Intellectual Property

The member posing the question is 100% right: the copyright considerations of fanfiction are “tricky.”

A 2018 case in New York,[1] Conan Properties v. Sanchez, involves Ricardo Sanchez, a fan of “Conan the Barbarian,” who for around twenty-five Euro would send other fans a sculpture of a Conan character. Mr. Sanchez promoted his work on Kickstarter and other social media.

The company that owns the rights to the Conan characters sued Mr. Sanchez for copyright and trademark infringement. Mr. Sanchez, perhaps scared that the copyright police[2] were about to descend upon him, did not appear in the case to defend himself, and so the Plaintiff got a “default judgment” (a sort of forfeit win) and asked the court for the type of large commercial damages available for serious and willful commercial infringement.

The judge did her homework about fanfiction (including fan fiction for small commercial gain) and wrote:

[D]efendant is a hobbyist sculptor from Spain and a fan of Robert Howard, and, in creating his figurines as a tribute to the kinds of heroes depicted in Howard’s stories, he requested financial support from the community of Robert Howard fans to help fund and share his hobby. See Compl. Ex. A at 8. Defendant’s apparently meager revenue per figurine, see id. at 5, in a market that reportedly commands much higher prices, see Malmberg Supp. Decl. ¶ 11, suggests that the motivating purpose for defendant’s use was the prospect of fan play—as opposed to commercial gain, see Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 Wm. & Mary L. Rev. 513, 527 (2009) (defining “fanworks” as “works created outside the major [*90] content industries by aficionados of a source text” and existing “because creativity arises out of a sense of play”). Such use is a far cry from the kind of purely deadweight infringement present in piracy and related cases. Indeed, as the Supreme Court has observed: “Fan sites prompted by a book or film . . . may benefit the copyright owner.” Petrella v. Metro Goldwyn-Mayer, Inc., 572 U.S. 663, 134 S. Ct. 1962, 1976, 188 L. Ed. 2d 979 (2014) (Ginsburg, J.).

This was insightful on the part of the judge, but that didn’t get the Conan fan totally off the hook. Instead, the damages, which could have been in the hundreds of thousands, were limited to $9,000 dollars.[3]

While $9,000 dollars is a lot less than the damages in the typical “big” copyright case, it is not chump change. 

So, is there a way a library can sponsor a fan fiction event without urging participants to run afoul of copyright?

Yes!

As the judge points out in Conan Props., some fan fiction is so harmless as to be negligible infringement, and other fan fiction may even be “fair use” under copyright law.[4]

Although it seems counterintuitive, respect for the source material will make it more likely to be considered a “derivative work” (like a sequel or version in a different medium). On the flip side, personal touches that show the impact of the work on the fan’s life and put a new spin on it are more likely to be “fair use,” especially if the context is one of learning and participating in a creative event.

With that in mind, here is a sample participation letter for a Fan Fiction contest at a public library: 

RE:    ABC Library YA Fan Fiction Contest

Dear Participant:

At the ABC Library, we love it when people enjoy a book so much that they are inspired to create a work based on it.

To honor this creativity by our YA readers, we are sponsoring a “YA Fan Fiction Contest” for readers ages 12 to 16.[5]

As you may know, work that is clearly based on the work of another is a “derivative work” that requires permission from the author to publish or display. At the same time, under copyright law, work that comments on the work of others is allowed under “fair use.” 

This is a tough distinction to work with, but for this contest we simply ask that you follow these rules:

1. Your Source Material

If you are using established characters or settings to generate your Fan Fiction, submissions should transport the reader to a new perspective or location that makes the work your own. 

Examples: “Wings of Fire” set in the Adirondacks, or “Akata Witch” with a totally new character finding their powers.[6]

2. Originality

The work should be your original composition without help from other people (or AI). All work should be your own (you can work with a co-author if you submit it with both authors listed).

3. Non-commercial

You agree you won’t sell the work. We won’t sell it either! 

4. Publication and Display

You agree that the work may be published by and/or displayed at the Library. We will give you author credit.

To sign up, please fill in the form below, sign it, and send it in with your submission. Because this is a legal agreement, your guardian or parent must sign this along with you.

Submissions are due by DATE. Please submit them to INSERT with a signed copy of this form. 

Please make sure you keep a copy of your work, because we can’t promise your submission will be returned!

Winners will be announced [etc. with the logistics]. Because life happens, the library does reserve the right to change these dates, but we hope to stick to them!

