Several years ago, Google came up with an idea to scan in a whole bunch of books and make them searchable, for free, for the public. They did this without a licenses from the copyright owners of the books, but contended that their use was not infringement.
Naturally, it went to court.
And today we have an answer from the Second Circuit: Google Books is Fair Use because the books are, themselves, transformative works.
While the case itself doesn’t mention fanworks, most law in the US is made by comparing situations and “arguing by analogy”, so the Google Books ruling has huge implications for fandom and the fan community. The bulk of the court’s analysis is focused on the first part of the Fair Use test: the “Purpose and character of the use”, aka whether or not a work is “transformative.” Although the “transformative” nature of a work is only one factor in the fair use test, it is often considered to be the most important part of the test, and the ruling in this case is no exception.
In this case, the court found that Google’s use of the text was transformative, both in the sense that it digitized the text, but also that it indexed and made the text searchable, comparing the function of google books, which isn’t to provide whole copies of books to consumers for free, but to provide ways for consumers to search for information in more than just web postings, similar to the function of thumbnail searching for images. (A practice which has already been held to be fair use, Perfect 10, Inc. v. Amazon.com, Inc, 2007.)
Finding transformative use where there has not been significant altering of the original work itself, but rather a transformation in how the original work is used, is extremely significant for fandom.
(From Fic: Why Fanfiction is Taking Over the World)
Though there haven’t been any direct rulings on the legality of freely shared fanfiction, there is a lot of misinformation and scare tactics that make the rounds periodically, claiming that we’re all just a C&D letter from being wiped off the face of the internet. In this case, the court found that,
‘Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it ‘adds value to the original’ and allows for ‘the creation of new information, new aesthetics, new insights and understandings.’ Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.
That’s what fanfiction does - its authors create new aesthetics, new insights and new understandings, in narrative form. The parallels are inescapable.
Expanding the definition of “transformative” to allow for uses of the original text that not only allow for new interpretation but allow for new uses that take from the source material and may or may not significantly change that source is huge for fanfiction, both as a matter of law and as a matter of public perception. Many people who are still arguing that fanfiction is illegal are claiming that it isn’t transformative enough. Fanfic is never going to supplant the original work; instead, fic writers are adding value to the original source by exploring characters and universes in more depth than the original is able to. Any ruling that expands the definition of what is considered a “transformative” work helps us.
The case will likely be appealed, but for now read the full ruling here.
This ruling comes at a perfect time, because I ran into at least two different people last week claiming that fanfic is illegal and that we could be shut down at any time.
Just because we don’t have a direct ruling yet doesn’t mean we’re on the wrong side of the law. An expanding definition of what “transformative” means is a good thing for everyone.