Spoiler Alert! Legal Risks for Works Created by Fans

Fans are very possessive of the objects of their enthusiasm, and the internet serves to simultaneously enhance their enjoyment of—and their claim over—their favorite worlds and characters. By way of example, many viewers “live tweet” television shows, and participate in online chats with actors, directors, and showrunners. Many shows, movies and celebrities encourage the development of fan communities; for example, Star Trek provides links to fan sites, and World of Warcraft fans can access an official fan site kit. However, in celebrating their fantasies of choice, it is possible for fans to cross the line and find themselves in real world legal trouble.

Spoiler Alert!

At the end of every television episode, and just as soon as the credits roll on the latest entry in a multi-film franchise, fans will often take to the web to speculate about what will happen next. Some websites and the fans that run them will actively work to learn the secrets of the next episode, season or film, and then post those secrets online for other fans to read. Creators, aware of this, engage in tactics seemingly out of a Cold War spy thriller to thwart these efforts, but they do not always work. At that point they may turn to legal means to control the flow of information. For instance, before the premiere of this fall’s seventh season of The Walking Dead AMC engaged in a campaign to prevent spoilers, while for its part earlier this year HBO demanded that YouTube remove a video featuring fan-made predictions of the mayhem awaiting viewers in future episodes in the then current season of Game of Thrones.

Typically, media companies seeking to thwart the dissemination of online spoilers will send a cease and desist letter or a take-down notice to an ISP or web-host, raising claims of copyright infringement. In cases where a website has posted a video or audio clip from a television show or a movie, or images from a script, there is likely a valid claim of copyright infringement; after all, the fan site does not own the show or the clip.

What’s more, if the clip is from something that has not been released yet, then how did the site obtain it in the first place? If the source of the spoiler is someone who works on the show or the movie, that person may have violated contractual terms prohibiting them from disseminating any information about the property. In the event that a fan site were to actively seek out a source, they could theoretically be liable for inducing the source to break a valid and binding non-disclosure agreement.

On the other hand, pure fan speculation about what is going to happen next likely will not amount to copyright infringement, especially if not accompanied by images or clips from the movie or show. But it is often difficult to distinguish fan speculation from information obtained from sources involved in the production. The more difficult case is where a site reports a rumor that it has heard—“SPOILER ALERT!! Abe and Glenn die in the next episode;” or “Luke is Rey’s father!” In all likelihood, merely relaying such rumors may not be copyright infringement, as copyright laws do not protect facts alone, but that does not mean a cease and desist letter will not be forthcoming.

Indeed, last year Disney sent a take-down notice to fans posting images of figures from Star Wars: The Force Awakens purchased from Walmart. While the figures were legitimate, Walmart had apparently put them on sale early. As a result, Disney sought to take down the postings to prevent the dissemination of spoilers before the movie’s frantically anticipated release. This sparked a backlash by fans, many of whom found Disney’s conduct outrageous. Disney, however, refused to back down, and as the original poster did not have the resources to fight perhaps the world’s largest multi-media conglomerate, the image came down, and stayed down.

But I Included a Disclaimer….

Fans often believe that they can avoid legal trouble by using a disclaimer and by not charging for access to the work they create. This is not the case. Disclaimers and distribution at no charge offer no protection from a claim of infringement, and does not constitute a valid defense to a lawsuit.

For example, in 2016, a number of Pokémon fans released a fan-made video game, Pokémon Uranium. The game—which was distributed for free—featured a totally new storyline using characters based on Nintendo’s original Pokémon gang, all made up by the game’s creators. Quite predictably, once it discovered the would-be homage to its famous characters, Nintendo demanded that the hosting company stop distributing the game on the grounds of copyright infringement. The game was downloaded more than 1.5 million times before the host complied with Nintendo’s cease and desist letter and pulled it from its servers. That the game had been distributed free of charge was of no legal consequence.

It is worth remembering that nothing in copyright law creates an exception for fan’s subsequent usage of copyrighted material. As such, it is left to the discretion of each copyright owner just how much leeway it is willing to extend to its fans’ remixing, repurposing, and spoiler-sharing.

