Fanfiction in an academic book

[johnacademic]

I am an academic writing a book on 'race' and ethnicity. The book is to be published by an academic press and I am working on a draft at the moment. One of the chapters is a fanfictional work using characters from the BBC serial 'Doctor Who'. The chapter puts the characters in a new situation but alludes to previous episodes of the series. The purpose of the chapter is to critique the way in which 'race' is portrayed in the programme.

Is this 'fair use' and if not is there any way that I could modify the chapter / ask for permissions to make it acceptable?

Many thanks

[AndyJ]

Hi John,
Characters in books are notoriously difficult to categorise in terms of copyright. The law says that infringement only occurs if a substantial part of a work is copied. You are not proposing to copy (in a facsimile way) any of the text of the Dr Who oeuvre but as you outline you would want to use certain characters' names and presumably something of their characterisation, in order to make your critique. I am assuming also that these characters would be relatively well-known/prominent ones (rather than say the first gastorpod in the episode The Twin Dilemma). On that basis I think it would be wise to assume that each major character would constitute a substantial part in each episode in which he/she/it appeared.
As you identify, that leaves you two basic ways forward: relying on the fair dealing exemption or licensing.
From what you have said it sounds as if the treatment you propose could fall into the fair dealing category set out in section 30 of the Copyright Designs and Patents Act 1988

30 Criticism, review and news reporting.
(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.

(1A) For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including—

• (a) the issue of copies to the public;
  (b) making the work available by means of an electronic retrieval system;
  (c) the rental or lending of copies of the work to the public;
  (d) the performance, exhibition, playing or showing of the work in public;
  (e) the communication to the public of the work,
  but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.

(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.

(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film or broadcast where this would be impossible for reasons of practicality or otherwise.

Note that use of the characters' names should be accompanied by a sufficient acknowledgement. If your book is to have foot or end notes, this would be a suitable way of acknowledging your source.
I used the word 'critique' earlier to describe your proposal, mainly because you used the same word. But perhaps a better description might be pastiche, parody or even satire. If you feel this might be so, then this weakens the fair dealing exemption because neither pastiche or parody are currently included under the fair dealing heading, although the Hargreaves Review of 2010 has recommended this as a future change in the law. Since you are the only person who can judge whether the chapter fairly meets the criticism/review description, it is worth just touching on the alternative, namely obtaining permission.
But first we need to briefly examine who owns the copyright which undoubtedly exists in the Dr Who concept and scripts. It is only the scripts as literary works which concern us, not the actual finished productions (which would be works of drama), or the broadcasts. According to Wikipedia and several websites dedicated to Dr Who matters, the original idea and outline script storyline came from the then head of drama at the BBC, Sydney Newman, and was further developed by CE Webber and Donald Wilson who were also full-time employees of the BBC. All this was in 1962 and so the relevant law would have been the 1956 Copyright Act. Section 4 (4) of that Act provides that the employer of the author of the work shall be entitled to copyright subsisting in the work. This is fortunate, since over the years several dozen writers were involved in writing the Dr Who scripts and it would be a monumental task to find out which writer first created each of the characters you wish to use.
So the BBC is the owner of copyright in the Dr Who scripts, as well as several other intellectual property rights associated with Dr Who. For example, they also own several registered trade marks pertaining to Dr Who, including the words: 'Dr Who, 'Doctor Who', 'The Daleks' and 'Tardis' and some graphical representations of these names.
Thus if you decide to go down the licensing route (ie seeking permission to use the names of the characters) you can be sure that the BBC is the correct body to deal with. I have no idea what reaction you might get to a request of this nature. I'm sure that if you stress the academic aspect of your work and make it clear that you are not seeking to defame the writers, I would hope that your request would be met with success; I do not think that any payment would be expected from you, since this is not a commercial venture.

[johnacademic]

Hi Andy

Many thanks for this detalied reply which is very useful. I do believe that the work is critique rather than pastiche, parody or satire. However, I also think that it might be a good idea for me to approach the BBC for some kind of permission in advance. Like you, I have no idea about how this might be received.

Do you know how would I go about approaching them? Do they have a particular department which deals with copyright issues?

Thanks again

John

[AndyJ]

Yes, there is a very large department at the BBC which deals with licensing issues. You could start here: http://www.bbc.co.uk/branding/logo_use/academic.shtml

[johnacademic]

Yes, there is a very large department at the BBC which deals with licensing issues. You could start here: http://www.bbc.co.uk/branding/logo_use/academic.shtml

Thanks for this. I e-mailed this department a while back and haven't had a reply. I am thinking that I might completely re-write the chapter as I am worried about copyright. From the above, do you think that I should?

[AndyJ]

Hi again John,
I'm surprised you haven't had a reply from the BBC. It might be worth a phone call to chase up your inquiry before you scrap the initial idea completely. I don't have a direct line number you could use, but you could try the main switchboard (020 8743 8000) and ask for the Talent and Rights Negotiation Group (TRNG). The TRNG is part of the Rights, Business Affairs and Partnerships Department which is based at the BBC TV Centre in London. (The Head of Rights and Business Affairs is James Lancaster and his number is 020 8576 0599 if all else fails!)
Once you get to speak to a human being in roughly the right area, I trust that things will move along more swiftly.
Good luck!