Jyme Mariani


This Thesis examines the situation that de los Rios and other fan filmmakers face because of the inherent conflict fan films have with the original author’s intellectual property rights. It outlines the culture and specifics of fan fiction and the different subgenres within it and their relationship with one another. This Thesis also traces the origins of fan films to gain a better understanding of why filmmakers create them and the potential legal battles that have developed over time. The potential legal issues discussed address the rights of the original author and how courts have interpreted copyright protection for individual elements as well as the work as a whole. This Thesis also suggests several solutions to the fan film/original author dilemma that allows both parties to fulfill the goals of copyright laws.

This Thesis outlines the state of U.S. copyright law and advocates that de los Rios and other fan filmmakers do have a right to create their own works if they adhere to certain guidelines.6 I argue that fan films should be classified as non-derivative works or, in the alternative, be considered fair use. Fan films, unlike most other forms of fan fiction, exist as a stand-alone, not-for-profit endeavor that is neither easy nor cheap to produce. In fact, fan films may actually increase the value of the original work rather than take profits away. Intellectual property theory supports allowing fan filmmakers to create films if they follow certain criteria, so that they are rewarded for their labor and also to encourage more creativity. Fan filmmakers today often evolve into the Hollywood filmmakers of tomorrow. As a whole, fan films serve a positive role that benefits the public without seriously limiting the intellectual property owner’s ability to profit or to create or to license derivative works.

Part II of this Thesis dissects fan fiction as a whole and analyzes its beginnings and how fan films fit into the overall genre. Part II also defines the different elements of fan fiction and how fan films both differ and conform to the rest of the genre. Part III looks at what fan films essentially are and how they fit into culture by tracing their roots as backyard fun to their emergence onto the Internet. It also examines the most popular source works for fan films and the attitudes of the original authors toward the user-generated media. Part IV delves into the legal arguments and issues involving fan films, including an analysis of derivative works and what elements can be protected. Part IV also describes the litany of tests that courts can use to determine the level of protection a character may receive as well as the easier analysis for protection of plot elements and ideas. Part V shows how fair use fits into the legal equation by walking through the four factors. Part VI offers possible solutions to the fan film infringement dilemma. Part VII concludes with the idea that fan films should not be deemed infringing and should exist in harmony with source works as opposed to them.