What if? An overview of Fan Works and discussion on the legal impact of Generative AI
It All Begins Here
I. Introduction: Advancement in Technology threatens Fan Works
Human created fan fiction and films, the modern continuation of our long-standing history of oral storytelling and narrative, are at risk of being of being swept aside due to technological advancements in artificial intelligence.[1] Since the Copyright Act of 1976 fan works have fallen into a grey area of the law[2] with no existing case law in which they are afforded clear protections.[3] Currently, the determination as to if a given fan fiction or film is infringing is largely informal, being based on the preferences of copyright owners and the guidelines set forth by fan communities.[4] The relationship between each party is fragile and is subject to the parties involved in the creation of a given fan work and the copyright holders or creators of the original work it is based on.[5] The fair use doctrine, under the Copyright Act, further complicates this relationship as it is the go-to defense when there is an attempt to determine if a derivative fan work is infringing.[6]
The advent of generative artificial intelligence, hereafter referred to GenAI, will have a negative legal impact on this relationship as well as the applicability of the Fair Use Doctrine to fan works. This is due to the use of GenAI in the creation of fan films and fan fiction and how both GenAI created works and fan created works may be derivative. This article analyzes the historic and modern relations between copyright holders and fan creators in order to explore how this area of law may be negatively impacted by GenAI. This law review article proposes that there is a way to protect creative undertakings, like fan works, by distinguishing the applicability of the fair use doctrine to only amateur human created derivative works, which would help to preserve humanity's long-standing history of oral storytelling and narrative.
A. One Hundred Years Later
Nosferatu, a defining motion picture for the horror film genre, was nearly burned at the stake for being a derivative work. Produced in 1922, the film was an unofficial adaptation of Bram Stokers novel, Dracula, and may be considered to be the first fan film to be sued for copyright infringement.[7]
When the film was initially released it drew attention from the estate of Bram Stokers, which proceeded to pursue legal action against the film.[8] As a result, nearly every copy in existence was burned and the few surviving copies of the film went on to redefine the entire horror movie genre.[9]
Modern renditions of fan fiction and fan films, a continuation of early works such as Nosferatu and traditional oral storytelling, may be negatively impacted due to artificial intelligence and the lack of case law and statutory protections afforded to human created fan works. Issues of copyright infringement for these types of works have existed for over a hundred years, but the introduction of GenAI creates a vulnerability for such works that did not exist before. Through analyzing the legal history of fan fiction and fan film we can better understand the impact of GenAI on this niche type of artistic expression and develop a framework in which to further protect such creative undertakings.
In addition to exploring the historic and modern relationship between fan works and copyright holders, Part II of this Note explores the human psychology behind the creation of fan works and the connection of fan works to important human traditions of oral narrative and storytelling. Part II also investigates the significance of changing technology to the creation, power dynamics, and legal history surrounding fan works and copyright owners. Part III of this Note relates the information explored in Part II to legal implications of derivative works and the fair use doctrine while encompassing present legal arguments surrounding GenAI application to fan works. Part III of this Note will outline and suggest a possible solution to issues of copyright infringement and fan work on the basis of adding to the existing rendition of fair use.
II. Background: Oral Storytelling
Prior to any copyright statutory and case law, the practice of the retelling of stories—with a twist from the original—has been practiced. The tradition of oral storytelling is considered to be the first iteration fan created works.[10] In early human society oral repositories were individuals that were tasked with mentally recording oral traditions and histories.[11] By preserving history and culture in the forms of ballads and folktales the rise and fall of civilizations were recorded. Even Romeo and Juliet, written by William Shakespear, can be considered a derivative work as it is based on The Tragical History of Romeus and Juliet, by poet Arthur Brooke.[12] Much of our present understanding of human history stems from these historic derivative tales. Respected positions in society, such as bards, traveled the world and shared their histories and cultures through oral storytelling.[13] In modern times oral repositories are incorporated into artistic expression[14] and modern storytellers, fan fiction and fan film creators, make changes to original works in the spirit of sharing stories and investigating outcomes not explored in original works.
A. Importance Of Curiosity
Humans are curious by nature and are hardwired to be inquisitive and to seek answers. This is likely an evolutionary trait that allows us to explore world around us to improve our understanding of the unknown.[15] Building off this line of thinking, curiosity is also a justification for why fan works are created in the first place.[16] If a fan of a copyrighted work was ever curious about what happened to Frodo after the Lord of the Rings series, they may fill in the blanks the original creator did not address through their own creation of a fan work. Humans are rarely satisfied when something we care about comes to an end and because of this our curiosity forces us to ask, “What if?” This question of, “What if?” is why fan works such as fan films, fan fiction, and other types of derivative creative works exist.[17]
Fan works are essentially taking an already existing story and applying the “What if?” question to create something different and new. Two examples falling under the umbrella of fan works are fan fiction and the subcategory of fan films, both of which are vulnerable to GenAI abuse.[18]
B. Fan Works as Fan Fiction and Fan Film
Fan works have been defined as, “any kind of written creativity that is based on an identifiable segment of popular culture, such as a television show, and is not produced as ‘professional’ writing.”[19] Essentially both fan fiction and fan film must draw upon an already existing expression of an idea and expand upon it, but there are some elements to fan fiction and fan films that must be present and are shared by all fan works.
The first is that fan works are user-generated content, meaning that amateurs take from professional works and alter or remake them.[20] The second element is that there is fandom associated with a given fan work.[21] A fandom is a group of fans that share information and thoughts on specific professional work, such as a novel or movie. Fandom is a community that centers around exploring the “What if?” question as it relates to existing professional work. The third is that all fan works must be free and not-for-profit. The fourth is that a specified fan work makes use of a fandom canon in its creation.[22] Canon—for the purposes of fan works—is everything, from the events to characters, which take place in a given creative work.[23]
C. Fan Films as a Subcategory of Fan Works
Fan films fit into fan works as a subcategory.[24] The aforementioned four elements for fan works are still applicable to fan films, but there are some differences that set fan films apart from other subcategories of fan works.[25] Firstly, fan fiction content encompasses a much wider variety of ideas that can be expressed by fan fiction creators when compared to fan films. This is in part due to fan fiction having a sexual component that just cannot be explored in film without a given film or production becoming pornography.[26] While this has not stopped some filmmakers from following through with production, it is much easier to take such approaches with written fan fiction works than in fan films.[27]
The second distinction between fan fiction and fan films is that the effort which goes into producing a fan film is much more than that of written fan fiction work.[28] Production costs, planning, and time invested are much more demanding when compared to writing fan fiction.[29]
The third difference is based on the audience. Fan films have the ability to move beyond their existing fandom communities to reach larger audiences. Fan films draw more attention from existing media outlets and the film industry itself.[30] For example, a fan film based on Raiders of the Lost Ark was played before a premiere screening of Lord of the Rings: The Two Towers.[31] That is not a typical audience for fan fiction work and clearly goes outside of the fandom community.
The ability of fan films to reach a larger audience does put some copyright holders on edge, making such creative fan works more susceptible to claims of copyright infringement.[32] While there is heightened scrutiny by copyright owners, existing power dynamics between copyright holders and fan work creators does allow for fan films to exist and for their dissemination.
