As I sat in during one of the many Westlaw training sessions this year, I heard rumors that the company instructor and research guru John Lim was a part time actor. A quick trip to IMDB confirmed that John Lim played Hikaru Sulu in a fan fiction series named Star Trek New Voyages: Phase II. With the proliferation of the Internet, it has become easier than ever before to have access to other fans of a certain work and as a result, create alternate versions of their favorite works together to share with the world. However, should this be allowed? As the original creators no doubt have spent pain stacking hours developing its plot and characters, they should have a legitimate right to be worried that such fan fiction could not only besmirch their brand’s reputation but also may deprive them of potential revenue. On the other hand, the science and especially the arts both have a long tradition of using original works as a platform for new creations or adaptations. As a result, balancing the interest of the creators of an original work while not stifling creativity is crucial to fully understanding the conflict that fan fiction potentially presents to the entertainment industry.
This paper outlines the basic provisions of copyright law, examines the effects of fan fiction, and provides insight to whether fan fiction of series like Star Trek is a copyright violation through a comparison to cases that we have studied this semester. Basics of Copyright Law
Under the US Constitution Article 1, Section 8, Clause 8 “Congress shall have the Power… to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Since its enactment in 1790, there has been a longstanding debate over what works are protectable, how long the protection lasts, and what is considered an infringement. While the requirements for copyright protection seem straightforward, the nature of the artists being inspired by the works around them has muddied the waters of when exactly a copyright violation has occurred. To qualify for copyright protection, the work must meet three basic requirements: (1) copyrightable subject matter; (2) fixation in a tangible medium of expression; and (3) work must originate with the author. Unlike the clarity of the meaning of a tangible medium, the requirement of originality can develop a dual meaning when a derivative work such as Star Trek comes into play. Courts will focus in such cases whether the new work has contributed anything new to the original. Justice Holmes’ discussion in Bleistein v. Donaldson provides some insight to the above test: “Others are free to copy the original. They are not free to copy the copy.” In other words, the courts expect creators of such derivative works to create something distinctive from the original principally in its expression of a similar concept while avoiding plagiarizing from others. In the next sections, I will examine how a copyright is established, what rights are granted to the owner of a copyright, and what aspects of a work are protected under copyright. Establishing Copyright Protection
As mentioned earlier, there are three basic qualifications that a work must meet: (1) work must originate with the author; (2) be in a tangible medium, and (3) be independently created. With the passage of the Berne Implementation Act, a work is protected automatically whether you place a notice on it or not. However, there are benefits to place a notice on your work such as preventing the possibility of someone using the innocent infringer defense, which occurs when an accused infringer claims they were never aware of the existence of similar expressed concept. While copyright protection is automatically created, one cannot issue a lawsuit for infringement without first registering the work. Typically this...