Here are the contents for a sample form to include with the letter:

You can ask whatever you need to make the contest meaningful; the purpose is to include the benefits of participating together with the creation of the fan fiction, which will strengthen a fair use of the source materials.

This will also educate the participants about the copyright considerations, which will be important as they grow as artists and creators.

Thank you for hanging in there as we reviewed the case law and factors to consider in such a contest. This is a great example of how things can be done when you put the right amount of thought and planning into them. The young readers in your area are lucky. 

Good wishes for a fun event that showcases reader engagement and creativity!

Yes, we can talk about putting things behind a log-in to avoid misappropriation of content! Thank you for asking.

At the same time, we can (and must) talk about putting things behind a log-in to avoid problems with security, privacy, intellectual property, and data integrity.

Of course, by “things,” we mean “websites,” which are now a significant part of the services provided by libraries, museums, and archives.

Because websites perform a huge array of function, for purposes of this question, we are going to talk about library, museum, and archival websites that perform the following functions:

• Business information presentation (“About us,” “Our team,” “Policies,” etc.);
• Data repositories (archives and online collections);
• Searching the website and/or repository; and
• Integrated library systems services.[1]

Common website functions this question is NOT going to specifically cover are:

• Financial transactions (like donating to a museum over a website);
• Collaborative research (like crowd-sourcing a survey);
• Interactivity (for example, a social media site).

We’ll tackle those another day.[2]

Why am I narrowing the scope this way?

After 30 years of development,[3] libraries, museums, and archives use their websites as alternatives for their physical locations. The value of this—if it was ever in question—was shown during the COVID-19 Pandemic.

Because of this, such websites must be:

• Mission-focused;
• Consistent and reliable;
• Compliant; and
• Trusted.

Current trends in Internet activity show that the risks that were always present when operating and relying on a website are only getting starker. In addition to the operability risks flagged in the Library Journal article cited by the member, the risks posed to security, privacy and data integrity are significant, too.

Here is a short, fictional story that illustrates some of those risks, in combination with a few other factors:

***START OF SCENARIO***

The Scribe Museum is a beloved institution in Tinytown, New York. Tinytown is the birthplace of Daniel D. Scribe, who kept the minutes at the first meeting of an important civil rights organization.

The Scribe Museum is a solid limestone building that has the physical collection of the complete works of Daniel D. Scribe, and recently, it digitized its entire collection. The digital collection is hosted by another group, which subcontracts services to a cloud provider.

To preserve the physical collection while the building’s heating, cooling, and ventilation system is replaced, the Scribe Museum rents a temporary location and moves the archival material per established best practices.

The Scribe Museum’s website is www.scribemuseum.net, hosted by GoMommy.com. The digital collection is open to all. The website says “While our archives are safely off-site and our building is being given some TLC, peruse our digital collection! Civil rights are always open.” The Scribe Museum’s leadership is savvy and does not make the location of the relocated physical archives broadly known.

A person with a lot of free time decides that the Scribe Museum’s civil rights mission is too “woke.” They spend a few weeks patiently downloading the full archive in small tranches and then launch a bot attack to deny service by the website. They then modify the scanned documents to change them in small but nasty ways, create an alternate website at www.scribemuseum.not, and post them to various social media sites to disseminate.

The villain also hacks the Scribe Museum’s server and holds the content for ransom, gets access to and posts all their emails, and uses social engineering to find the physical location of the archive for some old-fashioned property destruction. They also deliver some pizza to every board member as a “message.”

***END OF SCENARIO***

Ugh. Just writing that out was... not fun.

So how can a library, museum, or archive use a log-in system to help avoid this scenario?

We have to face it head-on: there is no one way to avoid this type of scenario, including use of a log-in. Rather, libraries, museums and archives must use a combination of log-in, enhanced security, back-ups, intellectual property protections, and (most critically) train human beings to be safer, or as I call it, “harden the target.”

How does a library, museum or archive harden the target of its website?[4]

Several things:

First, a library, museum, or archive must consider the security and architecture of its website. Is it ready to withstand an attack? Is it set up to be resilient? What level of functionality must it have assurance of?

To answer these questions, the institution must consider—and deeply reconsider—the purpose of its website. Is the website just a directory service (“Get here,” “Accommodations,” “Admission,” etc.), or is the content a core service? Does all the content currently on it have to be there? If so, does the benefit of immediate access outweigh the risks?

