Is it Fair to be a Fan? Fan Site Infringement and Fair Use

People often surf the net to find out information about their favorite television shows, movies, actors, actresses, and musical acts. Sometimes surfers use sites licensed to disseminate information about a particular person or show like People, TV Guide or E!online. There are even many shows and movies that have their own in depth website offering all the most current information about the show or singer like Buffy, the Vampire Slayer, Clay Aiken, Kelly Clarkson and others.

But then, there are those sites that are like guilty pleasures. The sites that an individual can go to in order to find out all the scoop that other sites will not print. Or maybe there is a fan site that does an extraordinary job of compiling all the information available on a particular person or show. When it is the individual fan site, there is always information of when and where did they get their information. Is it original content, or is it a reproduction of something that they found somewhere else and transcribed or scanned and than uploaded onto their fan site? Many of these fan sites face copyright issues in the majority of their content and are a copyright infringement suit waiting to happen.

Part I will discuss the history of copyright from early England to present day America. Part II will discuss the six exclusive rights afforded to copyright owners including the right to reproduce, the right to distribute, the right to make derivative works, the right to perform publicly, the right to display publicly and the right to perform sound recordings via digital audio transmission. Part III will discuss defenses to infringement including the statute of limitations and estoppel, abandonment, innocent infringement and fair use. Part IV will discuss the areas of infringement currently engaged in by fan site operators with their use of text, photographs, audio, video and fan fiction. Part V will address who is being infringed, and Part VI will talk about their responses to date. Finally Part VII will conclude the paper with a discussion as to where we are presently and what the future looks like.

Copyright protection has been in existence since the inception of the United States. The earliest protection arose in England in the 1500s when the first books were published. When it began, copyright protection preserved the monopoly rather than serving its present goal of fostering creativity.[1] Response to the protection of rights for the publisher was not very well received, and monopoly-like protection expired in 1694. In order to reclaim protection, publishers shifted the focus onto the authors.[2] In the early 1700s, the English Parliament responded with the Statute of Anne, a fourteen year period of exclusivity for authors and their assigns. This is the precursor to modern day copyright protection.[3]

Following the American Revolution, the Framers recognized the need for copyright protection. Many colonies that had already enacted statutory protection, so the Framers included copyright protection in the Constitution. Article I, Section 8, Clause 8 provides:

"The Congress Shall have Power . . . To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."[4]

Shortly after the ratification of the Constitution, Congress passed the Copyright Act of 1790. Early protection was only for maps, charts and books. Additionally, there were also many requirements for registration before protection could take effect. Once in position, the protection covered the same fourteen year period as the Statute of Anne, with a fourteen year renewal period if the author was still alive.[5]

A second Copyright Act was passed in 1909. This Act allowed:
(1) state common law protection for unpublished works;
(2) federal protection commencing at the time of registration;
(3) a maximum copyright term of 56 years (28 year initial term with a 28 year renewal term); and
(4) notice and publication requirements for all registered copyrights.[6]

With the advent of new technology, there were several new types works produced that would also benefit from copyright protection. Motion pictures, phonographs, radio and television were all areas not covered by the 1909 Act. In order to protect these and other areas of authorship, Congress passed the Copyright Act of 1976. This act also preempted state copyright protection[7] for works once they were fixed in a tangible means of expression.[8] For the first time, fair use was recognized in the 1976 Act.[9] The term for copyright protection was listed as the life of the author plus an additional 50 years.[10] Later amendments have extended the term an additional twenty years after the death of the author and have relaxed the notice and registration requirements for copyright protection.[11]

The arrival of the computer age brought all new avenues for copyright infringement. In order to protect author's rights, Congress enacted the Digital Millennium Copyright Act (DMCA). One part of the DMCA makes it illegal to circumvent technology meant to control access to works. The other part of the DMCA makes it illegal to remove the information that identifies copyrighted works, also called "copyright management information."[12] Copyright management information is defined as "any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:" (1) the title or other identifying information of the work; (2) the name or other information of the author of the work; (3) the name or other information about the copyright owner of the work; (4) the name or other identifying information about the performer of the fixed work; (5) the name or other identifying information about the author of an audiovisual work; (6) terms and conditions outlining the requirements for use of the work; (7) identifying numbers or symbols; and (8) any other information that the Register of Copyrights may prescribe by regulation.[13]

