Fans can
be really crazy!
They go
crazy collecting posters, stickers, toys, dolls, comics, books and other
merchandise of their favourite characters and personalities. Eg: Superman, Batman, Barbie, Ben10, Baahubali,
Chota Bheem, Angry Birds, Movie Stars and Sports Personalities etc. There are still
crazier fans, who anxiously stand in long queues before the book stores on the
day of release of their favourite Books and Comics such as the Harry Potter
series, Twilight series, Jeffrey Archer novels, etc. Likewise, you can find
large group of youngsters before the cinema houses on the day of release of
movies of their favourite stars. Fans are everywhere, fans are diverse. We can
find them in cricket stadiums, auditoriums, Theatres, Book Fairs and so on.
What is
fan fiction?
Fan
fiction is stories
and novels written by fans about characters or settings from an original
work of fiction and includes characters from movies, TV shows, popular sports
stars etc. Sometimes, it’s created to criticize a character in their own
perception.
Such fans
are so much in love with the characters and personalities that they want more
out of them and engage in fan fiction. Some believe that Fan fiction is
another wonderful new genre. The bestselling “Fifty Shades of Grey began as Twilight fan fiction”. Fan fiction makes a
work popular; promotes the original work; often serves as free promotion,
keeping audiences interested and entertained between new releases. They also
create awareness of the original work.Copyright
and Fan Fiction
Fan
fiction usually falls under "derivative works" of the copyrighted
work. Fan fiction may be categorized as derivative works because they use the
copyright protected characters from someone else's creation.
In Eastern Book Company v. D.B. Modak, the Supreme Court referred
to “derivative works” as a contribution of original material to a
pre-existing work so as to recast, transform or adapt the pre-existing work.
Fan
fictions can affect moral rights of an author if the work so created mutilates
or distorts the original work or the reputation of the author. As per the
law of Copyrights, the author can take action against any mutilation;
distortion etc. of his copyrighted work even after the copyright in the work
has expired.
Fan
fiction writers do not usually intend to sell their work for commercial benefits.
If they try to sell, it will be infringing the copyright of the owner.
Warner
Bros. Entertainment, Inc. and J. K. Rowling v. RDR Books (the Harry Potter
Lexicon case)
In the
present case, the defendant was sued for copyright infringement for attempting
to publish the print version of his online lexicon (a free online guide to
the Harry Potter fictional universe,) The plaintiffs argued that
defendant's attempt to publish for profit a print facsimile of the Harry Potter
Lexicon, constituted an infringement of their copyright and was not protected
by the defense of fair use.
Plaintiff
contented that she herself plans to write a Harry Potter encyclopedia and that
the publication of a similar book before her own would hurt the proceeds of the
official encyclopedia, which she plans to give to charity.
The Court
held that "Plaintiffs have shown that the lexicon copies a sufficient
quantity of the Harry Potter series to support a finding of substantial
similarity between the Lexicon and Rowling's novels".
This case
clearly shows that fan fictions can only be tolerated if they do not work for
commercial benefits. Dire consequences could be faced by fan fiction
authors in cases where they publish their work for commercial benefits.
Fan
fictions can be exempted from copyright infringement provided they prove to be
a fair use under the copyright law.
In the
case of The
Chancellor Masters and Scholars of the University of Oxford v. Narendra
Publishing House and Ors., the Delhi High Court
emphasized the four tests analysis laid down by Congress in 17
U. S. C. §107 as especially relevant in determining whether the use of
a copyrighted character was fair :-
What are all considered as Fair use?
Fair use
considers four conditions:
1.
Purpose of the work
2. Nature
of the copyrighted work
3. Amount
of the work copied
4. Effect
on the original work
It is
clearly evident from the above analysis that fan fictions can be treated as
fair use under the copyright law.
Fan
fictions are healthy as they give opportunity to amateur creators to create the
world of their imagination. Though lot of authors have approved Fan Fictions,
lot many take it as a lame practice.
In India,
the author retains their rights over a work for the entirety of their life,
plus the 60 years that follow their death. This varies from country to country;
if a thing is in the public domain then it can be used freely in any work. This
includes characters such as our characters from our epics, kings, mythological
characters like Hanuman, Ram, Bheem, Robin Hood, Hercules, Tarzan
and Dracula,
Cinderella, Snow White, etc., (which is why there’s an almost constant
stream of movies, books, and video games starring these characters).
PUBLIC DOMAIN CHARACTERS
There are
many public domain characters that are famous because of features added by
later works. The most famous example is Universal’s hold over
Frankenstein’s Monster. Universal invented their own ‘look’ when
putting the monster onto the big screen. This means that you can write about
Shelley’s monster, but if it has green skin, a flat-top head, and/or bolts
through the neck, then you’re encroaching on Universal’s copyright.
Likewise the famous “Chotta Bheem” is also a new version of the original
legendry character “Bheem”.
In some
cases were the work is transformative and not essentially derivative
i.e. to transform the copyrighted aspects into something new, then it’s likely
to be not termed as copyright violation.
Finally,
as long as you don’t intend to sell your work; mutilate or distort the original
work; most are happy to allow fan fiction to flourish. Nevertheless, it’s
always a good idea to begin with a disclaimer identifying the author of the
source material.
