NOTE - This post is not legal advice and does not create an attorney-client relationship. Call (435) 200-5291 if you would like to schedule a trademark consultation with an attorney at Kennedy Art Law, P.C.
The widely popular HBO series Game of Thrones just finished its sixth season. SPOILER ALERT. (You’re welcome.) Now that the television show plot has blown past the published books, the new twists will undoubtedly spark a new flurry of online fan fiction.
“Fan fiction” is fiction written by fans using characters or storylines from original movies, books, or television shows to create new stories. FanFiction.net has over 3,817 Game of Thrones based fan stories. If you are a fan fiction consumer or creator (or a total nerd like me), you might have a couple questions: How does copyright law treat fan fiction? Does fan fiction qualify as fair use? Read on.
The Fair Use Defense
U.S. copyright laws grant authors certain exclusive rights: the right to reproduce their works, prepare derivative works, distribute copies of their works, perform their works, and publicly display their works. Copyright holders may have a claim that a fan fiction author committed copyright infringement. What is a fan fiction writer to do after pouring their hearts and souls into their stories? Fans might be protected by fair use.
Fair use is a legal defense that a fan fiction writer can assert against the original copyright holder’s claim of copyright infringement. Fair use may apply where the original work is being used for criticism, commentary, news reporting, teaching, scholarship, or research. BE CAREFUL – Even short clips or small uses of original material might be considered infringement – unless the new work qualifies for safe haven under the fair use defense, or if the fan writer obtains a license from the original intellectual property holder(s).
Courts consider and balance four factors to determine fair use: (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 for or value of the copyrighted work. The Supreme Court of the United States has held that no single factor is dispositive. Courts should balance all four factors in evaluating fair use.
The Fair Use Factors at Play
Fair use is analyzed on a case-by-case basis. Therefore it is impossible to make generalizations for all fan fiction, or for an attorney to make a prediction about your case without a consultation gleaning all of the relevant facts. Certain fan fiction stories may have a better defense of fair use than others. Here are a few hypothetical examples of how fan fiction might fare under each of the four elements of the fair use defense.
1. The Purpose and Character of the Use
The purpose and character of the use is broken down into two parts: (1) commercial purpose, and (2) comment or criticism of the original work.
Whether a use has a commercial purpose depends whether the secondary use profits from using the original work without paying royalties. Fan fiction is typically posted for free on the Internet, which means that the authors are not seeking direct monetary gain. Therefore, many fan fiction authors can probably prove that their work has no commercial purpose.
When evaluating whether the secondary use is a comment or criticism of the original work, courts analyze whether the new work is transformative. Fan fiction is most likely transformative where it drastically changes characters and/or storylines, and differs in tone from the original work. Examples might include fan fiction stories that use family friendly characters but put them in graphic, extreme, or genre-defying situations. This type of story is likely to be more transformative than one that merely fills in a gap or keeps the same tone as the original work.
Fan fiction author writes about the daily challenges that Tyrion Lannister faces running Meereen in Daenerys Targaryen’s absence. The style and tone is similar to the original books, the universe operates similarly to the original books, and the fan fiction characters behave consistently within the original characters. This use is most likely not transformative.
Fan fiction author writes a passionate and graphic homoerotic romance novel in the spirit of the novel Twilight. Jon Snow and Ramsay Bolton have little involvement with each other in the television plot aside from the “Battle of the Bastards.” They are enemies. They are also established heterosexual characters in the original narrative, thus far. The tone of Twilight is different from the Game of Thrones (Song of Ice and Fire) series. This use is likely transformative.
2. Nature of the Copyrighted Work
Courts recognize that original creative works are afforded greater protection than derivative works. Fan fiction stories are inherently derivative works under copyright law because they use characters or settings from original creative works. Therefore, this is the weakest element for fan fiction authors and the strongest element for copyright holders.
3. The Amount and Substantiality of the Portion Used
Rather than strictly analyzing how much the derivative work takes from the original, courts may evaluate the quality of what is taken. (Keep in mind that even the smallest uses may still count as infringement – these are fact-specific determinations.) The determination often comes down to whether the derivative work uses the “heart” of the original. The court may also need to determine whether the original characters are protected by copyright independent of the original work. Highly developed characters that are essential to the original story (e.g., Arya Stark) are more likely to be granted copyright protection than minor characters (e.g., Brienne’s father Selwyn Tarth).
Fan fiction stories that use secondary characters are more likely to prevail on this element than those who use highly developed central characters. For example, fan fiction exploring the unwritten romance between Grey Worm and Missandei would probably have a stronger argument under this element than fan fiction exploring the unwritten exploits of Cersei and Jaime Lannister.
4. The Effect on Potential Markets
Because most fan fiction is posted for free on the Internet, it does not directly compete in the commercial marketplace with the original work. However, if the fan fiction became more popular than the original work, then this factor could sway in favor of the original author.
It is counter intuitive to the spirit of writing fan fiction, but fan fiction that drastically transforms characters or storyline will have a stronger “fair use” defense than fan fiction honoring the style and tone of the original work. This is because the intended audience is often different than that of the original work. If a fan fiction story is similar in style and tone, and has a similar target audience, a court might find that it directly competes for the time, interest, and investment of the target audience. Where fan fiction appeals to a very niche audience, then it is less likely to compete with the original.
Fan fiction presents interesting questions and issues in American copyright law. "Fair use" continues to be a hotly contested issue. While some copyright holders may not believe fan fiction about their characters is fair use, they may tolerate it because they don't want to alienate their fans. Fans also need to recognize that intellectual property laws require original authors to enforce their rights to some extent or else lose their rights (and livelihood).
Ultimately, be careful and considerate in creating and publishing fan fiction, and consult an intellectual property attorney if you are interested in profiting from your work or hope to attract a large following of fellow fans. If you have questions about fair use in fan fiction, call Michelle Kennedy at (435) 200-5291. Kennedy Art & Entertainment Law offers reduced-fee consultations in-person or via phone or videochat.
This article does not create any attorney-client relationship.
 Brian Link, Drawing A Line in Alternate Universes: Exposing the Inadequacies of the Current Four-Factor Fair Use Test Through Chanslash, 33 T. Jefferson L. Rev. 139, 150 (2010).
 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985).
 Campbell, 510 U.S. at 579 (1994).
 Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1271 (11th Cir. 2001).
 Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 71 (2d Cir. 1999).
 Harper, 471 U.S. at 564 - 66.
 Link, supra note vii, at 155.