I represent Rebecca Rosen, the registrant for morethanbrothers.net (the “Website”), who has referred your May 28, 2010 letter to me for reply.
Ms. Rosen received your letter yesterday, while she was volunteering in the disaster recovery effort surrounding the Detroit area. While a more detailed reply to your letter is forthcoming after the holiday weekend, we cannot agree that the Website content infringes on any of Chuck Shurley’s rights.
First, it is our understanding that Mr. Shurley (writing as Carver Edlund) transferred all rights in the Supernatural works, save for movie and television adaptation rights, to Flying Wiccan Press. As he is not the owner of the exclusive rights at issue, he has no copyright interest to protect. Nor, under Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), does he have any protectable interest in the attribution of the Supernatural series.
Second, Ms. Rosen informs me that she believes that Mr. Shurley’s interest in this matter is more in the nature of romantic disappointment than in any true interference in his rights. The unappealing details of Mr. Shurley’s conduct would of course be an issue if he were to pursue this matter further. Moreover, Mr. Shurley’s statements to Ms. Rosen constitute both acquiescence and a grant of a nonexclusive, royalty-free oral license, which under Rano v. Sipa Press, 987 F.2d 580 (9th Cir. 1993), is not revocable until the 35-year period has passed (and in the case of a license to create derivative works is irrevocable).
Third, the materials on the Website are transformative fair uses of the Supernatural works. All the fair use factors favor the Website.
(1) The Website features critiques, in the form of fiction, of the sexual and racial messages contained in Shurley’s novels. More generally, fan fiction adds new meaning and new purpose distinct from the original. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994); Suntrust v. Houghton Mifflin Co., 252 F. 3d 1165 (11th Cir. 2001). In addition, the Website is entirely noncommercial, which independently favors a finding of fair use regardless of transformativeness.
(2) Although the nature of the work is not an important factor when evaluating transformative uses, the Supernatural series is published and thus Mr. Shurley has already had a chance to reap the reward from his work, favoring a finding of fair use. Arica Inst. v. Palmer, 970 F.2d 1067, 1078 (2d Cir. 1992) (explaining that the plaintiff's work was “published work available to the general public,” which favored the fair use defense).
(3) The Website takes only limited and reasonable portions of the Supernatural works, which at 60 published volumes spans thousands of pages.
(4) The Website does not interfere with the market for Mr. Shurley’s works. Even if the noncommercial Website were not entitled to a presumption of lack of harm under Sony, 464 U.S. at 451, and even if the fact that the books are out of print did not show a lack of market harm, Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1264 n.8 (2d Cir. 1986), it is well established that Mr. Shurley does not have rights in the market for transformative works such as those depicting a sexual relationship between Sam and Dean. See Suntrust, 252 F.3d at 1270-71 (finding that the portrayal of homosexuality in an unauthorized creative work based on Gone With the Wind had “special relevance” for the fourth fair use factor); Mattel, Inc. v. Pitt, 229 F. Supp. 2d 315, 322 (S.D.N.Y. 2002) (“[t]o the Court's knowledge, there is no Mattel line of ‘S & M’ Barbie”).
For these reasons, in addition to any other defenses that the Website might assert, we cannot agree that the Website infringes or violates any of Mr. Shurley’s rights. Nevertheless, we would consider any evidence you may have that you believe supports your contentions.
Mara Daniels/Organization for Transformative Works