Reprinted with permission from volume 17 of the Loyola of Los Angeles Entertainment Law Journal, 1997 (17 Loy. L.A. Ent. L.J. 651)

🙂

The article ends with a sentiment that we argue is too restrictive:

Copyright owners should be able to defend their creations against pure copying and against harm to market share. These two uses form a boundary that is easily policed and that fulfills the legitimate goals of copyright law. When no lucrative market share is sought and productive use is made of copyrighted characters, fan fiction should be recognized as expressing a protected and valuable form of human creativity – if only in the margins.

As Nina Paley points out in Understanding Free Content, free enterprise is part of free culture too. The only necessary monopoly is that on identity: attribution should be preserved (and easily is — it gets easier, not harder, the more copies there are). Just because a business model is successful when done via monopoly does not mean that the monopoly is justified. If New York City gave me exclusive right to allocate parking spaces, I’d get very rich, but that wouldn’t make it a good law from the public’s point of view.

The points Rebecca Tushnet is making about fan fiction apply to everything. Let’s stop dividing up culture into areas that deserve freedom and other areas that don’t. They all deserve freedom.

Thank you! I’ve updated the reference in the article now.