After asking these questions, the institution must consider the information it puts on its “open-to all” part of the website, what it might want to put behind a log-in screen, and what should only be accessible after some human contact. For each level of access, the risk of it being compromised should be worth the benefit of having disclosed it.

As the article cited by the member points out, this change is viewed as an existential threat by many cultural institutions. But while it is certainly a big change, it is also a chance to reinvest in human connectivity in addition to evolving technology.

Here are examples of how this opportunity can benefit an institution:

Example 1: After assessing its mission and website, a museum posts only its essential “about us” information on its unrestricted webpages. Wanting the website to stay engaged and dynamic, it also regularly showcases 20 examples of its prime collection, unrestricted and with metadata, on its website and social media. It then allows standing access to search its full digitized collection with a free log-in. To obtain a log-in, a user provides information to authenticate them as a valid user and agrees to the “Terms of Use.” When logged in during open hours, the user also has the ability to live-chat with a real human at the museum, a position that was specifically designed and built into the budget while the website presence was updated.

Example 2: After assessing its mission and website, a library posts all its “about us” information on its unrestricted web pages. Library users with cooperative library system cards can log in to perform all functions on the integrated library system (catalog search, reserves, seeing what books they have checked out). The library also has a separate log-in for those who are interested in its Rare Books Room; that log-in page is accessible after a general page describing the special collection in broad terms. Users without a library card can also call the library to make an appointment to view the rare books.

Example 3: After assessing its mission and website, an author’s archive posts its mission, location, fundraising, and contact information on its unrestricted web pages. The archive is by appointment only, onsite or via videoconference. Except for a few teaser documents to showcase the scope of the archive, the digitized version of the archive is similarly accessible on-site only. The archive invests in people being on-site and using technology to connect with those who want to work with the content. Since the content is still protected by copyright, the archive also registers and takes steps to put the proper notation on digitized content.

Example 4: After assessing its mission and website, a public university with a digital repository of over 200,000 documents related to health and wellness decides that the mission of the repository is only served if the repository can be searched and accessed without a barrier (such as a log-in). The university works with its IT staff and contract provider to design and invest in a database structure that can withstand periodic high “demand” caused by bots or targeted attacks and has a back-up in the event the primary site is interrupted. The university also develops an AI tool to assess when times of high demand require added resources.[5] The university develops and registers a trademark for the repository and uses it in key areas of the service. Workers are also trained and scheduled to be available on-demand for people who need help with the database. Although the extra design and security add costs, it is decided that the added reliability merits the expense.

In each of these scenarios, the institution is using its mission to determine what needs to be freely online without the barrier of a log-in and what should be further restricted. Just as critically, the institution is considering how human talent fits in and how the institution keeps the resource secure and resilient.

Here at the end of 2025, it is really, truly time to take a long, hard look at what is freely available on websites.

Just like the Internet changed the world in the 90’s, AI and its ability to warp the Internet is changing the world in the 2020’s. Wise institutions will use this as an opportunity to review their mission, assess their needs, and “harden the target” by structuring their online presence and policies to meet the needs of the present. The good news is that a key part of that is investing in people.

Thank you for a great question!

There are some really good, separate answers to this question.  I'll present them in the order I think would be useful to students and academics.

Answer #1: Clarity of ownership

Students own the academic work they author.  Even if they are completing an assignment with requirements tightly prescribed by a syllabus (such as: "Write an essay about four different civil rights cases heard in 2019; no more than 2,000 words; cite no less than four peer-reviewed law journal articles commenting on each case; identify a shared theme of the cases; conclude with a short paragraph as to which case is your favorite and why."[1]), the end result--if the student is the  only writer--is the student's.

Registration is not necessary to claim a copyright any more, but it remains strong evidence as to the ownership of a work.[2]  A student who authors something of importance to that student (such as a thesis, or a student film) should consider registration so they can readily assert that ownership.

Answer #2: Publicly establishing co-authorship

Not only do students own the copyright to their academic work, but students who are co-authors own that copyright together. 

This is true even if co-authors take on different tasks (such as: "Student 1 summarizes two cases, Student 2 summarizes two cases; each summary is 250 words; each cites to eight articles; they flip a coin to see whose paragraph on their favorite civil rights case is in the final version, and they proofread, edit, and finalize the document together."[3]), the end result--if they combine their work into a single whole--is the students'.

