ABSTRACT
Because exceptions to copyright must be adjudicated on an individual basis, fan fiction cannot securely be called either legal or illegal. Nonetheless, this chapter investigates the grounds for fan fiction’s legality—namely, its transformativeness—by teasing apart the legal and philosophical differences between parody and pastiche. The cases of SunTrust Bank v. Houghton Mifflin and Cariou v. Prince demonstrate that, although courts have found for the legality of similar cultural objects that revise and remix other published works, this legal footing may or may not extend to fan fiction since the litigants are either corporations with significant resources or artists whose fame factors in to the court’s finding for transformativeness. Cariou v. Prince thus cautions that judges’ artistic interpretations based on the standard of a “reasonable observer” often rely on broader cultural value judgments that disfavor the expressions of amateurs from minority communities.