Many copyright owners will tolerate fan uses, up to a point. Paramount, the owner of the Star Trek franchise, drew the line at the creation of a crowd funded Star Trek spinoff called “Prelude to Axanar”. The unauthorized film utilizes, among other things, Star Trek-related settings, characters, species, clothing, and the made-up Klingon language, all drawn from previous works, and is now the subject of a pending lawsuit in California. While Star Trek director J.J. Abrams announced earlier this year that the case would be ending because it was not the right way to deal with the fans, the case continues to wind its way through the courts.

On the other hand, J.K. Rowling seemingly embraces fan fiction about the Harry Potter universe—which frequently comes complete with disclaimers such as “I do not own any part of the Harry Potter universe and no money is being made from this story.” Ms. Rowling’s history of forbearance aside, however, she could change her mind at any time and decide to assert copyright claims against the authors of Harry Potter fan fiction.

The Consequences of Infringement

In most cases, unauthorized use of copyrighted materials will result first in a notice letter or a take-down notice, or both. Fans on the receiving end of a notice letter often find it hard to believe that their work, often a labor of love, can be a copyright infringement, as their work was neither created for profit nor intended to literally copy the original. As noted however, neither the author’s profit motive nor his or her subjective good faith controls the infringement analysis, which focuses solely on the question of copying. Generally speaking, if an author reproduces, distributes, displays, or repurposes another’s copyrighted creations, a claim for copyright infringement is appropriate.

Most notice letters will point out that damages are available for copyright infringement, but many fans cannot believe that their work can result in monetary liability when they themselves have not made any money. In truth, however, even infringements distributed entirely for free may result in an award of money damages. In cases of copyright infringement, damages include all profits made from the infringement, including, by way of example, advertising revenue generated by an infringing fan site. In addition, even where an infringement has not resulted in any revenue, the creator of the infringing work may be liable for statutory damages–court-imposed damages that can reach $150,000 in cases of willful infringement. There is also potential liability for the copyright owner’s attorney’s fees.

Fan-made content may also infringe valid trademarks, giving rise to damages available under the trademark laws, including potential liability for the trademark owner’s attorney’s fees. Finally, in both copyright and trademark cases the courts can issue injunctions to stop infringement.

What About Fair Use?

Fair use is often raised as a defense to claims of infringement involving fan-made works. Four factors are typically considered in determining whether the appropriation of copyrighted materials is excused from liability under the doctrine of fair use: the purpose and character of the use (with educational and reporting purposes weighing in favor of fair use); the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market or value of the copyrighted work. Courts balance and weigh these factors when determining if there is a fair use; they are not formulaically applied, and some factors can carry more weight than others. This makes the application of the fair use defense very subjective, with no two courts applying it in the same manner. Therefore, fans cannot count on fair use as a defense to claims of infringement.

Many fans think that the fair use factors favor them and their projects, but they often misunderstand this most fact intensive and complex doctrine. By way of example, in a 1985 case, the Supreme Court ruled that a magazine’s reproduction of an exceptionally newsworthy and quite brief excerpt of a forthcoming book did not constitute fair use. Specifically, the case arose from President Ford’s autobiography, in which he discussed his decision to pardon President Nixon. Harper & Row, the publisher of the book, granted Time magazine the exclusive right to publish excerpts from the book in advance of its publication. Before Time could publish its excerpts, The Nation, a competing magazine, published, verbatim, a passage from the book totaling approximately 400 words relating to the pardon–the part of the book that most readers were interested in. As a result, Time withdrew from its contract with Harper & Row. The Supreme Court ruled that this was not a fair use because The Nation took the heart of the book, and because Harper & Row was denied the benefit of its agreement with Time. Under this precedent, a court could conclude that posting a spoiler may not be a fair use.

How to Stay Out of Trouble

The best way to avoid raising the ire of copyright owners is to use common sense. If you would not want someone to use your own creation the way you are planning to distribute and/or repurpose another’s copyrighted work, don’t use it that way. If you are not sure whether using your anticipated use is an infringement or otherwise violates the law, then check with a lawyer or the owner of the work. It is far better to ask and to be denied than to be on the receiving end of a notice letter or, even worse, a lawsuit.