There are several rights given to a copyright holder as provided in Section 106 of the Copyright Act including the right to reproduce the copyrighted work, distribute copies or phonorecords of the copyrighted work, the right to public display of the copyrighted work, the right to public performance of the copyrighted work, the right to make derivative works, and the right to perform sound recordings via a digital audio transmission. Copies are "material objects, other than phonorecords, in which a work is fixed by any method now know or later developed" and phonorecords are "material objects in which sounds, other than those accompanying a motion picture or audiovisual work, are fixed by any method now known or later developed."[14]

a. Right to Reproduce the Copyrighted Work
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The first of these is the right to reproduce the copyrighted work in copies or phonorecords. The statute makes no difference between a reproduction that is made public, and one that is kept private. The infringement is in making the copy, whether or not it is shared with others.[15] There are several limitations on the right to reproduce the copyrighted work, which also relate to computer technology. Reproductions of sound recordings are limited to "recapturing the actual sounds fixed in that recording."[16] There are also limited exceptions for computer programs. The owner or lessee of a computer may copy a computer program if the copy is made solely by virtue of activating the computer,[17] the computer lawfully contains an authorized copy of the program,[18] the only purpose of making the copy is maintenance or repair of the computer,[19] and the new copy is destroyed as soon as the maintenance or repair is completed.[20]

The second exclusive right available to the copyright owner is the right to make derivative works based upon the copyrighted work. This right is also known as the adaptation right.[21] The right to make derivative works does not require that a reproduction of the copyrighted work be made. The courts have found infringement where a defendant bought a book of artwork, cut out the pictures of the works and adhered them to cement tiles. The Ninth Circuit held that the defendant had transformed the work and that the first sale doctrine did not serve to transfer the right to make derivative works to the defendant.[22] However, the Seventh Circuit came to a contrary result. The remounting of lithographs was not the creation of an unauthorized derivative work and there was no infringement.[23] There are some limitations on the right to make derivative works. Where the author has made an infringing derivative work, he may not sue another for the portions of their work that infringe because he has unclean hands for the creation of his unauthorized derivative work.[24]

The third exclusive right of the copyright holder is the ability "to distribute copies or phonorecords of the copyrighted work to the public by the sale or other transfer of ownership, or by rental, lease, or lending."[26] Unlike the reproduction right, the distribution right does require public interaction in order to constitute infringement. There are also limitations on the distribution right just like with the reproduction right. The "first sale doctrine" states that once a copyright owner has sold a particular copy of a work, the owner forfeits all right to control the resale of that particular copy.[27] The theory is that once the copyright owner receives the payment for the initial sale of the work, they have gotten their economic reward to which they are entitled.[28] The exception to the first sale doctrine applies to the rental of records and computer software. In order to rent out copyrighted records and computer software in a commercial setting, the copy holder may be required to pay a royalty to the copyright owner. In addition, the first sale doctrine does not apply to the distribution of illegal or pirated copies of copyrighted works.[29]

The fourth exclusive right given to copyright holders is the right to publicly perform the copyrighted work.[30] A performance is defined as meaning to "recite render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible."[31] This right only applies to works that are made public. There is no restriction from performance within the confines of your own home, including members of your family or small circle of friends. The Court has found that renting out a room with a VCR and multiple seats for a "private" viewing is actually an infringement on the public performance right.[32] Public performances also include a transmission, either in person or by the use of a device, to a substantial group of people outside of the normal circle of friends and family. Additionally, there are rights in the actual performances of live music that are statutorily protected.[33] There are anti-bootlegging provisions preventing unauthorized broadcasts or fixation of the performance, and provisions preventing the reproduction and distribution of unauthorized fixations. There are exceptions to the public performance right including non-profit performances where the money is going to a charitable use, educational use, distance learning over the Internet, and others.[34] The public performance right does not cover the area of sound recordings, which are addressed in the right to perform via digital audio transmission.