E. Creation Process of Fan Works
Creating fan fiction is a simple process. As a fan fiction writer myself, creating a given fan fiction simply requires creativity and having the conviction to put pen to paper. The introduction of GenAI has further made it easier for fan fiction writers to create.[33] For example, any random google search of “fan fiction artificial intelligence creator” will return numerous websites that offer to create fan fiction, for free, based on whatever prompt an individual seeks to explore. Perchance.org is one such creation tool that makes use of artificial intelligence.[34] The following is an excerpt from the first two paragraphs of the GenAI created work based on a sample prompt,
In a vast, open expanse where the skies stretched for an eternity, a solitary dragon named Saphira soared. Her scales shimmered with the light of a thousand stars, reflecting the cosmos on her azure body. The wind whispered secrets to her as she glided through the night, her wings barely moving. The world below looked like a patchwork quilt of shadow and moonlit clearings, the occasional flicker of fire from a distant village her only companion. Her thoughts wandered to the humans, the creatures with whom she and her kind had once shared a sacred bond. The dragons had once been their guardians, their wisdom and power revered and feared in equal measure. Now, they were but whispers in the annals of history, their kin either slain or enslaved by the malevolent forces that ruled over Alagaësia. Saphira felt a pang of longing for the days when dragons roamed free and their riders were hailed as heroes.[35]
Through Perchance.org, it is possible to create an entire fan fiction chapter based on the book Eragon, by Christopher Paolini, within just a couple of minutes and an entire book in a single day. What would have normally taken years to write, think about, and to perfect was done quickly and efficiently with no overhead costs and minimal editing.
Creating a fan film is more difficult than creating a fan fiction novel. Fan labor—referring to the actual labor being done during the creation process of a fan work—as it relates to fan fiction may only require an individual’s creativity and a computer, whereas fan films may have to rely on expensive cameras, editing software, and include more people during the creation process.[36]
In turn, the increased difficulty in creating fan films has made it so that producers will secure capital via crowdfunding. As technology has improved, when the objective of an amateur fan film producer is to raise money for production, getting funding is easier to accomplish in modern society.[37] There are entire websites and communities centered around facilitating financing for fan film productions.[38] Examples include sites like GoFundMe and Kickstarter.[39] Just a quick search of fan films on GoFundMe will return over 500 results of amateur producers seeking funding.[40]
The introduction of GenAI as a creation tool also impacts film production and is already being used to facilitate the creation of commercials and films.[41] It is foreseeable that through the development of GenAI, expensive barriers, such as securing filming equipment, will no longer prevent fans from producing their own fan films in mass—as such equipment can be replaced with GenAI software—while the quality of such fan films will increase because of the implementation of GenAI.[42]
F. Power Dynamics
Copyright owners hold concerns that any legal actions taken against the fan creators and the fandom communities they operate in will create a scenario in which they will lose fans.[43] Such concerns can grant fans creators and fandoms some agency in the informal relationship between copyright owners and fan work creators.
Fans that go so far as to create fan films are generally the biggest supporters of a given copyrighted material and their original creator.[44] It is important to note that the term fan, when referring to those who create fan works, takes on a new meaning which is more closely aligned with the idea that fans are not just fans; they are the consumers of a copyrighted creation and free marketing agents that generate interest in an original work by creating their own works and spreading them.[45] It would not bode well for any copyright holder or creator to anger their free support groups, which in turn gives the fan communities the basis of their power in deterring legal actions against derivative fan productions and creations.[46]
Copyright holders and the original creators obtain their power via statutory law set forth in the Copyright Act of 1976 which seeks to “promote the Progress of Science and useful Arts.”[47] The Copyright Act gives copyright owners a set of rights that effectively grants them a limited monopoly for their work.[48] Copyright holders, by exercising their rights at their own discretion, can pursue fan works for infringement. If a fan work meets the definition of being derivative and does not fall under the protection of a fair use defense, fan work creators may be held liable for infringement.[49]
Copyright owners are also able to turn a profit based on their ownership rights, this will grant them access to more financial resources than your average fan work creator. The ability to profit from their creations allows copyright owners to go through expensive litigation against any possible infringement, litigation costs that fan creators may not be able to afford.
It is not a new concept that having more money equals more power and this concept should be applied to understand the power dynamics between fandom communities, fan creators, and copyright owners. To showcase the difference in financial resources we can reference the funding provided for Paramount Picture’s Star Trek production, Trek Into Darkness, versus Prelude to Axanar, a fan made Star Trek production, both of which started production around the same time. Trek Into Darkness had a budget of well over $100 million dollars and made roughly $467 million dollars at the box office. This is in stark contrast to the 1.3 million dollars Prelude to Axanar raised for production costs via crowdfunding and the nonprofit nature of fan works.[50]
As mentioned above, fan creators and copyright holders have an economic interest in which to base their bargaining power. Economic considerations stemming from technological advances have become an increasing concern for copyright holders.[51] As technology advances the practices of crowdfunding have become more widespread[52] while production costs for fan creators have decreased.[53] This may be seen by copyright holders as fan creators closing the gap in their financial leverage. Some copyright owners have claimed that such crowdfunding campaigns impedes their profits, as their fans are gifting money to unlicensed projects rather than spending it on their work.[54] Moreover, extensive crowdfunding efforts may be seen by copyright owners as a shift in the non-commercialization nature of fan works from amateur to professional works.[55] To put it bluntly any fan work that may have a negative financial impact on a copyright holder are generally stomped out[56] even if it their work is disseminated through not-for-profit media channels on the basis of their creation alone.
Fan works are created by the fans and for the fans. Copywrite holders are careful in their actions to not alienate themselves from their fans. The fans are not only their consumers but also their bread and butter; but when push comes to shove copyright owners will not shy away from bringing a case against fan works if they believe the stakes are high enough.[57] The advent of GenAI will only further fan creators’ ability to create and fund their projects leading some copyright holders to feel a sense of unease when it comes to fan works infringing on their original works.[58] While technology has advanced and changed the power dynamics between copyright holder and fan creators, the issue of the legality as it pertains to fan created derivative works is not a new struggle.
G. Copyright Infringement by Fan Creators
The film Nosferatu, released in the early 1900’s, may be considered as the first fan film to get taken to court for copyright infringement. Nosferatu was based upon Dracula, written by Bram Stoker.[59] Deemed to be the unofficial adaptation of the novel, Nosferatu shares some of the characteristics of modern fan films. Nosferatu was a low-budget production that was created largely in part due to Grau’s, a producer of the film, love of the occult and the novel Dracula. Grau’s passion for the occult stemmed from the horrors witnessed by himself and Europeans in World War I.[60] While the film tried to skirt around European copyright laws of the time, by making some changes to the plot and characters; when the estate and wife of Bram Stoker caught word of the work, they filed suit in German courts.[61] The result was that every copy of the film was ordered to be destroyed, but a single copy that made its way to the United States was outside of the European court’s jurisdiction and thus managed to survive. From this one copy, Nosferatu went on to be a defining work in the horror film genre.
Due to World War II, there are no surviving court documents, outside of some letters saved by the Stoker Estate. This makes it difficult to judge the importance and influence of Nosferatu on the legality of fan films.[62] Yet the ruling and mere existence of the case itself shows that the issue of copyright infringement alongside ownership rights has a long history and has always been of global importance, regardless of how technology has advanced in the 102 years since the film’s release.
