Research On The Copyright Of The Fan Fictions

At the end of the 1980 s,the creation of fan works began to rise in China.Due to the good interactivity and the low threshold of creation,fan fiction is the most common form of the fan works.Relying on the popularity and the development of the Internet,this niche hobby gradually caught public attention and came into the vision of the original work’s copyright owners.As the fan fiction is a secondary creation based on the original works for individual interpretation,there is no doubt that the characters,the plots and the backgrounds of the original works will be borrowed in varying degrees,and the copyright owners of the original works have different attitudes.It is unavoidable to cause disputes.Regarding the legal status of the fan fictions,the rights conflict it may cause and the solutions of it,there is no clear stipulation of the current copyright law in China,and there are debates in the academic circles.This paper conducts a study on the Jin Yong v.Jiang Nan,based on the legal nature’s affirmation of the elements borrowed from the original works in the judgment of first instance,analyzes the legal nature of fan fictions with the method of jurisprudence,studies the copyright conflicts between fan fictions and original works with the method of normative research,draws on the US fair use system with the method of comparative analysis,and puts forward suggestions for the protection and regulation of the copyright of fan fictions in China.This paper is divided into five parts.The first part gives a brief description of the Jin Yong v.Jiang Nan,collates the plaintiff’s and defendant’s defense opinions on whether the article written by Jiang Nan constitutes copyright infringement,and clarifies the main focus of the case.It shows that the legal status of fan fictions is not clear yet,and there are copyright conflicts between them and the original works.And it is difficult to apply the fair use system in our country.The second part discusses the definition of the fan fiction and defines it as a novel completed by borrowing elements from existing works for secondary creation,and concludes that the fan fiction has the main characteristics of borrowing from the original works,the specificity of the creative subject,the locality of the scope of transmission,and the diversity of the types.The third part confirms the legal status and classification of the fan fiction.The analysis shows that fan fiction is original and reproducible and belongs to the "works" stipulated by China’s copyright law.According to the content of the judgment of the Jin Yong v.Jiang Nan,the differences of the nature of the original works’ elements borrowed by the fan fictions are analyzed,and the fan fictions can be divided into deductive fan fictions and non-deductive fan fictions.The fourth part discusses the conflicts of the personal rights and economic rights between the deductive fan fictions and the original works.There is no constitute substantial similarity between the non-deductive fan fictions and original works,and there is no copyright infringement,either.The fifth part analyzes the feasibility of the co-existence of the fan fictions and the original works with law and economics research methods,and proposes suggestions to clarify the legal status of fan fictions,to improve the fair use system,and to promote Creative Commons License to protect and regulate fan fictions.