Sound recordings made prior to 1972 were not covered with federal protection for copyright infringement. At that time, their only coverage was state protection.[37] Sound recordings are currently defined as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects such as disks, tapes, or other phonorecords in which they are embodied."[38] The exclusive right to perform via digital audio transmission, the last exclusive right covered by the Copyright Act, covers sound recordings. This exclusive right is rather recent, having been added in 1995 with the Digital Performance Right in Sound Recordings Act (DPRSRA).[39] With technology advancing so quickly in recent years, it is now a possibility to make a near perfect digital copy of a sound recording. There are also several services on the Internet that make downloading and archiving sound recordings simple and easy.[40] There are some limitations set forth by DPRSRA. Radio and television stations licensed by the FCC offering "free" programming - paid for by advertisers rather than the public - are exempt from licensing fees. Even if the television and radio stations are to later utilize digital technologies, they are still exempt. However, they are still held to music licensing requirements as set forth in the right to public performance using licensing agencies like BMI and ASCAP.[41]

The statute of limitations for a copyright infringement suit is "three years after the claim accrued."[42] When there is a continuing infringement, the statute of limitations runs from the last act that infringes. On a computer and Internet situation, it is likely that the infringement would run from the last time that an individual infringing work was uploaded or modified on the fan site. If a copyright owner unreasonably or unnecessarily delays the infringement suit and the Webmaster took that delay as an acknowledgment that their actions were okay, they may have a laches defense.[43] Estoppel is the third defense. This is not so much a time defense as one based upon the defendant's reliance on the plaintiff's actions supplying them with the belief that what they were doing was allowed.[44] This defense has four parts: (1) the party to be estopped has to know the facts; (2) the party to be estopped must intend for his behavior to be relied upon by the other party; (3) the infringing party must not be aware of the facts; and (4) the infringing party must rely on the estopped party's behavior to his injury.[45]

Infringement of a copyright occurs regardless of the intent of the person who is infringing the work.[47] It does not matter that the person doing the infringing knew of the other work, or whether they had access to the other work when making their own. Ignorance of copyright law is not the same thing as innocent infringement. When the Webmaster is making an unlawful reproduction of a copyrighted work not knowing that it is illegal, he cannot claim innocent infringement. Innocent infringement is not a factor in determining liability. The step of the infringement where the intent of the infringing party is a factor is in the determination of statutory damages for registered copyrighted works. Where there is no intent to infringe that is proven, the trier of fact may decide to award only nominal statutory damages. Where there was knowledge of the other copyrighted work, the trier of fact may award damages based on a sliding scale of $750 - $30,000. And where there is willful infringement, the trier of fact may increase the award of statutory damages to $100,000 - $150,000.[48]

Fair use is the most important defense asserted in copyright cases, because of its frequency and the policy behind the defense.[49] Fair uses include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research.[50] The fair use defense is predicated on notions of equity and common sense and is determined on a case-by-case basis. There are four factors in a fair use determination: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[51]

The first consideration, the purpose and character of the use, focuses a great deal on the commercial nature of the infringing work. It is not fair use for a photocopying store to make casebooks from copyrighted materials without paying licensing fees, even where the same action of making copies of each part would be fair use if done by the teacher.[52] If the nature of the entity committing the infringement is commercial, there may be no fair use defense, even where the reason for the infringement is scholarship or research.[53] However videotaping is considered a fair use, because the purpose is time shifting so that the item may be viewed at a later time.[54] However, at that time, there was no archiving of videotapes expected like there is today. There was also not the consideration of the types of technology that are present in our society. In the present, there are machines and software to transfer videotapes to the computer, and the newest technology includes Tivo and digital video recorders, which will save your programs to DVD. There have been no cases that have further addressed this particular issue.

The next consideration is the nature of the copyrighted work. This is based upon a continuum of creative and informational works. The more creative the work and the greater amount of original submission by the author, the more likely the work is to be protected by copyright. The closer the works comes to the informational, historical and factual representation, the less likely it is that it will be covered by copyright protection. There is no protection for facts. The one exception is that you cannot take the facts of one author and use them to get out of researching and gathering the same facts on your own.[55]

The third consideration in a fair use analysis is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Over time the analysis has moved from one of the quantitative aspects of infringement to the qualitative aspects. Where the infringing portion of the work goes to the heart of the matter of the original work, fair use will not be found.[56] In Harper and Roe, the defendant had obtained a pilfered manuscript of Gerald Ford's biography. Prior to the plaintiff's publication, the defendant used that work in his or her own work. The Court felt that although only 300 words were used out of a body of work constituting more than 220,000, the defendant chose the most important part of the work to include in his own. Even though it was not quantitatively substantial it was qualitatively substantial.