Similar legal battles, mirroring that of Nosferatu, are still fought today. In 2014, Axanar Productions unveiled their Star Trek fan film via the media channel, YouTube.[63] The fan production, titled Prelude to Axanar, was a twenty-minute film based on a preexisting episode of Star Trek that was originally broadcasted in the ‘60s.[64] The prelude was meant to generate interest in helping with the production of a full-length fan film called Axanar. In order to raise money for the fan film, Axanar Productions ran a crowdfunding campaign that generated nearly $1.3 million for production costs.[65] When the fan film was released on YouTube it generated concern from Paramount Pictures and CBS, who had the rights to Star Trek, as in their mind Prelude to Axanar production values, attention to detail, and numerous uses of copyrighted work crossed the line from being an amateur fan film into the domain of professional films.[66] Paramount and CBS proceeded to take legal action against Axanar Productions as a statement against future derivative fan works that were more professional in nature of creation.[67]
Axanar Productions, in response to Paramount and CBS, argued that the studios had long tolerated fan works and that their fan film production was under the protection of the fair use doctrine.[68] Both sides eventually settled out of court after which Paramount released their own guidelines for Fan Fiction/Film.[69] Paramount’s act of releasing their own guidelines was largely due to the law governing fan works being a grey area and where the Prelude to Axanar film may have fallen on the “fair use spectrum.”[70]
After the settlement between Paramount Pictures and Axanar Productions, Paramount released their guidelines on fan works in relation to the Star Trek licenses they hold. In this guideline, Paramount sought to establish what our legal system has not, a detailed list of what they will consider when determining if a fan work, specifically fan films, is infringing upon their ownership rights. The guidelines can be found at https://www.startrek.com/fan-films, in which there are ten requirements fan film producers cannot cross.[71] Those requirements encompass aspects of fan films production such as fundraising and content. For example, any fan film that relates to copyrighted material owned by Paramount cannot raise over $50,000 via fundraising. Breaking these guidelines may result in Paramount acting against a give fan creator or production.[72]
Because of the lack of a ruling, as it relates to fan works and the fair use doctrine, amateur fan film producers do not turn immediately to the Copyright Act to ensure they will not get taken to court.[73] Instead, they focus on the prevailing social standards set forth within fandoms communities and the guidelines presented by copyright holders themselves to ensure they do not face legal repercussions.
Fandoms, a collective of fans that share information and thoughts on specific professional works, will set forth social norms for their community, allowing fandom communities to self-police the fan works generated within.[74] Generally, a fandom will ensure that fan works give credit to the original author, which mirrors some requirements for fan works drafted by copyright holders.[75] The use of disclaimers is also supported by fan communities.[76]
Moreover, fan work must be not-for-profit productions, or they will face outrage from fandom community members online and legal action from copyright holders.[77] This was seen when Lori Jareo wrote a fan fiction novel that was listed for sale on Amazon.[78] Her actions resulted in a cease-and-desist letter from Lucasfilms and being blacklisted by the online fandom community for Star Wars.[79]
H. Emergence of Artificial Intelligence
Generative Artificial Intelligence has achieved widespread global use. GenAI is a specific type or artificial intelligence that is distinct on the grounds that it not rule-based.[80] Not being rule-based means that unlike traditional artificial intelligence, which cannot learn or improve over time, GenAI can. By using a large amount of existing data online the GenAI models are capable of learning new patterns from existing data to create new content. In applying this working description to fan works, GenAI is taking digital repositories of novels and stories alike and uses those copyrighted materials to produce derivative works that may be infringing.
Concerns over the impact of GenAI on copyrighted materials have grown due to the recent technological advancements within the field of artificial intelligence. Creators and copyright holders alike are growing increasingly worried that AI will negatively impact their job prospects and financial stability.[81] Moreover, copyright holders are concerned with how companies that develop GenAI software are using their copyrighted materials to further refine and develop their software without permission.[82]
Artists are concerned because consumers, preferring to not pay for copyright works of art for commercial purposes, can just have artificial intelligence create what they need for free.[83] These concerns largely mirror the issues at play when looking at the traditional relationship between copyright holders and creators of fan work due to the nature of both being derivative. The fact that GenAI is being used in such fan works as a tool for creation further connects GenAI created works and those made by fans creators.[84]
GenAI is still a very new development that is changing every day. There are very few legal and legislative conclusions and rulings that we can apply to GenAI as it related to copyright and infringement, outside what has already been released by the United States Copyright Office.[85] This will soon change as courts handle more cases that bring up issues that pertain to some of the practices and implementation of GenAI.
Currently, there are multiple different class action cases being brought to court by different interest groups against several companies that develop and profit from GenAI software.[86] Specifically GenAI creates more concern than traditional artificial intelligence programs due to the nature of how the GenAI software is trained and developed. GenAI software is developed by training off of already existing information to create similar works.[87]
In Andersen et al v. Stability AI Ltd. et al the defendants copied over five billion images from websites to use as the training materials to further develop their GenAI software, called Stable Diffusion. Because this software was successful the company, Stability AI, was valued at nearly one billion.[88]
Because the software relied upon copyrighted material, within those five billion images, there may be valid claims of infringement in which to hold Stability AI liable. This is based on the argument that the work produced and created through GenAI is derivative work formed from the information taken from copyright materials. The fact that current copyright owners did not license or consent to their copyrighted materials to be used in such a manner opens up the potential GenAI to be held as liable for infringing upon the rights granted to copyright owners.[89] Under 17 U.S.C. section 106, the plaintiffs argue that they hold an exclusive right to their work, and Stability AI and other such companies violated those rights.[90]
III. Analysis: Derivative Works And Copyright
Since the first statute of copyright law, enacted in 1710 under the British Statute of Anne, copyright law has since developed in the United States to protect a wide range of mediums used to express not only written works but also films and software.[91]
In modern times Congress has been granted the ability to create copyright law under the United States Constitution for the intended purpose “[t]o 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.”[92]
Out of the intent to promote the arts the U.S. Copyright Act was implemented. In order to protect creators and intellectual property rights the Copyright Act had to define the rights granted to copyright holders as well as what types of work may infringe upon their exclusive rights. Thus, the Copyright Act grants copyright owners the exclusive right to distribute copies, reproduce their work, display their works, perform their works, and to prepare derivative works.[93] The term used to define a work based on a preexisting one is called a derivative work. The definition of a derivative work is:
“A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work.”[94]
As the basis for a fan work is a preexisting copyrighted creation, fan works may be largely classified as derivative creations. The nature of derivative fan works, such as fan fiction and fan films, is to infringe upon the rights of the original copyright holder, for it is the copyright holders exclusive right to prepare derivative works.[95] While the definition itself does not set all-encompassing boundaries as to what is a derivative work, it does set courts down the path of being able to consider what may or may not be derivative.[96]
There is no concrete answer to where courts draw the line when determining what derivative work. Since there is no hard answer courts must begin their analysis by looking at how a given derivative work is “recast, transformed, or adapted.” In looking at these characteristics of an alleged infringing derivative work a court is applying the Copyright Act. To better show how this analysis works in practice, let’s take a sequel of an original work as an example. The sequel of copyrighted work may, as a standalone work, not be derivative even if it is based on the preexisting copyrighted material, since the sequel will still have an original storyline or be based on new ideas. The meaning behind “recast, transformed, or adapted” is more about how the original work of authorship is transformed into other expressions of that idea, such as a novel being remade into a movie.[97]
What has been determined is that courts do not read section 106 of the Copyright Act as granting copyright owners complete control over any given derivative work, such as fan creations, and that fan creations built off an existing copyrighted material is not automatically derivative.[98] Courts need to balance human creativity expressed through secondary works along with protecting the rights of the copyright holder. Go too far in either direction and people may not be incentivized enough to create original works or too scared to promote the progress of science and useful arts by building off copyrighted material.
