We started by considering the "traditional" copyright-oriented theories about fan fiction, which focus on some ill-reasoned principles under the 1909 Copyright Act. We disposed of the parody/satire issue as probably irrelevant. We saw that, at least in a theoretical sense, "copying" is not the best way to analyze fan fiction, which depends far less upon copying than it does upon allusion.1 We took a short detour through common-law theories of unfair competition to reach trademark law.
Trademark law itself has some interesting barriers to analyzing fan fiction, but many of those barriers proved illusory (instead of allusory). The "no commercial use" defense depends upon too-narrow a view of commerce. Instead, most of the controversy revolves around "likelihood of confusion," including both actual likelihood and the various theories of relief. In the end, the best theoretical framework falls somewhere between trademark dilution and trademark disparagement (or tarnishment, to use the more-traditional language).2
The biggest barrier to this reconceptualization is not inherent in trademark law, but in the procedure surrounding trademark law. Basically, the rules of civil procedure place such huge procedural advantages on asserting a copyright theory—the strict-liability standard and the remedies are merely the most obvious procedural advantages to copyright litigants—that only the most marginal cases can (or will) proceed on a trademark theory. That means we're going to remain mired in the problems created by bad precedent that has become ossified, even though we have moved at least from the Cretaceous Period to the early Quaternary Period. Nonetheless, doctrine remains fossilized. And on poor theoretical foundations, precisely because it doesn't consider the "living descendants," in the legal or artistic sense.
So, where does that leave the poor fan fiction author? Probably confused. If, that is, he/she cares about the legal issues in the first place. Although from a systemic perspective the owners of the original properties should ignore copyright theories and use trademark theories to protect their respective turfs, it's not in their individual best interests to do so. And, therefore, they won't. I'm afraid that we're therefore stuck with copyright-like theories for the foreseeable future. Perhaps what we really need is another Portugeuse minor nobleman to come along and eviscerate everyone with a masterwork—if only because a twenty-first-century Don Quixote would at least force everyone to look at the whole context. In short, the only way we're going to get this resolved is if somebody produces some really good fan fiction—probably "better" than the original—and has the resources to try to defend it.
- For an excellent basic discussion of one variety of fan fiction that particularly illuminates the distinction between "copying" and "allusion," see Teresa Nielsen-Hayden, "Namarie Sue" (04 Dec 2003).
- Although, as noted previously, "tarnishment" is the more-traditional term, "disparagement" is more accurate because we're not dealing with the connoted physical product, but strictly with a reputational element of an inchoate property. This is far from the only misleading or over-limiting term in intellectual property (itself, perhaps, an example) and entertainment law.
[A]n accepted pattern of using words is often prior to certain lines of thinking and forms of behavior…. It is not so much in these special uses of language as in its constant way of arranging data and its most ordinary everyday analysis of phenomena that we need to recognize the influence it has on other activities, cultural and personal.
Benjamin Lee Whorf, The Relation of Habitual Thought and Behavior to Language, reprinted in Language Thought and Reality 134, 134–35 (1956). Cf. Bleisten v. Donaldson Litho. Co., 188 U.S. 239, 249–52 (1903) (photographs are entitled to copyright protection, although they are not writings).