The final consideration in a fair use analysis, the effect of the use upon the potential market for or value of the copyrighted work, is the one that the courts have put the most focus on. The fact that the plaintiff has not entered a particular market does not preclude them for bringing an infringement claim.[57] In Castle Rock, the defendant made a trivia game based on the characters of the television Seinfeld. The defendants argued that the material contained in the trivia was precluded from copyright protection because it was derived from the facts of the show. The court held that elements of a fictional show are never facts; therefore they do qualify for copyright protection. Additionally, whether or not the plaintiffs had exploited a potential market is irrelevant to the determination of whether the infringing work could harm that potential market. The courts have also determined that infringement may deny the copyright owner of monies that they may have received had the infringement not occurred.[58] In the Church of God case, the court found that the reprinting of religious materials denied the original congregation of weekly donations they might receive for the lawful use of the materials. The court felt that the second congregation not only utilized infringing documents, but that their use also hurt the plaintiff's potential market because it encouraged members to go to the second congregation to worship.

There are several areas of possible infringement on a fan website. There are also several different types of fan websites. There are websites devoted to a show or movie. These are the websites that have received the most attention in the courts to this time. Twentieth Century Fox has been persistent is quashing sites affiliated with their copyrighted works. In the late 90s, the studio began sending cease and desist letters to many webmasters demanding that they remove infringing material from their websites.[59] Fans of shows like The X-Files,[60] Buffy, the Vampire Slayer,[61] and Angel[62] often set up personal websites devoted to every element of the show.

The second type of website is devoted to an individual actor or singer. This type of website is just as probable to contain infringing material, but may be more likely to slip under the radar of the studios because it is not devoted to a show or movie per se. Sites like this are widespread on the Internet, including those on Sarah Michelle Gellar,[63] Alyson Hannigan,[64] Gillian Anderson,[65] and Kelly Clarkson.[66]

The main element that makes the Internet different than other areas of infringement is the ease at which material may be accessed and viewed. Search engines like Yahoo! and Google put any topic at the Internet browser's fingertips. After a web surfer types in the search request, a listing of websites discussing the topic appears. Many queries result in tens of thousands of applicable websites. Not only are the sites listed, but a person merely has to click on the link to be transported directly to the website. Much of this may be done from the comfort of one's own couch while sitting in front of the television dressed in pajamas eating a pizza and drinking a beer. The age is gone where a person has to jump in the car and go to the library to find out what movies Katherine Hepburn starred in. A web surfer merely has to log into Yahoo! and enter Katherine Hepburn in the search area. A listing of all websites with information about her will be listed. Plus, savvy web surfers may know the sites to go directly in order to find out information about their favorite stars (www.imdb.com, www.hollywood.com). Plus, the ease of copying is another factor to consider. A Xerox machine is not required to make copies of information on the Internet. There is no need to even carry around the vast amounts of paper that have piled up and littered the past. With the use of computers, copying is much simpler. To copy text, the Internet user needs only to highlight the information and then cut and paste it into a word processing program. Material is then saved and can be used in multiple future documents. To copy pictures and photographs, the user needs only to right click and "Save Picture As . . ." In essence, publication of materials on the internet is as close to the literal definition of public as may be achieved because it enables viewing by more than the normal family and social acquaintances.[67]

The first area of copyright infringement is in the textual offerings of the fan website. There are both infringing and original contributions on a fan website. Some websites may reproduce full copies of the episode/movie for individual web surfers to view.[68] Others may merely provide episode recaps. In addition, there are several websites on the Internet, which provide spoilers to upcoming episodes of television shows.[69] Within many fan sites, there will be a news section providing information about the show or its stars. There is also the possibility of infringement where the site reproduces news articles by either transcription of the article or by scanning the article and placing it wholesale on the Internet. The scanning of articles into a computer and then their publication on the Internet is blatant infringement because the reproduction is identical in every respect. There is no fair use application for this because it is a total replication both quantitatively and qualitatively.[70] There are sites that avoid this type of infringement. Several sites merely link to the online location where the article may be found.[71] Therefore, the Webmaster avoids a suit for infringement, and the news may be dispersed to a particularized audience. There is also a possibility for infringement when the website reproduces and distributes the song lyrics or sheet music to a particular musical composition.

