IPIL National Conference

COPYRIGHT AND THE COMMERCIALIZATION OF FANFICTION

JACQUELINE D. LIPTON
Baker Botts Professor of Law
University of Houston Law Center

Abstract

While fanfiction communities existed before the advent of digital technologies, the rise of the Internet created a space for the explosion of fanfiction based on popular television shows, movies and books. Courts have not yet been asked to rule on copyright questions related to fanfiction communities, although social norms and the attitude of market players suggest that these activities should be classified as fair use provided they are noncommercial. Even some commercialized works that originated as fanfiction have been tolerated by copyright holders without threats of legal action. The various commercial derivative works that originated as Twilight fanfiction are good examples of this: for instance, the bestselling Fifty Shades of Grey and Gabriel’s Inferno trilogies. Recently, Amazon.com has released a new platform for fanfiction authors to commercialize their works and sell them via its Kindle Worlds program. Kindle Worlds relies on licenses with copyright holders to create derivative works based on their protected content. This article examines the commercialization of fanfiction generally and its implications for the derivative works right and the fair use defense under copyright law, with particular reference to Amazon’s new fanfiction initiatives.