Posted by Eugene Volokh: The Copyright Vampires Will Suck Your Blood, Stephen Bainbridge. [1]Stephen asks me whether he can get away with posting fan fiction that crosses Elric of Melnibon� (created by Michael Moorcock) with Anita Blake (of Laurell Hamilton's Anita Blake, Vampire Hunter series).
I'd counsel against it. The fan fiction would use enough of the Moorcock and Hamilton material -- enough character attributes and allusions -- to constitute "copying" for copyright purposes (even if the only things that they literally copy are the names). To avoid liability, Stephen would have to argue fair use. But while parody that pokes fun at the original, or otherwise comments on it, is often a fair use (see the 2 Live Crew case, Campbell v. Acuff-Rose), parody that simply uses the original to poke fun at something else is generally not a fair use. Thus, for instance, the Ninth Circuit held that an item about the O.J. trial that borrowed from Dr. Seuss infringed the Seuss copyright, because it commented on O.J. but not on Dr. Seuss. And while one can often argue that any use of someone else's work (especially a humorous use of a serious work) in some way comments on the original, the Ninth Circuit case shows that courts are often skeptical of such arguments. It sounds like Stephen may be trying to mock Hamilton's work, but unless the submitted item comments (in a way that the court will recognize) on both Hamilton and Moorcock, then he's in trouble. Finally, note that this analysis relies on the fact that Stephen's blog has advertising, and thus would be treated as commercial, which is a big strike against a fair use. Parody and commentary that critique the original may be fair use even if they're commercial; and other uses may be fair use if they're noncommercial. But if a court rejects the parody/commentary argument and the use is commercial, then the fair use claim becomes quite weak. All this is just a general answer. It's hard to tell for sure if one hasn't seen the actual work, and with fair use it's hard to tell for sure even after one has seen the actual work. Still, I'd warn my colleague off his plan -- at least unless he insists that the submitted fiction pretty clearly mock both Moorcock and Hamilton. References 1. http://www.professorbainbridge.com/2004/12/an_anita_blake_.html _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
