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Sherlock Holmes and the Case of the Lucrative Fandom: Recognizing the Economic Power of Fanworks and Reimagining Fair Use in Copyright

2015; University of Michigan Law School; Volume: 21; Issue: 2 Linguagem: Inglês

1528-8625

Stacey Lantagne,

Law in Society and Culture

Fan culture, in the form of fan-created works like fanfiction, fanart, and fanvids, is often associated with the Internet. However, fandom has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom long before the age of the Internet. Despite their persistence, fanworks have long existed in a gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. Although these analyses pay lip service to a requirement of aesthetic neutrality, they tend to become bogged down by unarticulated artistic judgments that hinge on a court’s personal interpretations of the work in question. One outcome of this emphasis on aesthetic value has been a de-emphasis of the market harm factor of fair use, the examination of which has come to be subsumed by courts’ aesthetic judgments. This de-emphasis of the financial aspect of fair use has strong implications for the legality of fanworks. Mainstream culture has historically considered fanworks to have little aesthetic value, which can lead to knee-jerk findings of infringement in aesthetic-based fair use analyses. However, both old, venerable fandoms like Sherlock Holmes and new works funded by Kickstarter demonstrate that fanworks can actually enable further creativity by the copyright-holder and increase the value of the original work rather than detract from it. Shifting the focus of fair use analysis to a market-based approach would prioritize eco* Assistant Professor of Law, The University of Mississippi School of Law. Thanks to Michele Alexandre, William W. Berry III, John M. Czarnetzky, Jack Wade Nowlin, E. Farish Percy, Hans P. Sinha, the participants of the 2013 Junior Scholars Virtual Colloquium, and the University of Houston Law Center and Institute for Intellectual Property and Information Law for helpful comments.