August 7, 2012
I’m pretty sure we’ve all heard of the popular book, “Fifty Shades of Grey.” The book, dubbed “mommy porn” by the media, has been topping best seller lists all summer. Jeremy Byellin over at WestlawInsider even analyzed the enforceability of the 50-shades contract.
The popular series actually began online as fan fiction, loosely based on the popular “Twilight” series. Fan fiction is generally known as fictional stories derived from another author’s work. Fan fiction writers typically use characters from favorite books, movies, television series to create their own stories. There are millions of fan fiction stories available online. E.L. James, the author of “Fifty Shades of Grey,” initially posted her story on the popular website fanfiction.net. A sexed-up variation on the Twilight series, it was originally titled “Master of the Universe.” As it gained popularity, James eventually took the story off the internet, reworked it, and then introduced it as a series of three books, which was then picked up and published.
The “Fifty Shades of Grey” experience, though, is unique. The vast majority of domestic fan fiction remains outside the commercial sector, and publicly available only online. There are, of course, legal implications to fan fiction. Fan fiction frequently finds itself at odds with copyright protection in particular. I wanted to see what sort of material is available discussing these issues. On WestlawNext, I clicked into the Topics tab from the home screen. Then I clicked on Intellectual Property. I ran the following search in all Intellectual Property material:
Notably, there is no case law available on this topic. But we have a fair number of Secondary Source results.
Christina Z. Ranon, Honor Among Thieves: Copyright Infringement in Internet Fandom, 8 Vand. J. Ent. & Tech. L. 421 (2006)
Rachel L. Stroude, Complimentary Creation: Protecting Fan Fiction As Fair Use, 14 Marq. Intell. Prop. L. Rev. 191 (2010)
Mollie E. Nolan, Search for Original Expression: Fan Fiction and the Fair Use Defense, 30 S. Ill. U. L.J. 533 (2006)
Leanne Stendell, Fanfic and Fan Fact: How Current Copyright Law Ignores the Reality of Copyright Owner and Consumer Interests in Fan Fiction, 58 SMU L. Rev. 1551 (2005)
Aaron Schwabach, The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright, 70 U. Pitt. L. Rev. 387 (2009)
ADDITIONAL RESEARCH REFERENCES
You can search for cease and desist letters delivered to fanfic authors at Chilling Effects.org. Follow the Search the Database link. There are at least 13 results.