Culture of the Future: Adapting Copyright Law to Accommodate Fan-Made Derivative Works in the Twenty-First Century

Fan-made derivative works based on works of popular culture have a growing importance in twenty-first century culture, and in fact represent the rebirth of popular folk culture in America after a century of being submerged beneath commercial mass-media cultural products. The Internet has enabled what scholar Lawrence Lessig calls a “read/write” culture where ordinary Internet users are empowered to become active creators of culture rather than mere passive consumers. Yet, if this exciting trend is to continue, the copyright laws of the twentieth century must adapt to accommodate the possibilities of the twenty-first. This Note describes the importance of amateur, fan-made derivative works in the new folk culture of the twenty-first century and demonstrates how this culture is under attack by the creators of the popular works to which it pays tribute. It describes how overreaching copyright claims by media companies cast a considerable chilling effect on vibrant new art forms such as fan fiction, fan-made videos, and virtual worlds. Finally, this Note argues that the Copyright Act must be amended to (1) explicitly clarify that non-commercial, transformative works are fair use, (2) ban the use of the Digital Millennium Copyright Act (“DMCA”) takedown process and automated copyright filters to block this type of content, and (3) provide real penalties to deter copyright owners from abusing copyright law to suppress legitimate, follow-on creativity.