Legal Risks of "Fan Works" from the Clash Between Xiao Zhan's Fans and AO3

　　The hottest event in the past two days is the Xiao Zhan and AO3 controversy.

A brief explanation of this matter: Xiao Zhan's fans felt that a fan fiction about Xiao Zhan insulted him, so they reported several fan fiction platforms, causing issues with the platforms and angering the entire fan fiction community.

　　In this issue, a lawyer from Guangdong Zhiming Law Firm interprets the legal issues related to "fan works."

What is a "fan work"? What is the legal concept of a "fan work"?

The term "fan work" comes from the Japanese "doujin". However, it originally derives from the Book of Changes - "Heaven and Fire, People of the Same Mind", referring to a time of great unity when all people share the same aspirations. The Japanese term "doujin" is also speculated to originate from the Book of Changes, given that both are part of the Eastern cultural sphere.

Simply put, a "fan work" is "semi-original" + "semi-borrowed", meaning a secondary creation based on the original work. This includes not only fan fiction but also fan art, fan games, fan music, etc. Here, only fan fiction is discussed. "Fan work" is not a strict legal concept. From a legal perspective, it should fall under what China's Copyright Law calls "adapted works". However, the concept of "fan works" does not entirely overlap with "adapted works".

　　Does a "fan work" constitute infringement?

To some extent, "fan works" use creative elements from the original work during creation, which is why they face copyright scrutiny. They may potentially infringe on the original creator's rights to attribution, integrity of the work, adaptation, and remuneration.

Whether a "fan work" constitutes infringement generally considers the following issues:

First, whether the original work is still within the term of copyright protection. If the original work has exceeded the copyright protection period, derivative works do not constitute infringement.

Second, it is necessary to consider the degree and manner in which the derivative work borrows elements from the original work. If it merely borrows character images but creates an entirely new story structure, it is generally considered not to constitute infringement. If it rewrites based on retaining the original work's plot, it must be determined on a case-by-case basis.

　　What is the current attitude in China's judicial practice toward whether "derivative works" constitute infringement?

China is currently in an awkward situation where copyright protection is not yet complete, but the demand for cultural innovation is urgent, and the law remains in a vacuum regarding "derivative works."

The first copyright dispute involving derivative elements in a novel was the case of Xuanting Company v. Zhang Muye. In this case, Zhang Muye, the author of the "Ghost Blows Out the Light" series, transferred all property rights of the series to Shanghai Xuanting Entertainment Information Technology Co., Ltd. (hereinafter referred to as Xuanting Company), and later created "The Golden Captain: The Nine Nether General" (hereinafter referred to as "The Golden Captain"). Xuanting Company sued Zhang Muye, claiming that his creation of "The Golden Captain" used derivative elements from the "Ghost Blows Out the Light" series, constituting copyright infringement and unfair competition. The court ruled that Zhang Muye's use of derivative elements from "Ghost Blows Out the Light" did not constitute copyright infringement or unfair competition. The reasons were that, although Zhang Muye had agreed to transfer the property rights of "Ghost Blows Out the Light" to Xuanting Company and authorized the company to re-create the work, the creative elements such as character names, images, relationships, and tomb-raiding methods in "Ghost Blows Out the Light" were too simple to constitute expression and were not protected by copyright. Additionally, since the copyright transfer in the agreement was not exclusive or exclusive, Zhang Muye had a legal basis for using the creative elements from "Ghost Blows Out the Light," and his use was not for free-riding purposes, thus not constituting unfair competition. Therefore, this article assumes that even if the copyright transfer agreement in this case included an exclusive license, Zhang Muye would still have the right to use elements such as character names, images, relationships, tomb-raiding rules, and taboos that are not protected by copyright. This case has guiding significance for the trial of derivative novels. In this case, the Pudong Court established the principle for judging copyright infringement in novel types: "Characters are tools, plots are the core."

The author believes that derivative works innovate the original work from different aspects, creating new economic benefits. Copyright is not protected for the sake of protection but for the sake of innovation. The purpose of establishing copyright is to encourage innovation, achieving a balance and mutual promotion between protecting original creators and protecting public interests. Therefore, legitimate and healthy derivative works should be protected, allowing derivative authors to create value from them. However, it is worth noting that an important driving force for the development of derivative culture is the fan economy. Derivative works largely rely on the fan base of the original work. Once they enter the market, they may encroach on the original work's market share. Therefore, in addition to potentially constituting infringement, improper use may also constitute unfair competition.

References: Li Dongni, Reflections on the Infringement Issues of Fan Works

Shen Jun, Analysis of Copyright and Anti-Unfair Competition Issues in Fan Works

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