As fanworks have become more popular and the concept of fanwork creation has become more mainstream, the legality of fanworks has become a popular topic for media stories and blog posts. Some of these stories reflect understandings of American copyright law that are muddled or just plain wrong. Writers--particularly those focused on recent examples of "commercialized" fanworks--ignore or under-emphasize copyright's fair use doctrine, or look for ways to combine fanwork creation with media markets. One common trope, lately, has been to suggest that fanwork creators can, or should, obtain licenses before creating fanworks. After all, the argument goes, many authors and other media creators now recognize the positive value of fanworks, and would be delighted to give permission for fans to make fanworks. So why not have more licensing regimes for fanworks, where copyright holders give fans permission to make fanworks, probably in exchange for a fee or a share of the fan's proceeds if they want to commercialize their fanworks?
Here's why not -- licensing is neither legally necessary nor is it favorable to fans or fan culture for a number of reasons.
Licensing is unnecessary, especially for fans who do not want to commercialize their fanworks.
The American copyright doctrine of fair use favors noncommercial transformative works. The fair use doctrine is an exception to copyright infringement, and it provides people with a right to base their works on copyrighted works without infringing copyright. The factors considered in determining whether a work is a fair use--that is, noninfringing--include whether it transforms the meaning or purpose of the original, whether it's commercial or noncommercial, how much of the original work it copies, and whether it serves as a market replacement for the original. Because commerciality of use is one consideration in the fair use analysis, fans who want to try to make money from their fanworks face a more difficult legal question, but if their works don't create market competition with the original, they still may constitute fair use. But noncommercial transformative works -- the kind hosted on the AO3, for example -- are generally protected from infringement by the fair use doctrine.
Licensing invites censorship.
Licensing requires either seeking permission from a rights owner, or creating a work in line with a set of permissions that the creator has set out. In a past post, we discussed how Kindle Worlds' licensing system allows Amazon to restrict what fans can create in that setting, and that's only one example. Fanworks provide a way for fans to express things that the original creator didn't express, and even the most fan-friendly rights holders may not like what every fan wants to create. Licensing schemes may want fans to “celebrate the story the way it is,” not explore ways in which it might be different. But that takes away the freedom that makes fanworks so vibrant, innovative, and even potentially critical of the originals works' approach to sexuality, race, politics, or any number of other topics.
Licensing discriminates against those with low resources.
Licensing generally also involves a financial exchange --paying the rights holder, sharing proceeds, or owing some other sort of payment to the rights holder either for every work or for works that meet certain criteria (such as reaching a pre-determined amount of financial success). Even a small fee creates a barrier to creation that can be particularly detrimental to fans with fewer financial resources, young fans, and struggling and beginning artists, many of whom rely on fanwork creation to hone their crafts.
Licensing creates psychological and practical barriers to fanwork creation.
As OTW Legal's Rebecca Tushnet has been saying for years, creativity is often spontaneous and unpredictable, and if people have to ask permission before writing 500 words about Harry Potter, they will make other plans. This means many fanworks simply won't get made under a licensing system. This barrier to creation is especially strong for younger fans and those who doubt their political or expressive power--the very people who most often use fanworks to discover themselves, talk back to culture, and benefit from the support of fan communities.
Licensing undermines fan cultures.
Licensing invites commercialization of fanworks and undermines the "gift economy" that brings many fans together. It makes fanwork creation a transaction rather than just a conversation, and disturbs fan ecosystems.
Licensing hurts the law.
Finally, and importantly, the existence of widespread licensing for certain kinds of fanworks could warp perceptions of the fair use doctrine, which explicitly (and importantly for free speech!) exempts fair uses from the need for licensing and already exists to provide a space for fanwork creation. Some courts have held that when a licensing market exists, failure to obtain a license makes a use less likely to be fair. But even when licensing markets exist -- as we've seen above -- they do not provide the sort of freedom that the fair use doctrine is designed to provide.
These are only a few illustrations of why the OTW does not support a move toward licensing of fanworks. For more on the OTW's views about the legal framework for fanworks and the drawbacks of licensing regimes, see the document we produced addressing why any change in copyright law should favor freedom to make transformative works.
OTW's Legal Committee works on behalf of fans and fandom to make sure our voices are represented in discussions on copyright reform and they are available to answer individual fans' questions.