Fair Use Meets Reciprocal License: Who Wins?

Close chillOver on Concurring Opinions, Dave Hoffman has an interesting post concerning a fantasy author, George Martin, who has somewhat peculiar notions concerning copyright and fair use. In the course of explaining why, in his view, science fiction and fantasy authors must sue to shut down fan fiction wherever they find it, Martin cites as anecdotal evidence an incident that he claims happened to noted science fiction author Marion Zimmer Bradley:

MZB had been an author who not only allowed fan fiction based on her Darkover series, but actively encouraged it… even read and critiqued the stories of her fans. All was happiness and joy, until one day she encountered in one such fan story an idea similar to one she was using in her current Darkover novel-in-progress. MZB wrote to the fan, explained the situation, even offered a token payment and an acknowledgement in the book. The fan replied that she wanted full co-authorship of said book, and half the money, or she would sue. MZB scrapped the novel instead, rather than risk a lawsuit.

There’s some doubt expressed in the comments that Martin has recounted this story accurately, but that’s not my issue right now. Assume it happened just that way. I posted a comment saying that authors could avoid this situation by making clear, if they give their blessing to fan fiction, that it’s under a reciprocal license—the author has a nonexclusive license to use any derivative work created by the fan. (I also noted some other things, like the fact that joint authorship was not a real threat.) Jacqui posted a comment noting the scholarship on fan fiction, some of which argues that at least traditional fan fiction should be protected as fair use.

Put those points together, like some sort of bizarre Reese’s peanut butter cup commercial. Suppose Author A puts up a notice on their website along the lines I suggested, and suppose Fan Fiction Writer B sees the notice and then writes some fan fiction. Author A sees the fan fiction, and then sometime later writes a sequel that bears enough similarity to it to arguably qualify as substantially similar. But B argues: “Sure I saw your proffered license. But I didn’t need a license from you to do what I did; it’s a fair use. Therefore the original material I created belongs to me and you needed a license from me to use it.”

Something strikes me as wrong about B’s argument, but I’m not sure exactly what. It could be some variant of the copyright chestnut of an author being sued for infringing on him- or herself. It also reminds me a bit of Verio’s (losing but plausible) argument in Register.com v. Verio, that you can’t protect by contract something you have no exclusive rights over in the first place. But it seems very odd to have fair use being, essentially, converted from a shield to a sword.

Is there a clear way for authors to both bless fan fiction and avoid “blocking derivative works”? Would a mere covenant not to sue fan fiction writers, rather than an actual license, do the trick, such that use of the underlying material is not licensed and therefore Section 103(a) kicks in to deprive B of ownership over the new material? I’m not sure that establishes the necessary licensing hook the author would need in the first place. Perhaps the answer is that individual authors, just like large publishing houses, have to be extremely careful about unsolicited submissions. But that seems unsatisfactory. Thoughts?

5 thoughts on “Fair Use Meets Reciprocal License: Who Wins?

  1. Interesting thoughts, Bruce. And I had a similar reaction to you when I read the original post on Co-Op. When I was reading Hetcher’s article on fair use and remix culture, I started wondering if there is some interesting work to be done by someone on the relationship between the derivative work right and fair use in the fan fiction context. Copyright holders can effectively control derivative works, but there has to be line between something being a derivative work and something being fair use, and it’s not clear how to create appropriate guidance as to where that line should be drawn. It’s also interesting to compare this situation to moral rights jurisdictions. Because in a moral rights context, the original author has more and slightly different rights to the copyright holder. Thus if a publishing house holds copyright to the work and the author holds a right of integrity, fair use presumably wouldn’t be a defense against the author asserting that right even though it may be a defense against the copyright holder for infringement.

  2. Among the issues here is the underused notion of the idea/expression distinction. B is right on the law, but the situation is unlikely to come up–that I think is the source of your intuition–because the overwhelming odds are that, as in Batlin, the similarities stem from the relationship to the original/inspiration. People working from the previous seasons of House may all come up with good ideas for future developments, and those ideas may end up being pretty similar; but of course there is no protection for ideas, and I would expect any sensible application of that principle to be particularly robust in this situation.

  3. Hi Bruce — a couple thoughts:

    1) I think much of this, in practice, is about how, why, where, etc., fan authors do what they do vs. professional authors and intermediaries. Fan fiction inhabits a certain niche — you’ll get 1000s of short bits on fanfic sites, most of it with far less polish, even in basic proofreading and punctuation, than you see in professional work. It’s superabundant and amateur.

