Learn more about protecting fan fiction in this article written for the Denver Journal of International Law and Policy, Winter 2015 edition, by Samantha Peaslee.
Susan sits down at her computer, a stack of her favorite books next to her, and begins to write. Dumbledore and Gandalf are sitting calmly in the Leaky Cauldron, wondering about the mysterious stranger that called them there. As they wait, Captain Kirk, Professor X, and George Clooney join them at the table, all with the same mysterious note, calling them together to ask them for help. Suddenly, a tall, beautiful woman walks into the Leaky Cauldron with a more normal-looking
girl next to her, looking distraught. The beautiful woman introduces herself as Mary Sue, and then announces dramatically that she and her friend need the help of these men to save the world.
Hypothetical Susan is one of the thousands of fans who write fan fiction. Although fan fiction is not a new phenomenon, the Internet has made writing and reading fan fiction more accessible and popular. Now, certain databases are devoted exclusively to fan-written works that reimagine books, movies, television shows, comics, and even real people. With the overwhelming number of fan fiction written and posted on the Internet, the owners of the original works cannot help but take notice. With the rise of Internet fan fiction came the simultaneous rise of cease and desist letters to fans and website operators. A small minority of owners, such as Anne Rice, expressly forbids fiction based on their works, going to the extent of sending regular cease-and-desist letters to the managers of fan fiction databases as well as authors. Overall, these cease and desist letters do not seem to curb the increased popularity of fan fiction, nor have they led to any court cases. Some owners choose to forbid only select fan fiction, such as homosexual depictions of heterosexual characters, commercial fan fiction, or fan fiction that strictly copies large portions of works. Other owners of original works have either explicitly or implicitly approved fan fiction. J.K. Rowling, for example, has generally tolerated non-commercial and web-based fan fiction based on her characters. Paramount, which owns the Star Trek franchise, ultimately decided not to pursue legal action against fan-writers, even when it does not approve of the fan fiction. Owners of original novels, television stories, or movies (“rights owners” or “owners”) are adamant against fan fiction because it is almost certainly a violation of an owner’s intellectual property rights. However, Internet fan fiction raises unique issues for these owners. Despite most intellectual property rights being territorially bound, activities on the Internet generally are not.
When the original work is from one country, the fan-writer in another, and the fan fiction is on the Internet, it creates a unique conundrum for both the rights owners and the fan-writers in ttempting to determine the legality of the fan-writers’ actions and each party’s respective rights. This difference is made especially poignant when the countries involved are civil and common
law nations. This paper will take the hypothetical case from the first paragraph of this paper and attempt to determine what would happen if any of the rights owners sued Susan under either U.S. or Japanese intellectual property law. As the two countries that are arguably the largest producers of fan fiction, as well as two examples of different cultural and legal mentalities in regards to intellectual property, examining the reactions of these two states may have very real impacts on fans and rights owners in the future.
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