Not only do fan sites contain textual information, they often have galleries of pictures containing the celebrity the website is a supporter of. There are several places that these photos come from. Many fan sites use the online photography agencies that post their pictures for sale on the Internet.[72] Other fan sites will cull the photos from other websites with a shared interest in the same show or personality. Yet still other webmasters will scan photographs from a print publication and present it to the Internet community on their website. Courts have held that thumbnail copies of photographs do not infringe, but a full-scale reproduction of the same picture would be infringement.[73] The court in Arriba Soft held that the use of the photos was not to show a full size photograph of the copyrighted work, but to direct the user to another site where the work could be viewed. More recently the Ninth Circuit vacated that decision and remanded the infringement claim for thumbnails and full size pictures.[74]

The DMCA has provisions that make it illegal to remove "copyright management information." This is the information about where the picture comes from and who owns the copyright. The Copyright Act states that no person shall provide copyright management information that is false or distribute information that is false. Additionally, no person shall intentionally remove or alter any copyright management information or distribute the copyrighted work without that information or with altered copyright management information.[75] There are many fan sites that take copyrighted photographs, remove the copyright management information and then put the domain name of their fan site on the print as a signifier of where the photograph came from. In the process they are wiping out all the information about who the legal copyright owner is. Removing this information makes it much easier to reproduce the photograph into infinity without any actual idea about where it came from. There is also less likelihood that the web surfers perpetuating the infringement by making numerous reproductions would even be aware that they are committing an illegal act of copyright infringement and that they could be held liable.

Many websites offer varying types of audio files. There are interviews with celebrities that they have gotten from other sources. Some fan sites offer sound clips from episodes or movies that are popular to viewers and web surfers. There are also sites that offer the songs that either appear on the show or movie or are sung by the celebrity.

One of the main considerations for an infringing use may be the way in which the audio file is posted on the Internet. Some audio files are available for downloading, which would undoubtedly be an infringement. But there are audio files that are streaming rather than available as a download. When a file is streaming, the user may listen to that file while he or she is on the Internet, but once they leave, the file cannot be accessed again until they return to the Internet. There is a marginal possibility that fair use might be afforded to a streaming musical offering that could not be downloaded. There are also sites that merely offer a portion of the song, rather than the whole recording. These are the most likely to be found to fall into the fair use factors because of several things. First, the sound bit is not the entire sound recording. A song is not the same when it is only a portion of the work. Many of these introductory sound bits only lead up to and do not include the climactic portion of the song.[76] Second, the bit of song may actually benefit the copyright holder. When a person who has not been introduced to their work hears the bit, they may be encouraged to go out and purchase the original copyrighted work. In that case, there would actually be a benefit to the market rather than harm.[77]

A significant number of website have video offerings. Just like the audio offerings, there are several different types of video. Some sites offer scenes from the television episode.[78] Willow's Alley offers clips over every scene that the character of Willow Rosenberg (Buffy, the Vampire Slayer) appears. Since Willow is a principal character in the show, there are multiple video clips for each show. Infringement is possible because when viewed together, the clips may divulge a substantial amount of the show both qualitatively and quantitatively.[79] Another area of infringement is the inclusion of interview clips from various sources. Usually airing in other television programs, these clips provide information about the celebrity or the projects that they are working on. Although summarizing the content of the clips may not be infringement, it is possible that making the clip available could constitute infringement if directly posted on a fan site rather than the site of the copyright owner. Additionally, there are several sites where fans make their own home produced videos. These may either be their versions of the trailers of movies or music videos using popular songs and clips from their favorite episodes.[80] Courts have held that personally made film clips and trailers placed on the Internet infringe.[81] One reason is the possibility that the information conveyed is not in the same light as the copyright owner may wish to show. Other reasons are that the content of the trailer might not be the same as information that the studio would want released. There are also questions of length. The studio may only release a thirty second trailer, while a private individual may make one five minutes or longer if they wished. There is also the possibility that if the trailer is not very good, the people viewing it on the Internet may mistakenly believe that it was licensed and supported by the studio.

