Fan Fair Use
The Right to Participate in Culture
Mark Peterson
Posted Monday, July 17, 2017

Have copyright laws turned children into criminals? Is it better to say that they might be criminals but we are not sure? Children prominently participate in fan fiction, a creative practice centered around borrowing elements from another, typically famous, creative work. The practice of fan fiction falls under a gray area of copyright law, somewhere between copyright infringement and fair use.

Although some support fan fiction’s legality, many rights-holders consider these artistic works to be copyright infringement. Nintendo shut down a Pokémon Cosplay party over copyright complaints. Hand knitted hats inspired by Firefly Serenity were removed from Etsy after copyright complaints. Decades of programming and coding work were deleted when DMCA takedown notices were filed against fan games Project AM2R (“Another Metroid 2 Remake”) and Pokémon Uranium. These DMCA takedown notices shutdown World of Warcraft legacy servers, preventing the revival of the original game.

Rights-holders can abuse their enforcement authority to arbitrarily discriminate amongst users. For example, J.K Rowling, the author of the Harry Potter series, chooses to prosecute only certain fan artists and not others. YouTubers hit with a DMCA takedown notice suffer from the ‘shoot first, ask questions later’ attitude of copyright infringement, as YouTubers’ videos are automatically removed and counter-notices are simply denied after a cursory examination. These DMCA takedown notices have become ubiquitous and problematic to the Internet’s potential to cultivate a creative culture. Google processed one billion of these takedown notices in 2016 alone. A study done by UC Berkley suggests that as many as 30% of DMCA takedown notices are of questionable validity.

Fair use serves as a defense to a DMCA takedown notice, but DMCA counter-claims are infrequently pursued, because even a successful copyright infringement defense is expensive, while the unsuccessful reach as far at $88 million. Considering the costs of litigation and the notorious uncertainty of a fair use defense, it is no wonder fan artists roll over and play dead when hit with a DMCA takedown notice, engaging in self-censorship.

This article begins by defining “fan fiction” and then offers an explanation of why it is important. Section two highlights three fan fiction video games that were shut down by questionable DMCA takedown notices. Section three analyzes the origins of the DCMA, its current use, and issues therein. The final section discusses the doctrine of fair use and its application in prominent case law. This article concludes by setting forth a novel solution to the problematic interplay of fan fiction and the DMCA in the form of a modified version of the fair use doctrine. The modification occurs in the first element of fair use analysis, ‘the nature and character of the use,’ and infuses within this element a consideration of the right to participate in one’s own culture