That is the title of my most recent work-in-progress, and it is available here via SSRN. Inspired by my friend and colleague Brian Frye’s frontal attack on plagiarism norms, especially his thought-provoking paper “Plagiarism is not a crime,” my work explores the related problem of “literary fan art,” i.e. unauthorized derivative works by third parties that are based on someone else’s literary work product. Literary fan art poses a difficult legal and economic puzzle: how far should property rights extend in the domain of literature? That is, because copyright laws extend to derivative works, the legal question often boils down to this: when does fan art constitute “fair use”? To motivate the paper, I present some notable examples of contemporary literary fan art inspired by Ernest Hemingway’s classic novella “The Old Man and the Sea.” Next, I show why the traditional fair use standard is utterly unhelpful in solving the fan art puzzle, and then I sketch an alternative Coasean solution to the problem of fan art: the law should assign property rights in fan art to the fans.
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