Are fan fiction and fan art legal?

By Lauren Davis:
'Fan fiction and fan art are both enormous components of our popular culture, a way we retell our favorite stories just as humans have always retold myths and legends. But sometimes creators, publishers, and studios claim that works of fan art and fan fiction violate their copyright. So is that Supernatural fanfic you're working on legal, or should you worry about the lawyers coming a-calling?
Top painting: Besame Mucho by Isabel Samaras, and a fine argument for fair use.
This is a question that gets asked a lot in the comments and warrants a detailed discussion. Fan works are an important part of our cultural landscape. Retelling stories and remaking artworks offers us new perspectives on familiar cultural works, and it's part of our nature as human beings to imagine different versions of the same stories, "what if" scenarios, and old tales given fresh voices. Many content creators recognize the value of fan works in creating a thriving fan community; they see that fan fiction and fan art can create a further market for their creative products. But there are plenty of creators who resent fan works across the board, and sometimes even the most understanding creator may encounter fan works that step over the line from homage to competition. So how can you tell when you're legally in the right?
In addition to looking at US statutory and case law, I consulted Professor Rebecca Tushnet for this piece. Professor Tushnet is a professor at the Georgetown University Law Center, where she teaches intellectual property, advertising, and First Amendment law. She also happens to enjoy writing fan fiction and is a board member at the Organization for Transformative Works, a nonprofit organization that promotes, supports, and provides legal advocacy for fan works. Professor Tushnet has also spoken and written a great deal on fan works, including an article for the Loyola of Los Angeles Entertainment Law Journal titled "Legal Fictions: Copyright, Fan Fiction, and a New Common Law," which informed some of the information herein and which I highly recommend reading. Huge thanks to Professor Tushnet for taking time out of her busy schedule to talk fan works....'
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