    The relevance of this is that the professionals — and more importantly, their publishers — have the lawyers, the money, and the motivation to use copyright as a tool, whereas fanfic authors rarely can pull all of that together.

    So I really don’t see B’s lawyer talking to A’s lawyer and explaining that fair use governs B’s work but A’s work requires a license. Not that it couldn’t happen, but it seems to me that the question in the standard situation is really about whether A’s lawyer sends a take-down notice to the ISP of B, C, D, etc. — and the answer is probably “no” because that is not good for PR.

    And yes, I think you’re right that the standard professional authorial approach should be to avoid reading (or at least claim to avoid reading) fan fiction, to avoid infringement claims. No access to the work = no infringement.

    2) But taking this as a doctrinal puzzle, I don’t see a problem at all if you’ve got I/E or no subsim.

    E.g., A paints “anteater playing a banjo,” B, A’s fan, paints (in a non-subsim or I/E protected manner) “anteater playing the drums”, and then A makes a subsim copy of B’s work. Seems to me that B *should* be able to bring suit against A in that case.

    I take it you’re suggesting that B’s work *is* subsim, and not I/E protected, yet falls within a class of “noncommercial / personal” fair use derivatives. In other words, “anteater playing the drums” would be infringing as a professional product, but we’re depending on the amateur nature of the fan work to shield B from liability. It does seem odd to let B to use this sort of fair use shield offensively to demand a license from A.

    If there have not been suits like this yet, there will be before long. (I guess RDR could have played out that way in an alternate universe.)

    But I wonder if that sort of “amateur” shield really exists so much in the modern fair use doctrine. After its heyday in Sony, “non-commercial & personal” seems to be ceding major ground to “transformativeness” and fourth factor analyses. While I think remix enthusiasts would like to see something like it, I’m not so sure it is really there.

  4. Great comments! Jacqui, I’ve been mulling this over since I posted it and I think you’re exactly right that what we’re seeing here is a difficult boundary between fair use and derivative works. The somewhat novel twist here is that we’re talking about DW *ownership* rather than infringement. I also think something author-specific in coming into play here. This is all somewhat unexplored territory because it’s only relatively recently that fair use DWs of this sort have even become thinkable.

    Rebecca and Greg, you both make a very good point, which is that the fact pattern I hypothesize where the issue is squarely presented might be somewhat atypical. The Bradley anecdote above reminded me a lot of cases like Litchfield v. Spielberg — I strongly suspect that whatever similarities there were in that case were, as in Litchfield (and Nichols, and others) at a fairly high level of generality. If that’s the situation then the original author should be free to do whatever it is she is planning, but for the traditional reason that general plot and character ideas are free for the taking, not because of any fair use/DW conflict. (There’s variations on this theme too: perhaps B didn’t really add enough sufficiently creative material to get a DW copyright, or perhaps B’s expression was a somewhat “obvious” path for a sequel to take, leading to something like merger.) It’s true that those might be the more typical cases, so what we might be seeing here is the common phenomenon in all areas of law of intuitions and/or the rules leading us astray in the very unusual case.

    Still as a matter of theory if nothing else I’m troubled by the possibility that there might be no practical way for an author (whether individual or corporate) to encourage and participate in the fan fiction universe spun out of his or her works without seriously impeding his or her ability to create follow-on works. It seems like that’s the wrong policy result. And I’m becoming convinced that this is an issue only when the fair use defense allows creation of Section 103 derivative works rights that are then directed back against the target of the defense. I.e., this is not a situation where B should be limited in their rights against third party C who writes a very similar piece of fan fiction. I might even be gaining new appreciation for the 9th Circuit’s ham-handed opinion in ERG, where the court declared that, for some reason, DW rights are restricted (even post-negotiated license!) so as not to curtail the copyright owners’ rights. (The story of my increased respect for 9th Circuit copyright law after actually trying to teach it is a blog post I’ll have to do later.)

  5. One more thing, Greg, I’m assuming, without having really slogged through the matter, that there can be some sort of fair use argument vis-a-vis traditional fan fiction based on now-prevalent transformativeness/market harm analysis. I think it’s noncommercial nature and it’s amateurness are going to still be key components of that analysis though. It seems to me important, although I don’t know how you encode this into doctrine, that most fan fiction is bad, basically. There’s not much of a market for bad, unauthorized, noncommercial sequels.

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