It must be clarified that what is protected is the expression of an idea and not the idea itself.[99] For example, the idea that humans are fighting in space to protect Earth is not protected, but the film or artistic mediums used to express the idea is. Moreover, the copyright holder has a right to create derivative works based on their expression of an idea, which is a legal argument in dealing with fan fictions and fan films, should a copyright owner seek to file for infringement.[100] The copyright owner can leverage this right to claim that a fan creator took away their opportunity to create a derivative work based on their original expression of an idea.[101] But this legal argument also allows for a counterargument from the fan fiction or fan film creators, which is that their creation falls under the protection of the fair use doctrine.[102]
A. Fair Use Doctrine
When it comes to fan works there is an undeniable truth that such creations are usually derived from existing works and copyrighted material. While a such disputes arising out of their derivative nature are a grey area of the law there is framework of an existing defense that can be evoked to protect fan works from copywrite holders.[103] The defense stems from section 107 of the Copyright Act and the fair use doctrine.[104] The four factors of the fair use doctrine are as follow:
[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[105]
The above criteria, set forth in section 107 of the Copyright Act, is not intended to be applied at face value but is instead a step-by-step examination that is applicable on a case-by-case basis.[106] No individual factor of the four listed is a deciding factor and courts will judge each accordingly.[107]
The first factor centers around the purpose and character of the use.[108] Court by identifying the intended purpose of a given work will determine if such work is protected by the fair use doctrine. Is the film used for educational purposes? Is the film commercial in nature?[109] The United States Supreme Court explored these types of questions as it relates to use and determined “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”[110] While the case this opinion is based on, Harper & Row Publishers, Inc v. Nation Enterprise, was not about films, the analysis of the Court as to the first factor places clear importance as to if the copyright holder received monetary harm based on if the derivative works purpose is commercial or not.[111] As fan films are free to those who seek them out, courts may consider fan films to be protected under the first factor of the fair use doctrine; for fan films do not redirect monetary compensation to their films from the copyright holder by their very nature.[112]
Along with looking at the intended use of copyrighted work, courts, for the first factor, take into consideration as to how transformative the work is.[113] Courts must investigate whether a work supersedes or supplants the original work’s expression or adds something new by altering the original expression in the new fan work created.[114] In Campbell, the Court determined the parody rap song by the 2 Live Crew was not infringing as it altered the original expression of the song “Pretty Woman.”[115] The Court in Campbell stated, “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”[116]
Fan works by nature draw upon an original source to be created, but generally they can differ significantly from the original. Fan film creators explore the “What if?” question by creating new plots, characters, or settings. To better showcase this let us look at the Lord of the Rings trilogy. What if instead of producing a film from the perspectives of Frodo and the other protagonists following the original plot of destroying the one ring, instead the fan film producers decide they want to create a film from the viewpoints of the opposing factions, like Sauron. A court may determine this to be transformative enough that the fan work would be protected by the fair use doctrine.
The second factor looks towards the nature of the copyrighted work; meaning the type of work the fan creator based their own work on.[117] Is the original work fiction or non-fiction? This is a question courts may ask while looking at the second factor. As most fan work subjects are based on works of fiction and “Courts have held that creative works of fiction are entitled to the highest level of protection” then the nature of the original work affords it more protection from derivative works made through fan labor.[118] This factor is largely in favor of the copyright holder, but some have argued that if the original work is published it should receive less protection as it is their nature to be widely distributed.[119] The more widely distributed an original work is means that the fair use doctrine will be applied, generally, in favor to protect subsequent fan works.[120] The opposite also holds true. If the copyright holder decided to not widely distribute their work, then a court may uphold a higher standard of protection for the original work.[121]
The third factor is centered around the amount and substantiality of the portion used in relation to the copyrighted work as a whole.[122] This means courts need to look at the amount of material borrowed from the original. Materials could be anything from dialog to the characters themselves. The court will essentially ask how many aspects of the original work were recycled into the fan work.[123] How much is taken is looked at more literally here, as in what material in the fan film was taken by copying verbatim from the original work.[124] “In general, courts will give more weight in favor of the copyright owner where the fan creator borrows heavily from the original work, and conversely weigh this factor in a different fan creators favor who adds multiple original elements and content while borrowing little from the source material.”[125]
Substantiality is more abstract when courts investigate the third factor and is largely dependent on the importance of the material in the original work. For example, a fan work on stormtroopers may be afforded more protection via the fair use doctrine when compared to a fan work on Darth Vadar.[126] Darth Vadar is much more important to the Star War franchise than a single stormtrooper and hence Darth Vadar, as copyrighted material, may be given greater protection under the law.
The fourth factor is based on the impact a derivative or alleged infringing work has on the market. This aspect looks at how a fan work would impact the marketability of the original work and may be considered to be the most important factor of the four.[127] Congress intended for the Copyright Act to incentivize people to create by allowing them a limited monopoly based on the expression of their work and ideas.[128] The fourth factor is to ensure that this ideal is not compromised.[129] In the situation where a derivative fan work takes a portion of the market from the original work then that fan work would not be protected by a fair use defense. Since it is the nature of fan works, such as fan fiction and fan films, to be free, they are noncommercial. As fan works are noncommercial it is up to the copyright holder to provide evidence that the use of a fan work is harmful to the original’s marketability.[130] This harm toward the marketability need not be manifested in reality, but “what is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists.”[131]
B. Impact of GenAI on Fan Works and Fair Use
GenAI software interrelates with fan films and fan fiction. GenAI is not only being used in the creation of fan works[132] but the output of GenAI may also be considered as derivative due to the generated content being based on preexisting copyrighted material.[133] The main difference is that for GenAI, the derivative work is created by a software algorithm, whereas fan films and fan fiction are human made. This is an important distinction to keep in mind as our society develops the legal framework around copyright and artificial intelligence.
Based on the above background information of the fair use defense it is foreseeable that companies, which specialize in artificial intelligence, may rely upon the fair use doctrine to validate the works created by their software, in order to avoid being held liable for infringement.[134] Currently, there is no amateur human creator component to the fair use doctrine and without this distinction fan films may be at risk, largely in part because their status under the fair use doctrine is a grey area of the law.[135] Whatever rulings the courts may decide in cases such as Andersen et al v. Stability AI Ltd. et al may carry over to impact the creation and production of fan fictions and fan films, which has largely been a self-policing environment between copyright owners and fandoms.[136] A transition from fandom self-policing methods and an environment which fosters creativity to a more legal one may open fan work creators to more litigation.[137]
The fallout of such a scenario could drastically impact fan works in a negative manner. Creators of fan films and fan fiction may choose not to create anything at all upon the perceived outcome that they may be opening themselves up to legal action.[138] While this has always been a concern, the current self-policing environment has allowed fan work creators enough leeway to create amateur works based on copyrighted material without much fear of legal actions being taken against them.[139]
Another concern on the use of GenAI is that it may eventually replace human created fan fiction and films altogether, as GenAI will ask the “what if?” question for us.[140] For example, once an original work has been exhausted by consumers or the fans access becomes limited, the only avenue left is for the fan to make their own work as a continuation of the original work. Fan labor is a result of lack of content and fans being motivated to ask the “what if” question.[141] With the onset of artificial intelligence, there may be little motivation for fans to create fan works as humans can just throw a prompt into a GenAI software and have a book drafted in a matter of minutes. Human created fan works may very well decline over time for this very reason, thus condemning human created works of fan films and fan fiction to the annals of history, all because GenAI has the potential to produce such fan works on a much greater scale.[142]
The scale in which GenAI can create fan fiction and fan films also has the potential to negatively impact original creators and copyright holders.[143] Because GenAI software increases efficiency and scalability for the production of fan fiction and fan films there are some concerns over copywrite holders losing market share. Because fan fiction and fan films are free to access, they have the potential to push out the original creations from the market, as why would anyone pay for a product they can create for free, regardless of the quality of GenAI given output.[144] GenAI is already doing this to copyright holders and creators across multiple industries.[145]
C. Amending Section 107 of the U.S. Copyright Act
Fan works are at risk due to the introduction of GenAI software and deserve some level of protection. A solution should be implemented within the existing laws to ensure human created fan works are afforded some level of security. To do this, adding or expanding upon existing factors of the fair use doctrine would ensure that fan fiction and fan films are protected under section 107 of the Copyright Act.
