Introduction to Legal Purview
A product of curiosity and imagination, the concept of ‘fan-fiction’ now has its own space over the web. Merriam Webster defines it as ‘stories involving popular fictional characters that are written by fans and often posted on the Internet’[1].People often abbreviate it as fan-fic, fan-fi or even ff. It does not happen tobe a recent phenomenon, per se. Initial usage of the term was seen in 1939, whereas in the 60s, it was popularized by the ‘Star Trek’ fan magazine. Since then, the concept has built a separate fan-base for itself.
It is quite clear that as soon as the author pens down his/her fan-fiction, the copyright laws come into play. The (Indian) Copyright Act, 1957, pursuant to the amendments in 1999, 2002 and 2012, fully reflects the Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention, to which India is a party. India is also a party to the Geneva Convention for the Protection of Rights of Producers of Phonograms and is an active member of the World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organization (UNESCO).[2] With reference to the agenda that we are dealing with, Section 2 clarifies the ‘interpretation’ of the act, with clause (a) stating that;
In this Act unless the context otherwise requires –
(a) “adaptation” means –
(i) in relation to a dramatic work the conversion of the work into a non-dramatic work;
(ii) in relation to a literary work or an artistic work the conversion of the work into a dramatic work by way of performance in public or otherwise;
(iii) in relation to a literary or dramatic work any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book or in a newspaper, magazine or similar periodical;
(iv) in relation to a musical work any arrangement or transcription of the work; and
(v) in relation to any work ‘any use of such work involving its re-arrangement or alteration.[3]
The highlighted terms from the act cover a wide range of various forms of work involving, literary, dramatic, musical or any other artistic work. This further clarifies ‘why’ fan-fictions attract copyright and trademark laws in India. There are not a lot of Indian authors that cover and write fan-fictions. However, we have a few cases globally, that laid down substantial judgements with regards to the fan-fiction and the debate of ‘fair usage’ that revolves around it.
Two significant tests laid down the copyright-ability of characters; the first was in Nichols v. Universal[4], The Court held that copyright protection cannot be extended to the characteristics of stock characters in a story, whether it be a book, play, or film. The second test was laid down in the 1954 case, Warner Bros. Pictures v. Columbia Broadcasting System[5], wherein the court had held that the characters would not come under the copyright protection until the character really constitutes the story being told” and is not merely a “chessman in the game of telling the story.” The said category of fan-fiction falls under the ambit of ‘derivative’ work since they are taken from someone else’s creation and already have a ‘trademark’ name to themattracting the liability under ‘Trademark dilution’. A trademark proprietor has the selective option to utilize, or to permit the imprint in order to maintain a strategic distance from any disarray to its client and to keep others from benefitting off of the proprietor’s licensed innovation. The primary question in a case of an alleged trademark infringement is whether there is a likelihood of confusion for customers.[6] The question of confusion is obvious since fan-fictions are created out of a fairly popular character/s in order to attract and cater the curious audience that seeks to know more. The vulnerability of fan-fictions can be understood by the fact that ‘Moral rights of an author empowers him to take action against any mutilation, distortion etc. of his copyrighted work even after the copyright in the work has expired’.[7]
Analysis
The need to discuss this arose from the popularity of it and secondly, due to the unfair usage. Walt Disney has to use ‘trademark dilution’ to stop the usage of their characters like Snow White and Sleeping beauty in pornographic films. This not only infringes the copyright but also deteriorates the character, which is not healthy/promotional in any way. The original author of a work faces another problem when fan-fictions are released online, for commercial purposes. This defeats the terminology behind the term ‘fan’, prefixing fiction. The original purpose was to promote the original content by using your own imagination, which has clearly changed over the years. The cut throat competition in every field also contributes to the degrading fan-fictions that are being made.
Fan fictions can be exempted from copyright infringement provided they prove to be a fair use under the copyright law. The four factor test analysis states:
- Purpose of the work: They are generally created by fans to experiment their favourite characters in their imagination.
- Nature of the work: Fan fictions usually do not work for profit.
- Amount of the work copied: Famous characters from books, novels and movies are used in fan fictions in a totally new horizon of adventure.
- Effect on the original work: Fan fictions do not attempt to compete with the original work leaving no adverse effect on the original work.[8]
It was in the case of The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House and Ors.[9], that Delhi High Court made a reference to the four factors laid down by Congress[10] as especially relevant in determining whether the use of a copyrighted character was fair.
Conclusion
Previously, we have seen a number of copyright controversies over YouTube, where the giant music production houses have been quite active, claiming their content. Hence, it all comes down to the purpose and the method of the copied work that matters. In order release a work, that is a fan-fiction, one must qualify the test analysis of fair usage of work. Although, there are very limited cases in India that cover the above-mentioned purview, but the emerging nature of the field calls for this discussion. Sufficient amendments and a wide ambit of the Indian Copyright Act seems to be a strict and rational act for any upcoming cases that shall fall under the ambit of ‘fan-fiction’.
By-
Vaibhav Chaturvedi
Lloyd Law College
[1]https://www.merriam-webster.com/dictionary/fan%20fiction.
[2]https://www.mondaq.com/india/copyright/655852/copyright-law-in-india-everything-you-must-know
[3]Copyright Act, 1957, §2
[4]45 F.2d 119 (2d Cir. 1930).
[5]102 F. Supp. 141 (S.D. Cal. 1951).
[6]India: Legality Of Fan Fictions, ZoyaNafis, Mondaq, 21st October 2014, available at https://www.mondaq.com/india/trademark/348370/legality-of-fan-fictions.
[7] Copyright Act, 1957, §57
[8]https://www.mondaq.com/india/trademark/348370/legality-of-fan-fictions
[9]I.A. 9823/2005.
[10]17 U. S. C. §107