Fandom and Fair Use: Spotlight on Recent Fair Use Discussions

Copyright is the legal protection granting the owners of creative works (such as books, music, artwork, and so on) the authority to control their use, distribution, and sale. Copyright is a limited right, with key exceptions such as fair use. Fair use allows people to use copyrighted works for transformative purposes, such as commenting, reporting, and criticizing. Noncommercial uses are particularly favored as fair uses.

For Fair Use Week 2025, we want to spotlight recent discussions about Fair Use and highlight its importance for transformative works, because fair use makes fanworks legal under copyright law.

OTW’s Legal team is currently keeping an eye on site-blocking legislation, which has the potential to be overly broad and has been reintroduced in the new US Congress. We're also watching some interesting cases, like one against Jimmy Kimmel for his videos mocking George Santos' Cameos. Legal’s Rebecca Tushnet submitted an amicus brief in that case, defending Kimmel’s right to make fun of Santos. Another recent legal dispute saw tattoo artist Kat Von D sued by a photographer whose photo she used as a reference for a tattoo—she won a jury verdict that some of her uses of the photo were fair uses, and the tattoo itself was not an infringement. The Authors Alliance, which supports the interests of authors in strong fair use rights and strong protections against publishers’ attempts to make authors surrender their rights, submitted an amicus brief in support of fair use.

The US Copyright Office also recently released a section of a report on AI and copyright focusing on when AI-generated works are copyrightable. The Office concluded that human involvement in creation is required for copyrightability and that merely providing a prompt—even a detailed prompt refined over multiple attempts—does not represent enough human involvement to satisfy that requirement. As a result, the Copyright Office will accept works with AI-generated components, like the credits in a live-action film, but purely AI-generated works will not be considered copyrightable human creations. The Office is also expected to issue a report on AI training and fair use in the coming months. However, the Copyright Office does not decide most issues of fair use and its recommendations will not be binding in courts.

Another set of fair use developments comes from the US Copyright Claims Board, a small-claims proceeding set up by the Copyright Office. It was started in 2020 to handle some copyright claims more cheaply than litigation in federal court. Although there are some serious problems with the setup, the Board is not a rubber stamp for copyright owners – they do not always side with them. One example comes from a recent decision which found that a YouTube feud, where one YouTuber brought a claim against another for using clips of her work, involved fair use and not infringement.

It’s absolutely critical that fair use remains a robust exception to copyright, as it’s the foundation of transformative works’ existence—including, but not limited to, all types of fanworks.

As the OTW, we are committed to defending the right of transformative works to exist. Our Legal team works hard to stay on top of recent developments involving copyright law. And we want you to know your rights: exercising fair use rights and reminding people that copyright is not absolute keeps fair use healthy. In light of this, we wish you a happy Fair Use Week and hope we could help you catch up with some of the latest developments regarding copyright!

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Is there a new law that might affect fans or fannish activities in your country? Send us a message about legislation you think we should know about. (Submitting a concern doesn’t guarantee that it will be included in a future Spotlight on Legal Issues post.)

The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan-run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.