Everyone has a favorite television show, or book, or comic strip. But what are loyal fans to do during the (sometimes lengthy) period of time in between seasons of a TV series or installments of a series of books or movies? Are fans of the Fox series “House, M.D.” supposed to watch the Major League Baseball games that are being broadcast the entire month of October in lieu of regular programming? Reread favorite books until the binding splits or watch videocassettes until they break? For the fan with Internet access, the answer is clearly no. All fans need to do is to type in the name of their favorite book or movie into a search engine, and the answer is at their fingertips. The explosion of fan culture on the World Wide Web is a phenomenon that is impossible to ignore. While some sites serve as a meeting place for fans to discuss aspects of their favorite works, share spoilers for future episodes or novels, or simply commune with other like-minded individuals, a major activity of fan culture is the creation of new works of art or literature featuring their favorite characters in a variety of settings. While most fanfiction is noncommercial in nature (and authors are very vocal about the fact that they make no money), this fact alone does not insulate such authors from legal liability for the body of work that they are posting on the Internet and making available to anyone, in any country, with web access. While suing individual authors of fanfiction may be impracticable, does this mean that the copyright holder is without remedy? After all, the right to create derivative works is one of the six exclusive rights afforded the copyright holder under Section 106 of Title 17.1  What if an author finds a particular category of fanfiction, such as adult-themed work, particularly problematic or offensive? One possible solution is the imposition of third-party liability on the parties who own and operate websites on which the work of many authors is included. Two theories of third-party liability on which authors may rely are contributory infringement and vicarious infringement. Contributory infringement requires both knowledge on the part of the third party and a material contribution to the infringement. “[O]ne who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”2  A person who deliberately sets up a website for the purpose of posting fanfiction is clearly acting intentionally. Whether he believes that posting such content is an act of infringement is debatable. Questions of fact such as the receipt of cease-and-desist letters by the website owner or any of the authors whose work is posted on his website will certainly be relevant. Under Napster, which I will discuss in greater length below, the court held that actual knowledge of specific infringing uses was not necessary, merely that the owner of the website knows that the site is being used for infringing activity in general.3  The element of contribution can arguably be met; although an fan author could post his work on his own website rather than that of a dedicated “fanfiction” website, the inclusion of many pieces of fiction in one location make such sites more easily accessible and more popular than if the would-be reader had to navigate from individual web page to individual web page. By maintaining a dedicated “fanfiction” page, the owner is inducing others to write their own derivative works and to post them for all to read. While contributory liability stems from enterprise liability, vicarious liability is based on principles of agency law, and requires that the third party have the right and ability to control the infringing conduct as well as a direct financial interest in the infringing conduct.4  Owners of particular websites are ultimately in charge of the content that appears on their various pages. If the owner allows submissions from the general public, he or she also has the ability to delete content with which he disagrees or that he feels will subject him to harassment or potential legal liability. The element of direct financial benefit, on the other hand, will be difficult to prove, as practically nobody makes any money from the authorship of fanfiction. However, the individual fan authoris not the defendant in a third-party case, but the website owner, and many sites to which this work is posted are supported by advertising.5  If these advertising revenues go beyond the cost of setting up and maintaining the sites, this may provide a nexus to commercial gain, which would justify holding the website owner liable under a theory of vicarious infringement. Similarly problematic is the nature of vicarious liability as an offshoot of respondeat superior. Even if both the necessary elements are met, it may be difficult to characterize individual fan authors as agents of the fanfiction website in any context. Perhaps an analogy to a peer-to-peer file sharing case will put the above issues in context. In A&M Records, Inc., v. Napster, Inc.,6  the Ninth Circuit held that the plaintiff had a likelihood of success on the merits for both its claims of contributory and vicarious infringement against Napster, and that a preliminary injunction was appropriate. However, Napster is factually somewhat different from the case of fanfiction websites. The infringing files in Napster were exact copies of plaintiff’s copyrighted works,7  which weighs against the defendant’s claim of fair use,8  as opposed to the transformative nature of most works of fanfiction. Weighing against fanfiction website owners is the fact the court in Napster upheld liability even though the central server did not maintain copies of the works themselves, but merely an index of names which allowed users to obtain the infringing copies from one another, whereas fanfiction sites store and facilitate distribution of potentially infringing content. Moreover, in Napster, even if specific files were removed at the request of the copyright owner, it was highly likely that another individual would “fill the gap” and provide another copy almost immediately. Within the Napster system, there would be a plentitude of anonymous sources of the exact same infringing file. Whereas, once an individual fan author discovered his or her fan authorship had been removed, he or she would be less likely to upload it somewhere else for fear of direct action by the copyright owner. His or her reading public might not have copies of the same authorship to repost. Therefore, in the case of fanfiction, individual instances of infringement could be targeted more effectively and permanently. While, in any case, a suit for direct infringement against the individual authors themselves is always possible, turning off the tide of unauthorized derivative works at the source is far easier and more effective for the copyright owner than to pursue (potentially) millions of individual defendants. Such theories of third party liability as contributory and vicarious infringement make the enforcement of copyright practicable for the modern author of creative work.

Sources

1   In order to succeed on a claim of contributory or vicarious infringement, the copyright holder/plaintiff must prove that direct infringement has taken place. Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1371 (N.D. Cal. 1995). It is possible that a copyright owner could sue an individual fan author in name, with the understanding that he will seek relief entirely from the named third parties, as was the case in Universal City Studios, Inc. v. Sony Corp. Of America, 464 U.S. 417 (1984).
2   Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
3   114 F.Supp.2d 896, 917 (N.D. Cal. 2000).
4   Fonovisa, Inc. v. Cherry Auction, Inc., 76 F. 3d 259 (9th Cir. 1996).
5   For example, www.fictionalley.org (Harry Potter fanfiction/fanart) features banner advertising at the bottom of the page.
6   239 F.3d 1004 (9th Cir. 2001).
7   239 F.3d at 1011.
8   Id. at 1016.

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