Many fans of literature, movies or games engage in creative activities, thereby making use of existing fictional characters or settings. One might ask the question how such reuse is seen in the light of copyright law? Are the works of these fans legal?

Fans think up new scenarios or turn minor characters into main characters to rewrite their favorite stories from a different angle and highlight new aspects. Or they make paintings and drawings starring their beloved characters. Also, well-known fictional characters are sometimes used for parody and satire. As most fan fiction and fan art is never professionally published, the internet offers fans an easy way to share their works with each other fans. 

Copyright protects actual works of art, not ideas. However, creators’ fictional characters may be copyright protected, separate from the work(s) of art in which the characters appear. In the 1954 Warner Bros. Pictures v. Columbia Broadcasting System, the Court of Appeals of the US stated: "It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright." 

From the 1930, Nichols v. Universal Pictures Corporation case follows that "the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly."

An European example of  a lawsuit regarding copyright on fictional characters is the Dutch ‘Neonletters’ case. jure.nl/bt6931  Two characters from a television show were used in another television show. According to the court, this constituted a copyright infringement. 

Comic book characters are more protected by copyright than literary characters. "A comic book character, which has physical as well as conceptual qualities, is more likely to contain some unique elements of expression", says the Circuit Judge in the 1978 Walt Disney Productions v. Air Pirates case, "while many literary characters may embody little more than an unprotected idea."

Some fans might want to write stories based on their favorite fiction, without using existing characters. In that case, specific elements of the story or the concept could be copyrighted. Lauren Davis of io9.com gives the example of Harry Potter. A story about a boy learning to do magic at boarding school won't necessarily infringe on the copyrights of Harry Potter. The basic idea of a story can't be protected. But the more specific details you adopt from the original story, the closer you get to copyright infringement. 

Is this bad news for fans who would love to create their own works based on existing fictional characters or stories? Fortunately, not every use of a copyrighted work is considered an infringement. In the US, the fair use exemption offers protection for fan works. While it is sometimes hard to draw the line between fair use and infringement, there are some factors that courts take into account:

• Is the work commercially exploited or not? Non-commercial works are far more likely to fall under the fair use exemption than commercial works. 
• Does the fan work harm the (potential) market of the original work? If the fan work is commercially exploited, it might harm the market of the original work.
• Fiction gets more protection than non-fiction.
• How much is copied from the original work? The less you've used, the stronger your case will be.
• Is the fan work transformative? Transformativeness means that the expression, meaning or message of the original work is altered through the use of the copyrighted material. The more transformative the work is, the more likely it is that it will fall under the fair use exemption. 

While Europe doesn't offer a fair use exemption, fan works could fall under the limitations and exceptions from the Copyright Directive. However, Member States can choose which limitations and exceptions they implement in their national laws, so the protection of fan works may vary from country to country. 

It's not always clear where to draw the line between copyright infringement and fair use, but, as the U.S. Circuit Court said in the Nichols v. Universal Pictures Corporation case: "While we are as aware as any one that the line, wherever it is drawn, will seem arbitrary, that is no excuse for not drawing it; it is a question such as courts must answer in nearly all cases." Nevertheless, fans who write their fan fiction or create their fan art out of love for the original work, without commercial purposes, probably don’t have to worry.

Source: io9.com 

By: Marjolein van der Heide