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When I was considering the question of the moral right to attribution and how unauthorized fan creativity relates to that concept, it struck me that there are two interesting issues from a theoretical perspective. The first is: who gets the credit? When I was in law school and discovered fan fiction, the reason why I got into intellectual property was because most of these stories had a disclaimer-no copyright infringement intended, these characters aren't mine, I'm not making any money, please don't sue. And as a student, my question was – does that work? Is that good enough? I was interested in these disclaimers because copyright law does not have an explicit place in the fair use test for evaluating disclaimers as a factor favoring a defense in the way that trademark law does. I, nonetheless, concluded that, in general, fan fiction was going to be fair use. It has yet to be litigated to any particular conclusion. Although cease and desist letters do so still go out, and fans still either comply or they say no, generally there is no result. That is, I think a lot of the copyright owners are unwilling to deal with the publicity and the possibility of finding this as fair use in a litigated case.

Publication Citation

28 Colum. J.L. & Arts 435-449 (2005)