This problem is especially pernicious in–though as the J.K. Rowling/Harry Potter lexicon case demonstrates, not limited to–visual media, where the legal cases involving images and questions of fair use have placed far more limited restrictions on what can be done with images as opposed to, say, text. A scholar of a modern or contemporary poet would likely not even think of requesting permission to reprint an entire poem in a scholarly work (because, of, you know, fair use), whereas in, say, comics studies, it has become standard practice for publishers of comics scholarship to demand that authors get express written permission for each and every image to be reproduced, even though a work of scholarship is an obvious example of fair use.
Before the mass media, people actively engaged with culture through storytelling and expanding well-known tales. Modern fan culture connects to this historical tradition, and has become a force that challenges social norms and accepted behavior. Whether the issue is gender, sexuality, subversiveness, or even intellectual property law, fans participate in communities that allow them to think outside of what is possible in more mainstream scenarios. “Fannish” behavior has become its own grassroots way of altering our society and culture, and a means of actively experiencing one’s own culture. In a sense, fans have changed from the faceless adoring masses, to people who are proud of their identity and are stretching the boundaries of what is considered “normal”.
The question of whether or not fan fiction could be considered fair use has never been addressed by the courts, but some legal scholars have suggested that it should be a categorical exception. While the public generally believes that a distinction exists between commercial and noncommercial use with regard to copyright, this perception has never been accepted as law.
Because “[t]he standards for invoking the fair use doctrine are so vague,” fear of litigation may chill the creation of fan fiction altogether. Fan fiction came under the scrutiny of copyright holders as early as 1977. More recently, Warner Brothers made headlines by sending cease-and-desist letters to teenagers running Harry Potter Web sites. However, no fan fiction case has ever gone to court, either because copyright holders have decided to ignore them or because of fan authors’ inabilities to contest cease-and-desist demands. In fact, most fan fiction writers would prefer to keep it that way.