How U.S. Copyright Law Fails Fan Creators
Fans know that creativity isn’t a finite resource that needs to be kept behind lock and key
by EarlGreyTea68
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Fans are part of a “remix” culture. We are experts at taking what has come before and making something new out of it. Sometimes what we create is an homage to something we desperately love; sometimes what we create is a searing criticism of something that we used to love so much that we feel the original creator has ruined. But we all start with something already existing in culture; this is part of the definition of being a fan.
Of course, what we fans do in our fan communities is something that all artists do. Building upon what came before is the first step to making something new. Nobody creates in a vacuum. Reshaping what has come before us is part and parcel of creativity: it’s the most natural thing in the world to do, and it should be celebrated in its own right for the valuable richness it contributes to our society. (This is what the generative AI creators have argued, too: there is nothing new or different about what generative AI does, and it’s doing what all artists do. Whether that argument holds water is a debate for another day.)
That simple fact about creativity might lead you to believe that U.S. copyright law would understand and protect artists who use what has come before to make something new—but in a lot of ways, copyright law does a pretty terrible job judging the reuse of creative works. The law defines a work as infringing if it is “substantially similar in something protectable.” Roughly speaking, a work is infringing if we decide it took too much of what’s original (i.e., relatively unique) about the first work. That standard is intended to provide the second creator with some breathing room: you can be similar to what has come before you as long as you are not substantially similar, as long as you change enough about it.
This is an idea that makes sense in the abstract, but practically speaking, it’s incredibly challenging to apply, making it confusing for creators to know when they’ve crossed the line into being too similar to what has come before them. In theory, this could be made simpler by fair use, a copyright defense that tells us even if you are substantially similar to what came before you, you still might be okay, as long as what you have done is transformative of what came before.
Frankly, though, the law is not terribly clear on what exactly “transformativeness” means. In many cases, a lot of the judgment seems to be based on if the court thinks your reuse is worthwhile or if the court thinks you’re just a lazy thief. When we use words like “laziness” to figure out if someone deserves the protection of copyright law, that incentivizes artists to obscure how much they’ve built on what came before. This perpetuates a myth that people are creating in vacuums—even though we know that isn’t true. Better to pretend your idea just sprang wholecloth into your head, unconnected to anyone else’s creativity, ever, than be labeled a thief.
This means that the law has developed around this completely artificial and untrue perception of creativity that only exists for judges, not in the real world. So right away, we see that anyone who proudly proclaims their affection for other things in their creative practice—in other words, a fan creator—is going to run the risk of being stamped a lazy thief by copyright law for “stealing” someone else’s work for use in their own.
Aside from the broader condemnation of remix culture, there are other ways that U.S. copyright law fails fan creators. Inevitably, the law classifies creativity in terms of financial compensation. In order to take you seriously as an artist, courts want to see evidence that you make money from your art. But what if monetary exploitation is not the reason you create? What if you are not selling your creativity at all?
The legal focus on monetary compensation leaves people who make art entirely for fun and joy on the outside of the system: it simply doesn’t care about that kind of creativity. In fact, when we see courts support pieces of remix art, it’s often part of the commercial marketplace, like well-known artists who command a great deal of money for their work. Such artists are not guaranteed the law’s protection, but their financial success certainly seems to convince courts to seriously consider that they might be creating art worthy of the law’s notice. On the other hand, if you are only creating art for fun—and as a result, the law doesn’t really care about you—then that leaves you legally open to exploitation by those who will financially exploit your art. Since the system is skewed toward valuing money-making art, more powerful artists and corporations are automatically well-positioned—and they are often smart enough to know exactly how much of your work they can use for inspiration without having to pay for it.
Aside from leaving people who don’t create for financial compensation unprotected, the law’s preoccupation with monetized art means that courts can assume that people don’t consider their work valuable if they have made it available for free. This is not a true statement, of course. We fan creators still value our work—we often frame it as a “gift economy.” Charging people money is not the only way you can value creativity. However, since the law’s focus is on the financial value of a work, that can make fan creativity seem worthless in the eyes of the law. This fits nicely into the law’s narrative of fan creators as lazy thieves: if you really cared enough to be serious about your art, you’d charge people for it, but since you’re making it available for free, you must know it’s not anything important. Basically, the law encourages you to lock up your art and make it inaccessible if you want to be taken seriously, rather than being encouraged to engage in the fertile give-and-take of a thriving creative community like we see in fan cultures.
Fans usually don’t expect to make a bunch of money off of their creations. There might be some who cross over and turn their creativity into a full-time career, but, in the end, most fans do what they do for the fun of it. We don’t want to see someone steal our stuff and make millions of dollars from it, of course, but even if nobody is profiting off a reuse of our work, we still often appreciate getting credit: if someone wants to make a podcast of your fic, for example, you like a shout-out for having written the original, even if you don’t expect any compensation to come out of it.