This is also true of students collaborating with a faculty member or a faculty research partner--even if one author/researcher has more experience than the other.  So, while most academic collaborations might not warrant the time and expense of registration, if the end result could be valuable (either financially, or as an academic credit in a published journal or on a CV) the co-authorship should be established in a written collaboration agreement, and confirmed with a joint registration.

Answer #3: Being able to quickly fight infringement

Before I dive into this one, a bit of commentary on copyright and academia:

The world of copyright--and of students taking credit for their artistic and academic expression--is changing: more and more authors are authorizing audiences to use their work through mechanisms such as an “open license” through the Creative Commons.

As a person who (still) believes that "information [still] wants to be free," I see this trend as a positive, but I do have one concern with this generous/generative approach: sometimes, the use of the work might be...wrong. 

What do I mean by this?  While an author might assume that anyone wishing to use their work would do so for a reason that aligns with that author's own perspective, values, and vision, that is simply not always the case. Sometimes, a person or organization could make a use of a work that is simply unacceptable to the author.[4]

Authors who think they could be impacted by this type of concern should consider using a copyright notice together with an easy way for would-be users to request permission, rather than an “open license.”  With this approach, an author/owner can still enable use, but will have a bit more control over what their work is associated with.[5]

The concern over work being used in a way that is objectionable to the author (and isn’t a fair use), is one of the biggest reasons to register a copyright: if a writer/photographer/muralist/etc. really wants to stop someone from infringing their work, that work's copyright must be registered, because that is the only way an author can sue for infringement and obtain an injunction.[6]

 Answer #4: Money

My final answer is 100% financial.

As the member's question states, authors no longer have to make a registration to claim a copyright. So what is the motivation to register?  In addition to answers "1" through "3," above, if a student/copyright owner, finding that their work has been infringed, wants to be able to sue for "statutory"^[7] damages, actual damages,[8] and attorney's fees, they need to have completed the registration of a published work prior to the infringement. 

Among many other things, these “statutory” damages, and the ability to recoup the costs of enforcement, are a motivation for a copyright attorney to take your infringement case without needing an up-front deposit.  So, it's another tool in the toolbox of copyright enforcement.

Final question

I believe answers "1" through "4" take care of the member's last two questions.  But what about the first one:

When is it advisable for an author/creator to register a work with the copyright office?

I don't usually play this card on "Ask the Lawyer," but I have to say, this is an almost unanswerable question.

For some people, the mere prestige of being able to look up their registrations at copyright.gov is important.

For others, the certainty of knowing they've done everything they can to protect their work from mis-use is critical.

And for still others--especially those planning to support themselves and their families through their intellectual property--registration is an important habit to ensure they are protecting their valuable property.   After all, copyrights are property rights left to a person's heirs after they die, just like money in the bank and real estate.

When I advise a client to register a Copyright, it is because they have flagged that work as important for some reason. For some, they might have already self-published it, and want to be able to control how their work is used. For others, it is because they plan to shop it or sell it, and they want to have optimal protection before they share it. And for others, it is because they suspect that the work has that "special something," and people in the future may copy it.

Any of these, and more, are valid reasons. For students, and those working in academia, the important thing is to be aware of your full body of work, to have clarity about its ownership, and --when you know you've created and own something important to you—to protect it.

Thank you for making sure today's students are thinking about their work and their intellectual property.

[1] Assignments like this are why students have either loved or hated my classes, AND why I never have to rely on a utility like "Turnitin" to detect cheating.  You just can't fake selecting a favorite civil rights case.

[2] The basics of registration, including the basic elements it asserts, are in "Circular 2" found at https://copyright.gov/circs/circ02.pdf.

[3] Back when I was in law school this type of group work drove me crazy.  I am a good team player professionally, but group academic work brought out the lone wolf in me.

[4] For example, a person who takes photos at a "Black Lives Matter" march, hoping the images will boost support for criminal justice reform, finds that their photos are being used by a political candidate who portrays the marchers as "the enemy."

[5] To carry forward my example, license for the photos could say "© NAME, 2020, to be used only with attribution and only after written permission.  For permission, please write to ADDRESS.  The author generally gives permission to those whose use will align with the author's values and agree to attribution."

[6] An injunction is a court order to "cease and desist" infringing use of the work.

[7] "Statutory damages" are those big numbers you used to see at the beginning of movies on video and DVD.  And although both mediums are quickly becoming a relic of the past, damages with fixed amounts set by law are not.

[8] The "actual" costs and damages created by the infringement.