Intellectual property in an age of fanfiction
Crowdfunding platforms are providing new challenges for copyright norms and law
On February 24th, music video director Joseph Kahn uploaded his latest work to Vimeo. It was called Power/Rangers and was available for free. The film offered viewers Kahn’s vision of a gritty reboot of the kid classic Saturday morning show, Mighty Morphin’ Power Rangers. Pure Internet gold, in other words. The video quickly went viral. By the day’s end, it earned the high distinction of being a Vimeo staff pick. Power/Rangers was ready to hit the big time.
But then intellectual property law reared its ugly head. The next day, Vimeo staff removed Power/Rangers due to a copyright claim from Saban, the owners of the Mighty Morphin Power Rangers franchise. Viewers were predictably incensed; the Streisand Effect kicked into full gear as media outlets that had promoted the video one day condemned Saban the next.
Saban ultimately relented, and the video was brought back to Vimeo. Notably, however, this shifting of stances was not induced by a reconsideration of the legal merits of Saban’s copyright claim, but instead by this good old-fashioned public outcry. If Saban had upheld their claim, they likely would have prevailed — but at what cost, in terms of bad publicity?
Creators such as Kahn often rely on several arguments to defend the legality of their works: They may argue that they are transformative rather than derivative, or they may argue that the works are protected by the doctrine of fair use. Scholars are split on the merit of these arguments. But as illustrated in Kahn’s case, whether a given work is permitted by copyright owners may not ultimately be decided by the legal merits of a copyright claim as much as the ability of copyright holders to simply get away with taking down works without provoking public backlash. Fan works such as Power/Rangers or the incalculable corpus of fanfiction written by enthusiastic amateurs are often permitted not because the law sanctions these materials, but because copyright owners do not wish to fully enforce their rights.
One hard-and-fast boundary that few content creators dare cross is the commercialization of derivative works. In 2008, J.K. Rowling successfully sued the publishers of an unofficial Harry Potter encyclopedia on copyright grounds. 50 Shades of Grey was originally conceived as a piece of Twilight fanfiction, but certainly could not have been commercially published without rebranding itself as it did.
But new funding platforms are blurring the lines of what constitutes a commercialized work, and it’s unclear what sorts of legal quarrels this will provoke. The Kickstarter-funded Star Trek Continues managed to raise over $120,000 through donors and produced three freely-available unofficial episodes of Star Trek: The Original Series with the blessing of CBS, who owns the rights to Star Trek. Now content creators are embracing Patreon, where they are able to raise funds in exchange for producing free works, including derivative works. While it appears that Patreon officially forbids this practice, it is trivial to find accounts that are violating this rule. So far it doesn’t seem like copyright owners have moved against Patreon accounts, but it likely is simply a matter of time.
While fanfiction and other sorts of derivative works have created legal issues for decades, these new crowdfunding platforms threaten to upset the fragile balance which has allowed content creators to use copyrighted materials to produce freely-available unofficial works by blurring the connection between the general funding of creators and the actual production of derivative works. Consider the case of the popular Harry Potter and the Methods of Rationality (HPMOR) fanfiction, written by Eliezer Yudkowsky of the Center for Applied Rationality (CFAR.) Like most other works of fanfiction, HPMOR is freely-available; however, it took over five years to complete and was only finished in March largely due to an “extremely generous anonymous sponsor” helping to purchase a month of Yudkowsky’s time to finish the work.
Platforms like Patreon are clearly uncomfortable with a creator offering to produce derivative works in return for funding. It’s not clear how a more quid pro quo case would be handled where, for example, a known creator of derivative works is just attempting to raise funds without any explicit conditions being attached to the fundraising. The fact is that money is fungible, and the law has not begun to catch up with these new institutions that are very effective in indirectly subsidizing the creation of derivative works. From a purely economic perspective, the distinction between funding a creative effort by raising money from patrons versus selling the work commercially is less important than most people appreciate. Content creators themselves are divided on where normative lines on funding these works should be drawn.
It’s unlikely that clarity will be brought to these matters through formal judicial precedent — instead, precedent will be set through the court of public opinion when copyright holders overreach and outrage the public, as illustrated in the Power/Rangers example. Crowdfunding platforms have been responsive to DMCA notices, but in the future crowdfunding platforms may emerge that resist the usual tools used by copyright owners. Lighthouse, which crowdfunds using Bitcoin and advertises itself as providing “no country restrictions or limits” on the scope of projects that can be funded, provides an early glimpse into how these platforms may emerge. It is up to copyright owners to pick their battles in these domains wisely.
