When I saw that Marc Greenberg was writing a book discussing the legal issues surrounding fan fiction, fan art, fan films, cosplay, etc., I was intrigued. First, I was interested in seeing how Greenberg discussed these issues. These topics are difficult to tackle because the law is always changing, and the guidance attorneys look to—namely court decisions—can be sparse in this area. Second, the opinions of attorney can vary in regards to this topic. Some believe fan-created works should always be found to be acceptable under the law, some believe fan-created works should almost always be found to be unacceptable under the law, and some believe the question of whether-or-not a fan-created work is acceptable under the law depends on the circumstances. Finally, I was looking forward to reading this book because I’ve had the pleasure of meeting Marc a few times at Comic-Con. I find him to a very knowledgeable lawyer, and I was intrigued to read more about his insights on these topics.
Overall, Greenberg’s Fandom and the Law walks a fine line between trying to appeal to both attorneys and creators and occasionally stumbles while doing so. It falls short in providing a thorough evaluation of the risks fan creators may face. Nevertheless, Fandom and the Law provides a great overview of some of the legal issues surrounding fan-created works.
In Fandom and the Law, Greenberg utilizes a mix of legal and practical advice, along with examples, throughout the book. He attempts to provide enough background knowledge in the law to educate creators on the risks they face, both from content owners and from those who might exploit their works. He also dives into some topics and areas of the law that are not relevant to creators and would only be beneficial to attorneys, such as evaluating case strategy and motion practice. This can make for uneven reading. At times, it felt like I was back in law school listening to a law professor, which makes sense considering Greenberg has been teaching law for decades.[1]
When discussing the law, the book primarily draws from case law or disputes that involved pop culture intellectual property. Some examples Greenberg discusses, such as ComicMix and the Star Trek Axanar case, I have covered previously in my blog. While it is a nice way to narrow down the scope of the book, it does leave some case law out that can be relevant to discussions involving commercial sales of art, copyright, rights of publicity, and trademarks. Failing to do so might give readers the impression that intellectual property laws are more favorable to fan-created works than they actually are. Greenberg appears to be in favor of fan-created works, and occasionally, the book seems to minimize the legal risks fan-creators might actually face.
The law surrounding fan-created works continues to evolve, and, as mentioned above, attorneys have differing opinions on the legality of such works and the levels of legal risk these fan-created works face. Some of the cases Greenberg discussed in his book resolved differently than anticipated after the book was published, and there are currently pending cases before the U.S. Supreme Court that may alter the law going forward. In my opinion, it is important for creators to understand that any time they are using something that they did not create in their work (such is the case in most fan-created works) they are at some risk. As whole, Greenberg’s book can be read to impart this advice, but it would have been nice to have it more explicitly laid out for aspiring creators.
Overall, Fandom and the Law is an accessible read that will be beneficial for creators or attorneys looking for a better understanding of legal issues surrounding fan-created works.
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[1] Sorry Marc, but it’s true.