In Lights! Camera! Infringement? Exploring the Boundaries of Whether Fan Films Violate Copyrights, Jyme Mariani proposed that a subcategory for “nonprofit or noncommercial dramatic works” should be added to section 107.[146] She points out that while this would leave some categories of fan works still in a grey area of law, such an implementation could allow some fan works to fall under the umbrella of the fair use doctrine in a concrete manner.[147]
While Mariani proposed solution may be reasonable, the onset of GenAI has changed the world of copyright forever and the biggest danger to fan works is no longer copyright holders but GenAI.[148] Congress should take up Mariani’s suggestion to amend the Copyright Act of 1976, but instead of proposing a new determining factor as for the applicability of fair use on the basis of nonprofit or noncommercial, the additional factor should focus on who or what is the creator of an alleged infringing work.
By incorporating language into section 107 that makes a clear distinction between amateur human created derivative work and those produced by GenAI—of which only affords protections under fair use to the former—would in effect take away a defense being use by GenAI companies, who are alleged to be infringing.[149]
Protections provided by such an addition to fair use would allow fan work creators the ability to continue with their artistic and imaginative endeavors without being lumped together with the mass influx of GenAI produced works. This is important because GenAI produced works is causing great concern to artists and business sectors, such as the publishing industry.[150]
Moreover, amending fair use in such manner would also afford more protection to copyright holders themselves. GenAI companies are in part relying on fair use as a defense to justify the software output of derivative works.[151] By taking away this affirmative defense Congress would increase the ability of copyright holders to claim copyright infringement specific to GenAI. Due to how GenAI efficiency and scalability, for the production of alleged infringing derivative work, has completely eclipsed anything else markets have ever seen before; such a distinction is critical to protecting the limited monopoly granted by Congress to copyright holders under the Copyright Act.[152]
Depending on how such an addition is drafted and implemented into the law, the current relationship between copyright holders and fan creators may be sustained. Furthermore, such an amendment to the fair use doctrine would make a legal distinction between derivative works, as it relates to human and artificial creation, by developing a division between the two and the protections afforded to each.
IV. Conclusion
For hundreds of years our history has passed down from one generation to the next through oral storytelling and narrative.[153] Fan works, such as fan fiction and fan films, are the modern day continuation of this tradition.[154] It is through the creation of fan works that entire online and international communities of fandoms are established, and new ideas are explored through shared curiosity.[155]
Fan fiction and fan films have always had a close connection with technology, because it is technology that has enabled their creation and distribution amongst the masses.[156] Without the video camera fan films could not be made.[157] Without the internet fan works would not be viewed by potentially millions of people.[158] Without the ability to communicate globally international communities of fandoms would suffer greatly or cease to exist.[159]
The human ability to develop and apply new technologies to fan fiction and fan films has clearly progressed over time, but we have now reached a crossroads in which the honeymoon phase between fan works and technology is arguably over. As GenAI is becoming increasingly more prevalent in modern society Congress needs to set forth an additional distinction on the basis of what is protected under section 107 of the Copyright Act and what is not. Without any existing concrete determination as to when a given fan fiction or fan film is infringing, the current informal relationship between copyright holders and fan fiction and fan film creators is at risk due to potential abuses of GenAI and any sort of negative legal implications arising out of its use as a tool for the creation of derivative works.[160]
By having Congress amend the Copyright Act of 1976 to include under section 107 of the fair use doctrine an additional subcategory that identifies human created works as protected, with a focus on the amateur human component in the creation process, we can further sustain the present informal relationship between copyright owners and creators of fan works.
It is only by legally differentiating and recognizing the human component of a fan works creation process from that of the simulated GenAI output processes that we can better define and protect fan works. Perhaps, one day fan works, such as Nosferatu and Prelude to Axanar, can be created without a looming concern of a lawsuit or being burned to crisp due to the introduction of GenAI which has the ability to further claims of infringement brought by copyholders. By proposing that there is a way to protect such artistic undertakings by highlighting the importance of human creativity we can preserve civilization's long-standing history of oral storytelling and narrative far into the future.
End Notes
[1] Meredith McCardle, Fan Fiction, Fandom, and Fanfare: What's All the Fuss?, 9 B.U. J. Sci. & Tech. L. 433, 438 (2003); see also Neil Sahota, GenAI Assisted Fan Fiction: A Creative Renaissance or Extinction Event, Forbes (2024), https://www.forbes.com/sites/neilsahota/2024/01/10/genai-assisted-fan-fiction-a-creative-renaissance-or-extinction-event/ [https://perma.cc/CGR5-86MG] (lasted visited Dec. 1, 2024).
[2] Sonia K. Katyal, Performance, Property, and the Slashing of Gender in Fan Fiction, 14 Am. U. J. Gender Soc. Pol'y & L. 461, 513 (2006) (noted that, “[w]orks that negotiate meanings fall within a separate category of speech and tend to be afforded almost no protection within the spheres of both copyright and trademark because they produce works that are not fully transformative of the original.”). Such works, instead of being protected, are termed as “appropriation art.” Id. This meaning is given to works which “utilizes a preexisting text to create a new work of art that builds upon but does not completely transform the original.” Id.
[3] See Jyme Mariani, Lights! Camera! Infringement? Exploring the Boundaries of Whether Fan Films Violate Copyrights, 8 Akron Intell. Prop. J. 117, 141 (2015) (noted that “So far, no court cases have been brought over fan fiction.”).
[4] Katyal, supra note 2, at 513.
[5] Id.
[6] See Mariani, supra note 3, at 143. Derivative works are creations that are based on existing copyrighted materials. 17 U.S.C.A. § 101 (West). Derivative works take an original idea and modify its delivery. Id. For example, a painting turned into an immersive experience through projections to create a feeling a movement. Immersive Van Gogh Exhibit Minneapolis, https://vangoghmsp.com/ [https://perma.cc/TBF7-QTWV ] (last visited Nov. 23, 2024).
[7] Rolf Giesen, Nosferatu Story: The Seminal Horror Film, Its Predecessors And Its Enduring Legacy 2 (2019).
[8] Domagoj Valjak, All copies of the cult classic “Nosferatu” were ordered to be destroyed after Bram Stoker’s widow had sued the makers of the film for copyright infringement, The Vintage News (2017), https://www.thevintagenews.com/2017/04/05/all-copies-of-the-cult-classic-nosferatu-were-ordered-to-be-destroyed-after-bram-stokers-widow-had-sued-the-makers-of-the-film-for-copyright-infringement/?D2c=1 [https://perma.cc/D7LA-5KCY] (lasted visited Dec. 1, 2024).
