Sherlock Holmes and the Case of the Lucrative Fandom: Recognizing the Economic Power of Fanworks and Reimagining Fair Use in Copyright

Abstract

“Fan” culture in the guise of fan-created works like fanfiction, fanart, and fanvids is often connected in the popular imagination with the Internet. However, “fandom” has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom, long before the age of the Internet. Despite their persistence, fanworks have long existed in a nebulous gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. While paying lip service to a requirement of aesthetic neutrality, such analyses tend to become bogged down in unarticulated artistic judgments that hinge on a court’s personal interpretations of the work in question. One outcome of this emphasis on aesthetic value has been a de-emphasis of the market harm factor of fair use, whose examination has come to be subsumed by courts’ aesthetic judgments. This de-emphasis of the financial aspect of fair use has strong implications for the realm of fanworks. Fanworks have historically been considered to have little aesthetic value by the dominant culture, which can lead to a knee-jerk finding of infringement in an aesthetic-based fair use analysis. However, both old, venerable fandoms like Sherlock Holmes and new works funded by Kickstarters tell us that fanworks can actually enable further creativity by the copyright-holder and increase the value of the original work rather than detracting from it. Shifting the focus of fair use to a market-based approach would prioritize economic returns over artistic opinions. This can correct the imbalance worked by aesthetic value judgments of free works that cause no economic harm, recognizing that fandoms often operate as market facilitators, not market rivals. This Article examines the phenomenon of fandom and its effect on the original works that have inspired it through the medium of both “old” fandoms that pre-date the Internet age and “new” fandoms that have come of age in a digital world. This Article argues that active fandoms producing a large amount of fanworks tend to aid the goals of copyright. It further posits that fair use analyses should be re-focused on ensuring a meaningful examination of the effect on the market factor that avoids the taint of the courts’ aesthetic judgments. A renewed appreciation for the effect on the market factor would result in a more accurate application of the fair use doctrine that would acknowledge the role of fanworks and their participatory culture in supporting the economic incentive motivation of copyright.