10 Copyright Cases Every Fan Fiction Writer Should Know About

If you are a Star Trek fan, the name Axanar has almost certainly crossed your lips or your computer screen recently. Axanar is a film (well, at least a very good trailer aspiring to be a film) set in the Star Trek universe, which tells the back story of Garth of Izar, a character who appeared in one episode of the original Star Trek series. But what makes Axanar notable is not the story, or the excellent production values, but that it is completely unauthorized by Paramount Pictures or any of the other entities connected to the official Star Trek franchise. It is, in many senses of the word, fan fiction.

What is fan fiction? Wikipedia defines it as "fiction about characters or settings from an original work of fiction, created by fans of that work rather than by its creator."

Recently, the Syfy Channel's Blastr was putting together an article about the copyright lawsuit brought by Paramount against the makers of Axanar, and they asked me to compile a list of prior legal disputes involving Star Trek fan fiction. Using Wikipedia's definition of fan fiction, I couldn't find anything. I expanded the search to other sci-fi fan fiction. I couldn't find anything there either. I finally logged on to my legal research database and typed in a search for all published opinions in any court that have contained the words "copyright" and "fan fiction." To my horror, I got nothing.

What gives? The most reasonable explanation is that fan fiction is usually not good enough or marketable enough to create the kind of financial threat to a television program or published book that would cause anyone to bother filing a lawsuit. And in those rare instances when it does rise to that level, the "fan" in question is likely to be a professional artist in his or her own right who isn't in a hurry to adopt the "fan fiction" label.

Unable to find a single case expressly discussing copyright issues in the context of fan fiction, what I eventually compiled for Blastr was a list of published cases that teach us some valuable lessons applicable to fan fiction. The Blastr piece, Star Trek, Axanar and the Future of Fan Fiction by Dany Roth, is available here. Blastr didn't have space to print my full list or all of my pedantic introduction, so we thought we'd offer a fuller version of it here. If you don't like pedantic introductions, skip ahead two sections to get directly to the list.

The Creative Process – Levels of Abstraction

To understand how copyright law might approach a work of fan fiction, you first need to understand that copyright law looks at creative work generally as a series of levels of abstraction. What does this mean? Start by thinking about the stereotypical creative process for a novel. First you have an idea. The idea starts to take form within a fictional or semi-fictional universe as you add locations, characters and other elements. Eventually, you organize these elements into a plot, and then finally you commit all of it to the fixed word on the page. Each step along this path is a different level of abstraction. As you move along through the process, things get less abstract and more specific. The higher the level of abstraction, the less protection copyright law affords to the elements within that level. Let's take Hamlet as an example, starting from the highest level of abstraction, the idea:

Idea: A Prince goes nuts after the King dies in suspicious circumstances. Universe Elements: Denmark in the late middle ages; the rampart at Elsinore; the prince's girlfriend (Ophelia); two of Hamlet's college buddies (Rosencrantz & Guildenstern), a ghost, etc. Plot: Hamlet's father, the Danish king, dies, after which Hamlet's mother remarries his Uncle Claudius. Hamlet thinks he sees his father's ghost on the ramparts of Elsinore . . . yadda yadda . . . Hamlet dies, clearing the way for a new royal line under the Norwegian Fortinbras. Fixed expression: "To be or not to be — that is the question," etc. As you can see, the above-described creative process begins with an abstract idea, gets less abstract and more specific as it develops from an idea into a plot, and culminates at the least abstract and most specific level: the actual words on the page. Copyright law lets you copy the highest level of abstraction, the idea (this may be plagiarism, but plagiarism is an academic offense, not a legal one). On the other end of the spectrum, copyright law is less likely to let you copy someone else's specific written words (the lowest level of abstraction). In between these extremes are various shades: copyright law may or may not protect...