Justice Scalia’s uncredited borrowing from a party’s legal brief escapes condemnation because the social context of his copying makes him a jurist, not a plagiarist. Similarly, fan creations, even without disclaimers, usually announce their unauthorized status so clearly through context that no deception is likely.
Tushnet, R. (2007). Copyright law, fan practices, and the rights of the author. In Gray, J. A., Sandvoss, C., & Harrington, C. L. (Eds.). Fandom: Identities and communities in a mediated world. NYU Press.
Glorious snark about Supreme Court justices aside, this piece provides a useful timestamp in the evolution of fannish, scholarly, and legal thinking on issues of intellectual property, copyright, and transformative work. Tushnet traces the history and decline of the use of disclaimers on fan works, and the emergence of the idea of fan works as transformative rather than infringing. She makes a strong argument for the “fair use” view of fan works that we are now so familiar with. Whether you remember the bad old days from personal experience or wonder why some people still put disclaimers on their fic, this essay is a good introduction to the issues and a reflection of the state of thinking at a pivotal point in fannish history.