Another category of work contained on many fan sites is fan fiction. What fan fiction is taking the characters of a television show or movie and placing them in a situation other than the one that was contained in the original or any authorized derivative works. It is not a category of work that is authorized by the studio, but there are several places where it can be obtained for your favorite show (Buffy, the Vampire Slayer, The West Wing, JAG, The X-Files, etc.).[82] Many of the sites also have areas where disfavorable scenarios are set up. These include slash (homosexual situations between characters on the television show who are not portrayed as homosexual), shippers (relationships between characters that are not portrayed on the television show), and violence that the characters would not normally engage in as they are written for the television show.[83] All of these works are unauthorized derivative works following the guidelines of Anderson v. Stallone.[84]

Many webmasters include disclaimers about the use of copyrighted material on their fan fiction site. Whether or not there is a disclaimer on their site does not lessen the fact that their reproduction is an unauthorized use if the copyright holder does not license it. Meridith McCardle addresses the fact that many fan fiction sites also use disclaimers that state that the story is fan fiction, it is taken from X show, the characters are merely borrowed rather than taken, and that the fan fiction is for fun rather than for profit.[85] McCardle goes on to state that many of these authors of unauthorized derivative work are under the impression that their work will not infringe, and if it does would be covered by the fair use defense because they are not posting the story for a profit. However, it should be recognized that noncommercial use is still infringement and will not protect a defendant from liability.[86] But the use of a disclaimer may make it more likely that a court would reach a fair use finding.

The amount of people that are infringed goes well beyond the studio that created the work. The creator of the work is presumptively its author and the owner of the copyright.[87] It has also been held that the person who exercises a high degree of control over a film operation, such that it shows his vision and conception of what the film looks like, he shall be the author as it is meant by the Copyright Act.[88] For joint works, like movies and television shows, it is a "work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."[89] Each joint owner must contribute copyrightable expression, not just ideas or facts.[90]

There are other infringed parties besides the studio. There are the print publications from which articles and photographs are scanned and posted online. There are the music studios that have unauthorized reproductions of their sound recordings on the Internet. There are the songwriters who have unauthorized copies of their lyrics and the sound recordings may infringe the underlying musical composition. In addition, there are also the show creators. The people who developed the characters and write for them. All of these parties have had their exclusive rights infringed as described by � 106 of the Copyright Act.[91]

So far, copyright owners have taken two responses. The first is the cease-and-desist letter. The second is no response. There are reasons for both, and neither has proven to be free of controversy.

Cease-and-desist letters are generally not well received by the Internet public. Cecilia Ogbu discusses the blackouts and protests that many fan site operators have tried to get organized. In addition, many webmasters have given out the information of the studio and the address so that angry web surfers may fire off an angry letter or e-mail.[92] But studios are worried about their properties. In the case of Fox, they didn't want their failure to act to preclude them from future actions for infringement. Also the studio is responsible to other parties for licensing agreements and pay-per-use provisions.[93] Not removing the infringing use may impede the studio's lawful use.

The other response is no response. Many infringed parties either don't know the extent of the infringement, or don't care about the infringement. They may see the infringement as increased exposure to their work that may even result in higher profits for the copyrighted work. Meridith McCardle also addresses the point that the work often does not have an effect on the market to which the copyright owner has a right.[94] However, that is not often a factor in the fair use analysis because the focus is on the ephemeral potential market. There have not been any major cases dealing with fan sites and copyright infringement to this date. This is still a new area of law and computer technology, but shows promise to make it to the courts in the next few years as people push the infringement boundaries.

So, now we know that there is online infringement. The question is where is it going to go from here? Cease-and-desist letters seem to be the prevalent method of control so far. Many fan site operators are teenagers and young adults who cannot afford the legal costs associated with a protracted legal battle. When they are sent a cease-and-desist letter, many shut down their fan site or remove the infringing material. As of yet there has been no David to fight the Goliath of the entertainment industry.

