Copyright Wars - Episode I: The Fandom Menace?

20 August 2020


Fan fiction involves stories written by fans that use characters, themes, and settings from existing works of fiction. They span a wide array of genres, from imaginative twists on tales set in the Star Wars universe, to narratives told using gender-swapped versions of characters, or even the "re-sorting" of Harry Potter characters into different Hogwarts "houses."

With the rise of self-publishing and online platforms, there has been a surge of interest in fan fiction. But what are fan fiction authors allowed to do with these characters and universes created by others, and when does the work infringe the copyright of the original? Things can get even more complicated when authors evolve their fan fiction into a distinct world, in some cases incorporating many of the themes developed in their fan fiction communities. One recent example is the dispute between Zoey Ellis and Addison Cain, two authors whose works fall within the Omegaverse erotica genre, which itself originated in online fan fiction groups. Ms. Cain had filed copyright infringement notices requesting takedowns of Ms. Ellis' works. Ms. Ellis then sued in the United States, arguing, among other things, that her works merely contain tropes common to the Omegaverse genre.

What constitutes copyright Infringement?

Copyright will subsist in any original literary, dramatic, musical, or artistic work. Section 3 of the Canadian Copyright Act (the "Act") states that copyright owners have the "sole right to produce or reproduce the work or any substantial part thereof."[1] However, protection under copyright has its limits.

As set out by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada ("CCH"), copyright law protects the expression of ideas, but it does not protect ideas in and of themselves.[2] This means that the inclusion of common themes or tropes is not necessarily enough to show copyright infringement. One of the challenges is that many stories, when distilled to their core ideas, can appear quite similar. For example, the story of a young man who, one day, discovers he has magical powers and is then drawn into a larger conflict only to find out his origin ties to the villain of the story, could equally describe Star Wars or Harry Potter. However, the expression of these ideas in these two stories is dramatically different.

Fortunately, the Supreme Court of Canada has provided guidance on how to determine copyright infringement. In Cinar Corporation v. Robinson—a copyright infringement case involving two children's programs based on Robinson Crusoe—the Supreme Court of Canada held that determining whether a "substantial part" of a work has been reproduced requires a qualitative and holistic analysis.[3] The cumulative effect of the copied features has to be considered in determining whether such features amount to a reproduction of a substantial part of the creator's skill and judgment expressed in the copied work as a whole.[4] The Court agreed with the trial judge's approach of giving little weight to the common generic elements existing between the two stories. For instance, elements such as the beaches, luxuriant vegetation, and bananas were, "at best, a 'minor' similarity,"[5] while the reproduction of the particular combination of characters with distinct personality traits, all living together and interacting on a tropical island, was a reproduction of a substantial part of the skill and judgment expressed in the creator's work as a whole.[6]

Whether a fan fiction story reproduces a substantial part of the original work will depend on the particular facts of that case. However, by using characters and settings from existing works, fan fiction is, by its nature, closer to the line of copyright infringement.

Possible exceptions Under the Act

Even where fan fiction crosses that line, it may nevertheless be permissible under exceptions provided by the Act, such as fair dealing or non-commercial user-generated content.

Section 29 of the Act states that fair dealing does not infringe copyright if it is "for the purpose of research, private study, education, parody or satire."[7]

For fair dealing to apply, the work must be used for one of the allowable purposes and the use must be fair. In determining whether a work can fall under fair dealing, the Court can consider:

  1. the purpose of the dealing (e.g. whether the work is for commercial purposes);
  2. the character of the dealing (e.g. how widely the work is distributed);
  3. the amount of the dealing (e.g. the proportion of the original work being copied);
  4. alternatives to the dealing (e.g. whether or not there are other options available for use in the work);
  5. the nature of the work (e.g. whether the work will remain unpublished); and
  6. the effect of the dealing on the work (e.g. how the new work will affect the market value of the original work).[8]

In some cases, fan fiction works may fall under the parody or satire purposes, though as with copyright infringement, assessing fair dealing will depend on the particular facts of a case.

The Act also includes an exception for "non-commercial user-generated content" which could be applicable in the context of fan fiction works. Section 29.21 of the Act permits individuals to use an existing work in the creation of a new work in which copyright subsists and to use that new work, or authorize an intermediary to disseminate the new work, subject to several conditions:

  • the existing work must have been published or otherwise made available to the public;
  • the use of the new work must be done solely for non-commercial purposes;
  • the source (including the name of the author, performer, maker or broadcaster, if available) of the existing work must be mentioned, if it is reasonable in the circumstances to do so;
  • the individual must have reasonable grounds to believe that the existing work was not infringing copyright; and
  • the use of, or the authorization to disseminate, the new work does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.[9]

The courts have not yet directly considered this provision of the Act and, as such, it remains to be seen how broadly it will be interpreted. Given that fan fiction works often tell new stories within the existing work's universe, it will be particularly interesting to see how the courts apply the requirement that the work does not have a substantial adverse effect on the exploitation or potential exploitation of the existing work or on an existing or potential market for it.

Fandoms and the fan fiction coming out of those communities will only continue to grow and along with it, questions of when inspiration crosses the line into infringement.

Assessing copyright infringement is a challenging fact-based question. If you are a fan fiction author interested in commercializing and spinning out your work into your own distinct world, or if you are an author and you believe someone's fan fiction has copied your work, seeking legal advice is an important first step to understanding your rights.

[1] Copyright Act, RSC, 1985, c C-42, s. 3(1).

[2] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 8 [CCH].

[3] Cinar Corporation v Robinson, 2013 SCC 73 at para 35.

[4] Ibid at para 36.

[5] Ibid at para 41.

[6] Ibid at para 46.

[7] Copyright Act, RSC, 1985, c C-42, s. 29.

[8] CCH, supra note 2, at para 53.

[9] Copyright Act, RSC, 1985, c C-42, s. 29.21.


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