We are exploring the law and economics of “literary fan art,” i.e. creative works of art that reimagine someone’s else literary work product, such as the various visualizations of the characters and story in Ernest Hemingway’s “Old Man and the Sea.” Because copyright laws extend to so-called “derivative works,” the legal question boils down to this: when does literary fan art constitute “fair use”? Alas, this inquiry is almost like that of ancient augurs, who (to paraphrase the late Ronald Coase) must somehow divine the future by the minute inspection of the entrails of a goose, for the fair use doctrine is one of the most nebulous areas of the law.
Simply put, as unbelievable as what I am about to tell you may sound, there is often no way of knowing ahead of time with any degree of certainty whether any particular derivative work constitutes fair use or not! Why is the fair use test shrouded in so much fog? Because this test does not consist of a simple, clear-cut, bright-line rule, e.g. you may use up to 10% of another person’s work. Instead, fair use is a standard consisting of a set of general guidelines. (For a good overview of the difference between “rules” and “standards” in law, check out this helpful introduction by our friend and colleague, the legal theory wizard Larry Solum.) Specifically, when a court is deciding whether a work of fan art or some other type of derivative work constitutes fair use, it is supposed to apply four general factors. What are these factors? In a case involving literary fan art, we can restate them as four separate questions:
- How “transformative” is the fan art?
- Is the fan art based on an original work of fiction (like a play or novel) or on an original work of non-fiction (like a biography), and in either case, has that original work been published yet?
- How much material is the creator of the fan art stealing or borrowing, as the case may be, from the original work?
- Does the fan art help to increase or decrease sales of the original work?
What weights should be attached to each factor, i.e. which factor is the most important one? Or, if the factors are to be equally weighted, what happens when two of the factors point in one direction and the other two point in the other direction? Courts are coy when it comes to fair use; they refuse to say! (As an aside, if I were declared “copyright law emperor” for a day, I would eliminate the first three factors and tell courts to focus on the last one, or to be even more precise, I would reformulate and simplify the fair use test as follows: no infringement unless the owner of the original work can produce evidence of lost sales.) As a practical matter, then, the scope of the fair use defense is fuzzy at best, or in the words of one copyright lawyer (shout out to Rich Stim): “Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court.” As a result, most questions of fair use never get answered, which might be a good thing! I will explain why in my next post …