There is the question of whether personal fan sites are fair use. Many of the fan sites are of a noncommercial nature. The Webmaster runs the site because they like a particular show, movie or celebrity rather than as a brilliant money making scheme. Many of the operators also pay a sliding scale monthly web fee based on the amount of traffic that their site is getting. But the real issue here is the proliferation of material on the Internet. If an individual site provides unauthorized and infringing content, that material has the possibility to reach the majority of the world population. The issue becomes one of control - what the fan site puts out there versus what the copyright owner wants out there.

In the future, there is a great possibility that one of these cases may actually make it to court. At that point, the Internet as it is today could change remarkably if it is found that personal fan sites containing infringing material are not covered by fair use. Because everyone knows that the best information does not come from the official site.

1. McCardle, Meridith, "Fan Fiction, Fandom, and Fanfare: What's All the Fuss?," 9 B.U. J. Sci. & Tech. L. 433, 436 (2003).

2. Ogbu, Cecilia, "I Put Up a Website About My Favorite Show and All I Got Was This Lousy Cease-And-Desist Letter: The Intersection of Fan Sites, Internet Culture, and Copyright Owners," 12 S.Cal. Interdisc.L.J. 279, 301 (2003).

3. Schechter, Roger E. and John R. Thomas, Intellectual Property, The Law of Copyrights, Patents and Trademarks. Thompson West Publications, 2003, p. 13 - 15, 17, 63, 115, 119, 122, 136, 199, 207 - 209, 213.

Law
1. United States Constitution, Article I, Section 8, Clause 8.

2. 17 U.S.C.A � 101, 102(a), 106, 107, 109, 110, 114(d), 117(a)(1), 117(a)(2), 117(c), 301, 302, 507(b), 1101, 1202.

Case Law
1. American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994).

2. Anderson v. Stallone, 1989 WL 206431, 1989 Copr.L.Dec. P 26,427, 11 U.S.P.Q.2d 1161, C.D.Cal., Apr 25, 1989.

3. Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2nd Cir. 1998).

4. Childress v. Taylor, 945 F.2d 500 (2nd Cir. 1991).

5. Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59 (3rd Cir. 1986).

6. Columbia Pictures Industries, Inc. v. Garcia, 996 F.Supp. 770 (N.D.Ill. 1998).

7. Columbia Pictures Industries v. Redd Horne, Inc., 749 F.2d 154, 159 (3d Cir. 1984).

8. Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993).

9. Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960).

10. Harper & Roe, Publishers, Inc., et al. v. Nation Enterprises et al., 471 U.S. 539 (1985).

11. International News Service v. Associated Press, 248 U.S. 215 (1918).

12. Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003).

13. Kelly v. Arriba Soft Corp., 77 F.Supp.2d 1116 (C.D.Cal. 1999).

14. Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997).

15. Lindsay v. RMS Titanic, 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999).

16. Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988).

17. Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).

18. Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

19. Suntrust Bank v. Houghton-Mifflin, 268 F.3d 1257 (11th Cir. 2001).

20. Video Pipeline v. Buena Vista Home Entertainment, 342 F.3d 191 (3rd Cir. 2003).

21. Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000).

Websites of Interest
United States Copyright Office

Search Engines
Google
Yahoo!

Entertainment Search Engines
www.hollywood.com
Internet Movie Database

Fan Sites
Alyson Hannigan Corner
Buffyverse Dialogue Database
BuffyWorld
City of Angel
The City of Angel
The Complete X-Files Page
Gillian and David: The Archives
Gillian Anderson Almost Naked & Eating Pie
Kelly Clarkson.org
Kelly Clarkson
Rohan's X-Files Realm
Sarah Michelle Gellar Eternal Flamewebsite
Smgfan.com
Television Without Pity: Angel
The X-Files Timeline
Willow's Alley

Fan Fiction
The Annex
The Kitten, The Witches and The Bad Wardrobe (Buffy, the Vampire Slayer)
Tribute to Leyla (The X-Files)

Music Videos
Buffyverse Music Video Database
Lizaria Dot Net

Photographic Agencies
Corbis
Getty Images
Rex Features
Wire Image

Spoilers and News
E!online
People
TV Guide

Ain't It Cool News
Ask Kristen on E!online
Slayage.com

a. Time and Estoppel Restrictions