks, such as lexicons.See Warner Bros. Entm’t Inc. v. RDR Books, 575 F. Supp. 2d 513, 540-46 (S. D.N.Y. 2008).
 U.S. Const. art. I, § 8.
 Campbell, 510 U.S. at 586.
 Koons, 467 F.3d at 256.
 Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 144 (2d Cir. 1998).
 Harper & Row Publishers, Inc., 471 U.S. at 566 (1985).
 Campbell, 510 U.S. at 593.
 Warner Bros. Entm’t Inc. v. RDR Books, 575 F. Supp. 2d 513, 540-46 (S. D.N.Y. 2008)
 Stroude, supra note 41.
 Salinger v. Colting, 607 F.3d 68 (2d Cir. 1998) (challenging an unauthorized sequel to Salinger’s “Catcher in the Rye”).
 Id. at 73.
 Paramount Pictures, No. 2:15-CV-09938-RGK-E, 2017 U.S. Dist. LEXIS at 23.
 Id. at 22.
 Salinger, 607 F.3 at 74.
 Paramount Pictures, No. 2:15-CV-09938-RGK-E, 2017 U.S. Dist. LEXIS at 28.
 RDR Books, 575 F. Supp. 2d at 549.
 This varies from the facts of Axanar, as part of the court’s reasoning on the fourth factor was that the creators intended to provide other fans with a more accessible Star Trek film. Paramount Pictures, No. 2:15-CV-09938-RGK-E, 2017 U.S. Dist. LEXIS at 28.
 McCardle, supra note 16 at 449.
 RDR Books, 575 F. Supp. 2d at 549.
 Peaslee, supra note 41 at 211.
 Neil Gaiman, http://journal.neilgaiman.com/2004/06/how-to-survive-collaboration.asp (last visited Mar. 15, 2018).
 N.K. Jemisin, http://nkjemisin.com/2011/08/yeine-concept-art/ (last visited Mar. 17, 2018).
 Anderson v. Stallone, No. 87-0592 WDK (GX) 1989 U.S. Dist. LEXIS 11109 (C.D. Cal. 1989).
 Id. at 15.
 Samantha Highfill, Fan Fiction Finds a Home at Amazon, Eɴᴛᴇʀᴛᴀɪɴᴍᴇɴᴛ Wᴇᴇᴋʟʏ, June 28, 2013, at 14.
 Fᴀɴʟᴏʀᴇ, https://fanlore.org/wiki/Writing_Commissions, (Last accessed Apr. 17, 2018).
 17 U.S.C. §§ 107 – 112.
 See generally Paramount Pictures, No. 2:15-CV-09938-RGK-E, 2017 U.S. Dist. LEXIS; RDR Books,575 F. Supp. 2d 540.
 For example, limiting the scope of “fanworks” to include only noncommercial derivative works created by amateurs.