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17 Loy. L.A. Ent. L.J. 651 (1996-1997)
Legal Fictions: Copyright, Fan Fiction, and a New Common Law

handle is hein.journals/laent17 and id is 667 raw text is: LEGAL FICTIONS: COPYRIGHT, FAN FICTION, AND A NEW COMMON LAW Rebecca Tushnet I. INTRODUCTION A girl owns a number of Barbie dolls. She makes outfits for them and constructs elaborate scenarios in which they play starring roles. She enacts her dramas in her front yard, where passers-by can easily see. Does she violate the law? What if the girl writes down her stories starring Barbie? What happens when she lets her friends read them? What if she e-mails those stories to a Barbie mailing list? What if she posts those stories and a picture of Barbie in her new outfit on her Web page?' Copyright law has long been a concern more for corporations than for ordinary citizens. However, with new technologies that allow individuals to produce and distribute information easily, however, copyright law is becoming increasingly relevant to common activities. Much has been written about the problems created by the easy reproduction of copyrighted documents and by the poor fit between law and technology that makes every person who browses the World Wide Web (the Web) a likely lawbreaker.2 This Article goes beyond the debate over pure copying to * J.D. expected, 1998, Yale Law School. The author would like to thank Steve Burt, Zach Schrag, and Susannah Pollvogt for editing, and Mark Tushnet and Elizabeth Alexander for everything. 1. See, e.g., Barbie (visited Oct. 22, 1996) <http://think.ucdavis.edu/winter_96/barbie.html> (containing Barbie image with words superimposed); Tracy Wascom, Hacker Barbie (visited Oct. 22, 1996) <http'/www.awwwsome.com/joy/archives/31MAR96/hackerbarbie.html> (Barbie story); see also HERBERT KOHL, SHOULD WE BURN BABAR? 14 (1995) (describing potentially shocking Barbie games played by children). Note that all Internet sources are on file with the author or the Loyola of Los Angeles Entertainment Law Journal. 2. The legal problem is that viewing a document on the World Wide Web requires making a copy of that document on the client computer. Even if the copy is not saved to long-term memory, it is permanent enough to constitute a copyright violation. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993); Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832, 840 (Fed. Cir. 1992); INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 64 (1995); THOMAS J. SNEDINGHOFF, ONLINE LAW 148 (1996). At the same time, browsing the Web is practically more like visiting a bookstore than like copying books. Many authors have addressed the problems this new technology creates for the

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