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Abstract

Fan culture, in the form of fan-created works like fanfiction, fanart, and fanvids, is often associated with the Internet. However, fandom has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom long before the age of the Internet. Despite their persistence, fanworks have long existed in a gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. Although these analyses pay lip service to a requirement of aesthetic neutrality, they tend to become bogged down by unarticulated artistic judgments that hinge on a court’s personal interpretations of the work in question. One outcome of this emphasis on aesthetic value has been a de-emphasis of the market harm factor of fair use, the examination of which has come to be subsumed by courts’ aesthetic judgments. This de-emphasis of the financial aspect of fair use has strong implications for the legality of fanworks. Mainstream culture has historically considered fanworks to have little aesthetic value, which can lead to knee-jerk findings of infringement in aesthetic-based fair use analyses. However, both old, venerable fandoms like Sherlock Holmes and new works funded by Kickstarter demonstrate that fanworks can actually enable further creativity by the copyright-holder and increase the value of the original work rather than detract from it. Shifting the focus of fair use analysis to a market-based approach would prioritize economic returns over courts’ artistic opinions. Such a shift would correct the imbalance created by aesthetic value judgments of free works that cause no economic harm and recognize that fanworks often operate as market facilitators, not market rivals. This Article examines the phenomenon of fandom and its effect on the original works that inspired it through the medium of both old fandoms that pre-date the Internet age and new fandoms that have come of age in a digital world. This Article argues that active fandoms producing a large amount of fanworks tend to aid the goals of copyright. It further posits that fair use analysis of these works should be re-focused on ensuring a meaningful examination of the effect on the market factor that avoids the taint of courts’ aesthetic judgments. A renewed appreciation for the effect on the market factor would result in a more accurate application of the fair use doctrine that would acknowledge the role of fanworks and their participatory culture in supporting the economic incentive motivation of copyright.

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