[9] Derek Scally, Nosferatu and the Fangs of Copyright Infringement, The Irish Times (Mar. 5, 2022, 5:00 AM), https://www.irishtimes.com/culture/film/nosferatu-and-the-fangs-of-copyright-infringement-1.4814233 [https://perma.cc/HVU6-9C6P] (lasted visited Dec. 1, 2024).
[10] Emma Gisclair, In Defense of Fan Fiction (2019), https://www.ucf.edu/news/in-defense-of-fan-fiction/ [https://perma.cc/XJ28-P65P] (lasted visited Dec. 1, 2024).
[11] Oral Traditions, Britannica Online Encyclopedia, https://www.britannica.com/topic/oral-tradition [https://perma.cc/ZK5N-UFVK] (last visited November 5, 2024).
[12] Id.
[13] Bard poet-singer, Britannica Online Encyclopedia, https://www.britannica.com/art/bard [https://perma.cc/88FN-5YAA] (last visited Nov 15, 2024) (Notes that bards historically created works of eulogy and satire through writings and lyrics.).
[14] Dipti Desai, Working with People to Make Art: Oral History, Artistic Practice, and Art Education, 21 Jstae 72, 73 (2001).
[15] Celeste Kidd & Benjamin Y. Hayden, The Psychology and Neuroscience of Curiosity, Neuron88, 449-60 (2015).
[16] Bárbara Rodríguez-Fuentes & José Luis Ulloa. Why Do People Create Imaginary Worlds? The Case of Fanfiction, Behavioral and Brain Sciences 45 (2022).
[17] Jacqueline D. Lipton, Copyright and the Commercialization of Fanfiction, 52 Hous. L. Rev. 425, 432 (2014); see also Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and A New Common Law, 17 Loy. L.A. Ent. L.J. 651, 655 (1997) (Explaining the “what if” question with an example of a little girl playing with a Barbie doll and creating her own story with Barbie.).
[18] Sahota, supra note 1 (Notes that “The introduction of GenAI in fan fiction is altering the dynamics between original authors and fan communities. While some authors embrace fan fiction creations, others might view AI-generated works as a threat to their creative control and intellectual property.”). GenAI can be used to mass produce low quality fan fictions, mimic the style of original creators, infringe upon the rights of copyright holders, and negatively impact the author-fan relationship. Id.; see also Hillel Italie, ‘Game of Thrones’ creator and other authors sue ChatGPT-maker OpenAI for copyright infringement, B.B.C. (Sept. 21, 2023), https://www.bbc.com/news/technology-66866577 [https://perma.cc/E35R-AHDH] (lasted visited Dec. 1, 2024) (noting “flagrant and harmful infringements of plaintiffs registered copyrights and that ChatGPT is a ‘massive commercial enterprise’ reliant upon ‘systematic theft on a mass scale.’”).
[19] Tushnet, supra note 17, at 654-55 (noted that fan fiction is not only a form of written creativity but also the production of culture and fan fiction does so without harming the interests of the original copyright holder.).
[20] Mariani, supra note 3, at 123. User-generated content “means that amateurs borrow from or repackage the professional content, which is usually distributed over the Internet.” Id.
[21] Id.
[22] Id.
[23] Id. Fan fiction can move away from a given works canon. Mariani found that “fan fiction creators often go directly against canon to initiate stories that cannot or would never exist in the original work. These works are typically classified as Alternative or Alternate Universe.” Id.
[24] Id. at 126.
[25] Id. at 127.
[26] Id. at 127–28.
[27] Id. at 128. (noting that “In fan films, these same types of treatment would be labeled as pornography.”).
[28] Id. at 127.
[29] Id.
[30] Id. at 130.
[31] Jim Windolf, Raiders of the Lost Backyard, Vanity Fair (Jan 2, 2008), https://www.vanityfair.com/news/2004/03/raiders200403 [https://perma.cc/3ERV-3AWG?type=standard] (last visited Nov 23, 2024).
[32] Kailea Swartz, Destroying the Market Without Making A Dime: How Fans Are Risking Copyright Protection by Abandoning Original Creators, 75 Rutgers U.L. Rev. 271, 292-293 (2022).
[33] Sahota, supra note 1.
[34] “I want a fan fiction short story based on the book Eragon but from the perspective of dragons only.” “Prompt”, AI Fanfic Generator (Nov 11, 2024) https://perchance.org/ai-fanfic-generator [https://perma.cc/32GJ-7XEP] (lasted visited Dec. 1, 2024) (Author notes that it took the GenAI free online software approximately 45 seconds to generate both paragraphs.).
[35] Id.
[36] Kagen Despain, Fan Films and Fanworks in the Age of Social Media: How Copyright Owners Are Relying on Private Ordering to Avoid Angering Fans, 2020 B.Y.U. L. Rev. 333, 351-52 (2020) (noted that filmmaking, in general, will require a team that “incorporates the technological and communal aspect of fandom and is enhanced by advances in technology.”).
[37] Id.
[38] Active crowd-funding campaigns, Fan Film Factor (2021), https://fanfilmfactor.com/energize/ [https://perma.cc/N3PP-JEH6] (last visited Nov 5, 2024).
[39] Aaron Young, 6.15 Class Lecture - Starting a Business Entity & Financing, Business of IP: Independent Film Production (2023).
[40] GoFundMe search: Fan+films, https://www.gofundme.com/s?q=fan%2Bfilms [https://perma.cc/V824-72SV] (last visited Oct 15, 2024).
[41] Will Douglas Heaven, Welcome to the new surreal. how ai-generated video is changing film. MIT Technology Review (2023), https://www.technologyreview.com/2023/06/01/1073858/surreal-ai-generative-video-changing-film/ (paywall—on file with author) (last visited Oct 12, 2024) (Explores how cheap it is now to generate short videos for commercial purposes. The price for GenAI software is being “offer[ed] as part of a tiered subscription service starting at $25 a month, users simply supply a business name and location.”) (Noted that “[t]he technology takes data from a “business's websites and social media accounts for text and images. It then uses that data to generate a commercial, using OpenAI’s GPT-3 to write a script that is read aloud by a synthesized voice over selected images that highlight the business.”) (A video creation company, using a human created movie scrip as their basis, made use of artificial intelligence to create every shot and add in animations.).
[42] Id.
[43] Swartz, supra note 32, at 292-93
[44] Id.
[45] Id.at 284.
[46] Id.
[47] Id. at 278.
[48] Id.
[49] See Christopher Mele, “Star trek” copyright settlement allows fan film to proceed, The New York Times (2017), https://www.nytimes.com/2017/01/21/movies/star-trek-axanar-fan-film-paramount-cbs-settlement.html (paywall—on file with author); see also 17 U.S.C.A. § 101 (West).
[50] Despain, supra note 37, at 334. The fan production, titled Prelude to Axanar, is a twenty-minute film based on a preexisting episode of Star Trek that was originally broadcasted in the ‘60s. Mele, supra note 49.
[51] Agence France-Presse, AI Puts the Heat On The Publishing Industry as Low-Quality Computer-Written Books Flood The Market, South China Morning Post (Oct 11, 2023 at 11:00 PM), https://www.scmp.com/yp/discover/entertainment/books/article/3238845/ai-puts-heat-publishing-industry-low-quality-computer-written-books-flood-market [https://perma.cc/6NTE-L5HA] (lasted visited Dec. 1, 2024).