This is, in fact, another area where copyright law fails fan creators: fans often want “payment” for their work in recognition, but U.S. copyright law basically never requires attribution. You cannot defend against copyright infringement by saying that you credited the original work; citing your sources is useful against accusations of plagiarism, but not against accusations of copyright infringement. If you have infringed someone’s copyright, acknowledging where you got the original stuff from doesn’t help you.
But the flip side of this is that a successful copyright infringement suit will never provide you with attribution. All you might want is for whoever took your stuff to acknowledge that it came from you, but the law will never give that to you. It will give you money instead, because the law assumes that's what you want: isn't that what creativity is all about, after all?! Creators often instinctively feel they should acknowledge the works of others that have contributed to their art—but from a legal point of view, it would be better not to, so you can keep pretending you weren’t inspired by anyone at all. In being so preoccupied with money, U.S. law misses entirely the way attribution is vitally important within reuse cultures.
Finally, I’m just going to say it: copyright terms last too long. The current term of copyright protection lasts seventy years beyond the lifetime of the author—all of the author’s life, plus seventy more years on top of that. What this means is that’s how long it will take for a creative work to enter the public domain, where it would then be free for the rest of us to use and engage with however we want. Of course, there are many thousands of years of human creativity that exist in the public domain already and are part of our cultural heritage—and all of that is free for the taking. But let’s not pretend our current cultural conversation is dominated by works predating the twentieth century; it’s what’s happening now.
Sure, there are definitely people who want to engage with eighteenth-century Gothic novel The Mysteries of Udolpho, and that is awesome and we want to encourage that. But the topics of most people’s conversations are the new pieces of creativity coming out: the most recent installment in the Marvel Cinematic Universe, or memes about the Barbie movie, or the latest album by the greatest band of the 21st century, Fall Out Boy (check it out). The culture relevant to most of us is that culture, the culture we’re existing with at this very moment, where we see our current iterations of humanity reflected (or not).
But given the length of copyright terms, none of that cultural heritage is going to be available for people today to freely engage with. Copyright is literally designed to make sure that nothing that was created during our own lifetimes will ever be available for us, except in the narrow confines of what might be transformative. All creativity builds on what comes before, but we have deliberately constructed a legal regime that makes that difficult to do. The way that fan creators get treated, both within that legal regime and within the greater creative culture, illustrates that: the “lazy thieves” under the law are encouraged to eventually “grow up,” as some frame it, and become responsible contributors to our creative community.
Fan creators don’t speak with one voice any more than any creative community speaks with one voice. I am well aware that I am one of you, but I am definitely not all of you. But most fan creators don’t consider themselves to be lazy or thieves—including me. In fact, all the fan creators that I know work very hard on our creations. We don’t consider ourselves to be stealing anything, because what we “steal”—some characters, some settings—is part of our cultural heritage, part of the world around us, part of the raw material we’ve been given to examine and make sense of our world, the way creators have for millennia.
This is not to say that we fans have no concept of copyright ownership. I think we do. I don’t think we’re all copyright anarchists who believe that no art should ever be paid for (I might leave that to the creators of AI systems, tbh). But I think we also just have an understanding that creativity doesn’t need to be locked up and inaccessible to be valuable. Rather, it should be shared among all of us, so we can all jump in the sandbox and squee together. I understand my fanfiction to have value. In fact, I think most of it is the best stuff I’ve ever written or ever will write. But I don’t view my readers as distant consumers I’m marketing a product to. The fact that I want all of us to be having fun together doesn’t mean that I think my writing isn’t good or serious art. Some of it gets sold, some of it doesn’t, but it’s all art.
We fans have historically often been ridiculed, belittled, and mocked, as if the act of reuse and transformation that we are engaged in isn’t the same exact act that every other creator is engaging in. Even in this age when people talk more openly about writing fanfiction, they still either promise that it was a phase on their developmental path or a tool to help them create “better” “real” art or, at the very least, a secret they’re not ready to totally reveal (I get it; me, too).
But actually? Fan creators might be the “real” artists here. Because fan creators know that all art is built on building blocks. It’s not hidden; it’s explicit. Fan creators know that creativity isn’t a finite resource that needs to be kept behind lock and key. With those same basic building blocks, from trope to trope and fandom to fandom, an infinite amount of vitally important creativity can be built. We know; we’ve done it. The law just needs to catch up.
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EarlGreyTea68 has written over four million words of fanfiction over the past fifteen-plus years (this can mostly be found on AO3, although some of it still lives on LJ). She’s written several hundred thousand words of original fiction, too.
In her “real-life,” she holds a law degree and is an expert on U.S. copyright and trademark law, especially as it intersects with digital creativity.