Good news everyone! Last week I was at the 2016 San Diego Comic-Con to talk about “Fan Films and Fair Use.” To my surprise, another fan film was the talk of the convention. It’s called Fan-O-Rama – A Futurama Fan Film. Here’s the trailer:
Fan-O-Rama is a live-action take on the (moderately) popular Fox and Comedy Central cartoon Futurama, which ran from 1999-2013, with a few breaks in-between. Futurama was created by Simpsons creator Matt Groening. My official legal opinion is that Futurama was hilarious and you should go watch an episode after you’re done reading this blog post.
Fan-O-Rama was created by Dan Lanigan. It certainly seems like a lot of work was put into it, and as of this writing, the trailer has been viewed over a million times. They had a prominent booth at Comic-Con featuring cast members, props, costumes, and a screen showing the trailer on repeat. I searched their website and couldn’t find any indication that Lanigan had obtain a license from Fox, the Futurama intellectual property rights holder.
Rumor has it that Matt Groening himself stopped by the Fan-O-Rama booth and gave the creators the thumb’s up. But, of course, that’s not the same thing as written legal approval from Fox, the intellectual property rights holder. Can Fox bring a legal claim against Lanigan and any other producers of Fan-O-Rama?
Copyright Fair Use
If Fox sued, Lanigan would ask the court to determine that Fan-O-Rama is a “fair use” of the underlying copyright in Futurama.
As a reminder, the U.S. Copyright Act outlines four factors to be considered to determine whether a use is fair:
- The purpose and character of the use. This factor also brings into consideration whether the use is “transformative.”
- The nature of the copyrighted work.
- The amount and substantiality of the portion taken.
- The effect of the use upon the potential market.
Factors 2 and 3 look like layups for Fox. Futurama is clearly a creative, fictional work and is entitled to the full measure of copyright protection. And Fan-O-Rama appears to use all of the major characters, sets, and plot points from the show.
Factor 4 might also lean in Fox’s favor. Presumably, if Fan-O-Rama is successful, it could compete in the marketplace against an officially licensed live-action Futurama movie. Of course, the counter-argument could also be made: a hit fan film could drive more viewers to the official Futurama. This is the eternal paradox of Factor 4.
Finally, we come to Factor 1, which is typically the most important and most controversial factor. Does a fan film “transform” the original work by adding commentary or context? In recent years, courts have been more likely to find works to be transformative, but I’m unaware of any recent court decisions that have to do with fan films (or fan fiction) specifically. Lanigan might be able to prevail on this point, but it would require a long, expensive legal battle to get there.
Trademark Fair Use
Trademark law is more likely to be a problem for fan film creators. When most people talk about “fair use,” they’re referring to copyright law, but trademark fair use is a different matter entirely.
I wrote about “nominative fair use” at some length way back in 2013 in my blog post “Is it the Super Bowl or the Big Game?” A fan film like Fan-O-Rama would most likely not meet the requirements for nominative fair use that I detailed in that post. Fan-O-Rama appears to extensively use not just the name Futurama, but other “source identifiers” such as the names of characters and an adapted version of the Futurama logo. I also doubt that simply referring to the work as a “fan film” is sufficient to defeat any claims of trademark infringement or dilution. (For more on trademark dilution, check out my 2012 blog post on Ben & Jerry’s.)
So even though Lanigan and the Fan-O-Rama folks may be able to assert a fair use defense to a copyright infringement claim, they are most likely still vulnerable on the trademark side.
I’ve appreciated the lively discussion about fan films in some previous blog post comment threads. What are your thoughts about Fan-O-Rama and fan films in general? Should the law be lenient towards fan film creators, or should they be required to go through the licensing process?