[52] Young, supra note 40.
[53] Saurabh Sharma, How Advanced Technology is Revolutionising Filmmaking (2022), https://raindance.org/how-advanced-technology-is-revolutionising-filmmaking/ [https://perma.cc/7GGR-RRWZ] (lasted visited Dec. 1, 2024).
[54] Id.
[55] Despain, supra note 37, at 363.
[56] Cf. Warner Brothers v. RDR Books, 575 F.Supp.2d 513 (S.D.N.Y. 2008) (Courts held that an online guide to the world of Harry Potter, originally a free fan made creation, once offered a book deal was not fair use.); This was in part due to J.K. Rowling working on publishing her own official version. Foley Hoag, 10 Copyright Cases Every Fan Fiction Writer Should Know About (2016). https://foleyhoag.com/news-and-insights/blogs/making-your-mark-blog/2016/october/10-copyright-cases-every-fan-fiction-writer-should-know-about/ [https://perma.cc/XQJ4-ER5P] (lasted visited Dec. 1, 2024).
[57] Despain, supra note 37, at 333-35.
[58] Sahota, supra note 1. Through the use of artificial intelligence fan fiction writers have been able to “mimicked J.K. Rowling's style and included significant plot elements from the original series, leading to copyright claims from the publisher.” Id. (The use of Artificial Intelligence to mimic the original works may lead to courts to rule that a given work has left the realm of amateur work as they take a more professional approach in conforming to the original work.).
[59] But see Nosferatu film by Murnau [1922], Britannica Online Encyclopedia, https://www.britannica.com/topic/Nosferatu-film-by-Murnau-1922 [https://perma.cc/7KUM-HWGV] (last visited Nov 2, 2024). Britannica lists Nosferatu as simply being an unauthorized adaptation of Bram Stoker’s novel, Dracula. Id.
[60] Giesen, supra note 7, at 2.
[61] Valjak, supra note 8.
[62] Scally, supra note 8.
[63] Mele, supra note 49.
[64] Id.
[65] Despain, supra note 37, at 363–64.
[66] Id.; see also Hoag, supra note 56. Article noted that, “Axanar is the rare piece of fan fiction that may constitute a market threat to the real franchise.” Id.
[67] Mele, supra note 49.
[68] Despain, supra note 37, at 364.
[69] Id. at 363–64.
[70] Lipton, supra note 17, at 436; see also Swartz, supra note 32, at 281.
[71] Fan films, Star Trek, Paramount Pictures Corporation (2024), https://www.startrek.com/fan-films [https://perma.cc/Q6T2-9AEP] (lasted visited Dec. 1, 2024). The content of the guidelines sets forth that such fan undertakings are subject to duration constraints, title cannot include “Star Trek” and must include “A Star Trek Fan Production,” content must be original, creators and actors must be uncompensated amateurs, all props in the file must be official merchandise, must be a non-commercial production and fundraising cannot exceed $50,000, distribution is limited, must be family friendly, fan films must include a disclaimer drafted by Paramount, cannot register such works with the Copyright Office, and cannot imply association or endorsement by CBS or Paramount Pictures. Id.
[72] Id.
[73] Despain, supra note 37, at 346
[74] Id. at 346-347. Fan works have “proliferated” over various internet communities, fandoms. Even with mass dissemination, fan communities have created and enforced “shared social norms” that are used to “self-police” showing that fan communities do acknowledge the intellectual property rights of original creators. Id.
[75] Fan films, Star Trek (2021), https://www.startrek.com/fan-films [https://perma.cc/Q6T2-9AEP] (lasted visited Dec. 1, 2024).
[76] Despain, supra note 37, at 348. (Notes that “[f]an communities and fan film creators have incorporated some elements of trademark law as informal guidance for differentiating their works.”).
[77] Id. at 350.
[78] Id.
[79] Id. The example brought up by Despain focuses on Lori Jareo, who wrote a fan fiction. The fan fiction Another Hope, resulted in a “…a cease-and-desist letter from Lucasfilm, but she also received scathing rebukes from bloggers and other fan fiction writers.” Selling a fan work is a major taboo in the fan works community. Id.
[80] McKinsey & Company, What is generative AI? (2024), https://www.mckinsey.com/featured-insights/mckinsey-explainers/what-is-generative-ai [https://perma.cc/5K8S-5J6S] (lasted visited Dec. 1, 2024).
[81] Morgan Sung, Lensa, the AI portrait app, has soared in popularity. but many artists question the ethics of AI art. NBCNews.com (2022), https://www.nbcnews.com/tech/internet/lensa-ai-artist-controversy-ethics-privacy-rcna60242 [https://perma.cc/36MQ-VLST] (lasted visited Dec. 1, 2024).
[82] Andersen et al v. Stability AI Ltd. et al, 700 F.Supp.3d 853, 860-62 (N.D. Cal. 2023)
[83] Melissa Heikkila, This Artist is Dominating AI-generated art. And he’s not happy about it. (2022) https://www.technologyreview.com/2022/09/16/1059598/this-artist-is-dominating-ai-generated-art-and-hes-not-happy-about-it/ [https://perma.cc/9BBG-2T8D] (lasted visited Dec. 1, 2024) (Greg Rutkowski, a well-known digital artist, has been used as a prompt for the creation of GenAI based works of art over 93,000 times within the first month alone of [Gen]AI being available to the masses.). “It’s been just a month. What about in a year? I probably won’t be able to find my work out there because [the internet] will be flooded with AI art,” Rutkowski says. Id.
[84] Sahota, supra note 1. Documents how “[r]ecently, a fan fiction writer used GenAI to generate a story in the Harry Potter universe. Id. However, the resulting work closely mimicked J.K. Rowling's style and included significant plot elements from the original series, leading to copyright claims from the publisher.” Id.
[85] U.S. Copyright Office, COPYRIGHT AND ARTIFICIAL INTELLIGENCE COPYRIGHT AND ARTIFICIAL INTELLIGENCE | U.S. COPYRIGHT OFFICE, https://www.copyright.gov/ai/ [https://perma.cc/JVZ2-VELU] (lasted visited Dec. 1, 2024). The copywrite off has established in recent notices that they can and will only protect products that are based on human creativity. That “[m]ost fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans.” Id; see also Burrow-Giles Lithographic Co. v. Sarony, 28 L. Ed. 349 (1884). In this case a defendant was accused of creating unauthorized copies of a photo. The defendant tried to argue that the pictures were created by a camera and was therefore not a product of an author. The Court held, “that there was ‘no doubt’ the Constitution’s Copyright Clause permitted photographs to be subject to copyright.” Id. That photos are, “representatives of original intellectual conceptions of the author.” Id. The Court proceeded to define an author as, “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” Id. The court in this case referred to authors and humans interchangeably and that copyright is “the exclusive right of a man to the production of his own genius or intellect.” Id. This is the basis for the U.S. Copyright Office on AI created works. Id.
[86] Id.
[87] Andersen Compl. ¶ 20. (Notes that “Generative AI” is a subset of machine learning where the program copies training data and uses it to produce derivative works of that training data. Stable Diffusion is an example of a GenAI, because it is trained using copied images, and produces similar images. Other GenAI systems exist that produce conversational text, software code, and music, in each case similar to the respective training data.”).
