This Comment discusses, by focusing on the treatment of fan fiction, the tension a court faces each time it encounters a fair use doctrine analysis. First, this Comment describes the nature of fan fiction, the two types of fan fiction referential works and participatory works, and the potential commerciality of fan fiction. Second, this Comment analyzes courts' treatment of referential works and explains why courts have not encountered participatory works. Next, this Comment discusses that while courts have guided authors of referential works regarding how to create a non-infringing work, courts have yet to consider how to protect participatory works. Accordingly, this Comment proposes that courts treat participatory works similarly to how they treat parodies under the fair use doctrine because both types of works must borrow from the respective original works to fulfill their respective purposes.
Rachel L. Stroude,
Complimentary Creation: Protecting Fan Fiction as Fair Use,
14 Marq. Intellectual Property L. Rev. 191
Available at: https://scholarship.law.marquette.edu/iplr/vol14/iss1/11