Whether you can define fandom or not, you have experienced its effect to some extent – you have been a fan of a TV show, a film, or another form of media. There is a unique pleasure in waiting for the next episode, meeting up with like-minded people, or buying merchandise associated with your object of affection. But what exactly is fandom? And why should you, as a legal academic, care about it?
Fandom is briefly defined as a community of fans of any sort of element of pop culture. This community can grow from a shared love for a TV show or a film, as previously mentioned, but could also be about a book, a sports team, or a musician; the list is not exhaustive. Fandom studies have steadily grown since the 1990s, and it is not hard to imagine why. Being a fan of any sort of media can reflect plenty about your identity, your beliefs and your values, whether you realise this or not. In turn, this can help us further research and knowledge in disciplines such as cultural studies, languages, media, psychology, and even law.
The connection between fandom and the law may not be discernible at first, and indeed, there is little dedicated literature to the intersection of law and fandom studies. However, more and more fan creators are being tried in courts across the world for violating intellectual property law, while Cease and Desist letters are becoming even more commonplace for creators of fanwork – which can be any fan-made creation relating to an original work, whether this be fiction, artwork, or music.
In this post, I provide a few examples of fanworks that have been the subject of legal dispute. By analysing these examples, I suggest that the interdisciplinary study of fandom and law can help us further understand the connection between law and fandom, as well as provide new approaches on how we understand the position of morality in intellectual property (IP) law.
Fan fiction and law: the facts
One of the first instances of fanfiction being brought to the mainstream was Anne Rice, the author of Interview with the Vampire. Anne Rice expressed disdain with the dissemination of fan fiction as early as 1995, but it was in April 2000 when at least four fan fiction authors were served with Cease and Desist letters. There was no recorded case that reached the courts, but Anne Rice actively voiced her being uncomfortable with fanfiction, never sharing her reasoning, until her death in 2021. The aftermath of Anne Rice’s ban included the mass deletion of fanwork, as well as the stagnation of the Interview with a Vampire fandom.
This was one of the first times in the United States where fan fiction authors were threatened with legal action – although fan fiction had already been scrutinised in the Japanese courts. In 1998, where a fan was sued by Nintendo for creating and selling sexual Pokemon fan comics, the counsel for Nintendo argued that it was precisely the sexual nature of the comics that triggered the legal action, and not the for-profit nature of the distribution. Perhaps unsurprisingly, this led to a self-regulated restriction of doujinshi (fan comics), and it is still commonplace for fan authors to forbid the online circulation of their artwork, as well as ask for consumers to burn fanworks after consumption.
Until today, several other cases have been tried in relation to fanworks, particularly in the United States. In the majority of cases, the judicial consensus seems to side with fan creators, often citing the transformative nature of their works. However, legal action against fans typically takes place outside of courts and often results in decreased fan engagement, precisely to the original author’s disdain.
This should raise a few questions. Is it okay to allow fans to transform a corporation’s work, as long as it does not tarnish the messages the corporation wants to communicate? Or even, is it okay as long as it drives profit across all demographics? Finally, what does fandom tell us about acquiescence, and to what extent can fan creators express themselves?
Fandom and the ethics of intellectual property law
While fan creators in the United States are protected by the First Amendment and the law on transformative works, the same does not follow for creators based in the United Kingdom. In particular, a creator of derivative work can only publish it with the express permission of the copyright owner. However, this does not happen in practice, leading to an ‘as of right’ transformation of the original work. As such, despite there not being explicit protections for the creation of fanwork, authors rarely interfere and precedent shows that fanwork is often transformative enough to not constitute infringement.
Of particular importance is the fact that the majority of original authors, unlike the examples above, embrace fandom rather than regulate it. This is not a surprise, as an active fandom, has a proven increase in the consumption of the original medium and the purchase of merchandise. Lee and Kim argue that an active fandom adds value to an IP, particularly increasing its strength as brand. As such, the fandom is allowed to develop into an informal, self-regulated system, with minimal interference. Access to online shared spaces has made it easier than ever for fans to come together and consume their favourite content, and the inaction of authors should prove that fan creation is accepted and even encouraged – that is, only when it is to the benefit of the IP.
Quite strategically, original authors and owners often acquiesce to the publication of small-scale fanwork. However, the creation of large-scale projects, such as unlicensed enterprises, as well as the creation of obscene content, such as the controversial Pokemon fan comic, have been met with legal action. From this we can understand that original works cannot be appropriated for one’s own monetary gain, falling in line with the IP regime, and that the original work cannot be transformed to what could be deemed as, anti-normative or immoral content.
Here, it is helpful to look at the connection between IP and morality. For instance, the Paris Convention forbids the filing of ‘trademarks contrary to morality or public order’, while Japan has a blanket ban on the distribution of obscene content. Despite the non-existence of a definition of morality or obscenity, we are still to understand that the creation of explicit fanwork, with particularly fringe themes, is considered immoral, as was upheld by the Japanese courts.
We need to consider the implications of such decisions. The legal standing of obscene content and pormography has been debated over the years by legal experts. For instance, Ann Bartow convincingly argues that the copyright of pornography has resulted in the commoditisation of sex, and subsequently the harm of both the participants and the consumers. However, despite being an IP-protected material, we need to remember that fanworks are not created by the original authors. Where the work is transformative, the fan creators are not, or ought to not be, under any duty or obligation to communicate the moral values of the original author. Any such obligation would defeat the point of fandom, which is to provide creators a space for free expression – and restraining a fandom can mean losing it completely.
Conclusions – and some thoughts on the study of law and fandom
Fandom is constantly evolving. It is only in the last few years that creators have realised the advantages of having a fandom, transforming it from an informal shared space to a strategic asset. This should concern not just fans, but also scholars who are interested in IP law and morality. What does the transformation of fandom tell us? Is it reasonable to expect fans to self-regulate, or is authority necessary in such a space? Would it be at all reasonable to create law on fan works, or is it better to allow the existence of unspoken rights?
To finish this post, I would like to highlight the involvement of legal scholars and practitioners in the fight to protect fan creators’ rights. Groups in the United States, such as the Organisation for Transformative Works and the Electronic Frontier Foundation have provided legal support and intervention for fan creators, while the field of fandom studies is constantly growing with dedicated authors and journals. By beginning this discussion, I also wish to add to this field, and I hope I have encouraged at least a few readers, if nothing else, to critically assess the media they consume.