[88] Andersen Compl. ¶ 60. (Notes that “DreamStudio has been lucrative for Stability. In October 2022, Stability announced it had raised $100 million, led by Coatue and Lightspeed Venture Partners. At the time, Stability was valued at approximately $1 billion.”).
[89] Andersen Compl. ¶ 90. (Alleges that “[t]he resulting image is necessarily a derivative work, because it is generated exclusively from a combination of the conditioning data and the latent images, all of which are copies of copyrighted images. It is, in short, a 21st-century collage tool.”).
[90] Andersen Compl. ¶ 170. The compliant justifies the standing of the plaintiffs by declaring “As the owners of the copyright rights, Plaintiffs and the Class hold the exclusive rights under 17 U.S.C. § 106.” Id. This rhetoric is a reiteration for when a copywrite owner takes action, legally or informally, against a fan work. See Mele, supra note 49.
[91] Deazley, R. (2008) ‘Commentary on the Statute of Anne 1710', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
[92] U.S. Const. art. I, § 8, cl. 8. The Copyright Clause of the United States Constitution is an enumerated power listed therein, thus granting expressed powers to Congress to allow authors and inventors exclusive rights to their creations. Id.
[93] Mariani, supra note 3, at 143.
[94] 17 U.S.C.A. § 101 (West).
[95] Mariani, supra note 3, at 143.
[96] Id.
[97] 17 U.S.C. § 101 (West).
[98] Mariani, supra note 3, at 143 (discussing that fan filmmakers are lucky in that courts have not interpreted § 106 of the Act as granting copyright owners complete control over every aspect of their original work.)
[99] Id.
[100] Id.
[101] Id.
[102] Id.
[103] Katyal, supra note 2, at 513.
[104] Lipton, supra note 17, at 445.
[105] 17 U.S.C.A. § 107 (West).
[106] Swartz, supra note 32, at 281.
[107] Id.
[108] Mariani, supra note 3, at 156.
[109] Id.
[110] Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985). Claims of infringement were brought before the court on the basis of an unauthorized magazine publishing an article with quotations directly from President Ford’s memoirs. The court held that the quotes were sourced from an unpublished memoir that was “intended to supplant copyright holders’ commercially valuable right of first publication” and therefore was not protected under fair use. Id; see also Mariani, supra note 3, at 157.
[111] Id.
[112] Id.
[113] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578–79, 114 S. Ct. 1164, 1171, 127 L. Ed. 2d 500 (1994). Copyright holders, Acuff-Rose Music, sued a rap music group, for copyright infringement. The rap group, 2 Live Group, wrote and sold a parody song that was largely based on Roy Orbison's song, “Oh, Pretty Woman”. The case made it all the way to the supreme court where it was found that the “commercial character of song parody did not create presumption against fair use.” Id.
[114] Id.
[115] Id. at 581–82.
[116] Id. at 569; see also Mariani, supra note 3, at 158.
[117] Mariani, supra note 3, at 159.
[118] Id.
[119] Id. at 458. “This factor will generally weigh against the fan filmmaker.” Id; see also Tushnet, supra note 17, at 676-77 where “[u]nder the second fair use factor, fictional sources get more protection than facts. Like parody, though, fan fiction is unlikely to be written about factual narratives; therefore, this fair use factor may simply be irrelevant to the analysis.” Id.
[120] Id.
[121] Id. at 459.
[122] 17 U.S.C.A. § 107 (West).
[123] Mariani, supra note 3, at 160.
[124] Id.
[125] Id. at 162
[126] Id. at 150-51 (noted that stormtroopers exist as background characters and not as the main character, meaning that if courts apply the Learned Hands test the stormtrooper would not be protected by copyright). The Learned Hand test was developed by Judge Learned Hand and set forth that “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” Nichols v. Universal Pictures Corp, 45 F.2d 119, 121 (1930).
[127] Mariani, supra note 3, at 162-63; see also Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985) (noted that “[t]his last factor is undoubtedly the single most important element of fair use.”).
[128] 17 U.S.C.A. § 101 (West)
[129] Sony Corp. of Am. v. Universal City Studios, Inc., 78 L. Ed. 2d 574 (1984). Petitioners brought copyright infringement claims against Sony, the manufacture of home videotape recorders, on the basis that people at home were using their product to record their copyrighted works, impacting their financial bottom line. The Supreme Court held in favor of Sony, determining that the “copyright holders who licensed their works for broadcast on free television would not object to having their broadcasts time shifted by private viewers” and that the petitioners failed to show that this would result in “nonminimal harm to the potential market for, or the value of, their copyrighted works.” Id. at 574-75
[130] Id.
[131] Id. at 451.
[132] Sahota, supra note 1.
[133] Kevin Madigan, Top Takeaways from Order in the Andersen v. Stability AI Copyright Case (2024), https://copyrightalliance.org/andersen-v-stability-ai-copyright-case/ [https://perma.cc/DY7L-V8DC] (lasted visited Dec. 1, 2024).
[134] Id. (Madigan noted that “[w]hat it does provide is an insight into how a court in a district that is no stranger to copyright disputes will approach and analyze issues surrounding the operation of generative AI models and infringement.” Id. (explained by Judge Orrick, “each case is unique and involves different facts, which will be especially important to recognize when the fair use elephant in the room is litigated.”)
[135] Katyal, supra note 2, at 513.
[136] Despain, supra note 37, at 346.
[137] Id. at 338.
[138] Cf. Id.
[139] Id. at 348.
[140] As Generative Artificial Intelligence can create fan works in an efficient and cost-effective manner there is little point for humans to take the time and pursue their own creative undertakings, in summary “Relying heavily on GenAI for content creation could lead to a decline in the creative writing skills of fan fiction authors.”. Sahota, supra note 1.
[141] Kendra Kerry, Motivation: The Driving Force Behind Our Actions, Verywell Mind. (May 3, 2023), https://www.verywellmind.com/what-is-motivation-2795378 [https://perma.cc/96FH-N3YC] (lasted visited Dec. 1, 2024). Based on a modern understanding of behavior psychology, when someone has a goal or desire, they will be motivative to get achieve said goal or desire. Id. Building off of the modern understanding of behavior psychology, if Paramount Pictures could crank out a Star Trek film or novel on a daily or even monthly basis, we would see a decrease in the amount of fan work as a whole; for the consumer, who is establish as also being a fan, will be better placated and their motivation will be diminished by an increase in “official” supply. Cf. Id.
[142] Sahota, supra note 1.
[143] France-Presse, supra note 51
[144] Id.
[145] Id. As digitalization takes over the world, the latest sector to feel the heat from rapid developments in artificial intelligence is publishing. Id. The publishing industry faces issues from low-quality computer-written books flooding the market heedless of potential copyright violations. Id.; see also Heikkila, supra note 82.
[146] Mariani, supra note 3, at 168.
[147] Id.
[148] Sahota, supra note 1.
[149] Madigan, supra note 132.
[150] France-Presse, supra note 51; see also Heikkila, supra note 82.
[151] Madigan, supra note 132.
[152] France-Presse, supra note 51; see also Heikkila, supra note 82.
[153] McCardle, supra note 1, at 437-38.
[154] Gisclair, supra note 10.
[155] McCardle, supra note 1, at 437-38.
[156] Despain, supra note 37, at 334-35.
[157] Id. at 345-46.
[158] Cf. Id. at 346.
[159] Id.
[160] Sahota, supra note 1.