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Ravana:
Those are good points, and there are a lot of people on both sides of Fair Use who would like a more well-defined and predictable test. There are a few reasons why the Fair Use statute is interpreted the way it is:
1. There is a Canon of statutory interpretation that says a court should assume the legislature chose its words with care (anyone who has been around a legislature knows this isn't always true), and that no words in a statute should be rendered superfluous. So if the words "such as" are there, for example, a court should give them meaning. Of course, there are Canons of interpretation for just about any result you like;
2. Fair Use is a doctrine that was actually created by the courts, and the legislature finally got around to codifying it. When they did, they said they didn't intend to narrow or expand the judicial doctrine, and so courts have a lot of judicial precedent to look at in addition to the wording of the statute; and
3. If you look at the legislative history surrounding the Fair Use statute, you'll see statements by legislators that the listing was not intended to be exhaustive. They specifically rejected a bright-line boundary for Fair Use.
When you get into things like parody and satire, you've got First Amendment issues as well, and, hypothetically, if you had an exhaustive statutory list that didn't include them these types of works could still be protected.
The above all assumes the fanfic is infringing some copyright to begin with. Not all characters are subject to copyright protection, and the extent to which they are protected can vary a great deal. Names aren't protected. The issue of whether a setting is protected is also fraught with uncertainty. In other words, authors tend to think there is a lot more copyright protection for these sorts of things than there is.
With respect to your analysis of the kinds of the things that are on the list, that is actually what the courts do. In fact, I think there was a Supreme Court opinion where, in dicta, the court noted that all of the things on the list shared some characteristic and provided some public good, and that things not on the list should fall into that same general category. What they basically said is that Fair Use permitted works that served "socially laudable purposes." That's open to wide-ranging interpretation, but it can be applied to fanfic.
As to the question in your footnote, cases I'm aware of that fall along these lines purport to look at all of the factors equally. They don't spend much time talking about the statutory list. They seem to assume that fanfic should be treated like any other work (in other words, as potentially Fair Use), and then go straight into the Fair Use factors - transformative or not (purpose and characters; which can be a big one); nature of copyrighted work; amount of the work used; effect on market for original work.
There isn't a lot of guidance out there, but it looks like courts generally assume fanfic and related works are perfectly capable of falling under the Fair Use statute, and so they just launch into the factors. If the work is transformative, that seems to be important and that's where you arguably start getting closer to First Amendment protections as well, because a transformative work may very well serve the purpose of providing social commentary on the original work itself.
What is really going to be interesting is if the courts ever clarify the extent to which characters, settings, and so on are even subject to copyright law. Like I said, above, that is largely an open question. I think there is little doubt that if you create a quick-witted thief named Hands, and I read your book and say "Oh, that's cool, I'm going to use a quick-witted thief named Hands," there is little or nothing in the way of copyright stopping me from doing so. On the other hand, if you flat-out copy a character like Harry Potter, who has been well-developed over a series of books and movies, you've got a copyright problem (and let's not even get into the trademark issue). Where the line is on these things is not settled at all.
Then, to derail, you've got characters who exist in some form in the public domain. Conan, for example. There are Conan stories in the public domain in the U.S. Presumably, I can write Conan stories all day long as if I'm careful to avoid trademark problems I'm OK so long as the Conan I use is in the public domain. But, if I start using characteristics or backstory surrounding Conan which didn't appear until the later REH stories (which are not in the public domain), do I have a copyright problem? No one knows.
Those are good points, and there are a lot of people on both sides of Fair Use who would like a more well-defined and predictable test. There are a few reasons why the Fair Use statute is interpreted the way it is:
1. There is a Canon of statutory interpretation that says a court should assume the legislature chose its words with care (anyone who has been around a legislature knows this isn't always true), and that no words in a statute should be rendered superfluous. So if the words "such as" are there, for example, a court should give them meaning. Of course, there are Canons of interpretation for just about any result you like;
2. Fair Use is a doctrine that was actually created by the courts, and the legislature finally got around to codifying it. When they did, they said they didn't intend to narrow or expand the judicial doctrine, and so courts have a lot of judicial precedent to look at in addition to the wording of the statute; and
3. If you look at the legislative history surrounding the Fair Use statute, you'll see statements by legislators that the listing was not intended to be exhaustive. They specifically rejected a bright-line boundary for Fair Use.
When you get into things like parody and satire, you've got First Amendment issues as well, and, hypothetically, if you had an exhaustive statutory list that didn't include them these types of works could still be protected.
The above all assumes the fanfic is infringing some copyright to begin with. Not all characters are subject to copyright protection, and the extent to which they are protected can vary a great deal. Names aren't protected. The issue of whether a setting is protected is also fraught with uncertainty. In other words, authors tend to think there is a lot more copyright protection for these sorts of things than there is.
With respect to your analysis of the kinds of the things that are on the list, that is actually what the courts do. In fact, I think there was a Supreme Court opinion where, in dicta, the court noted that all of the things on the list shared some characteristic and provided some public good, and that things not on the list should fall into that same general category. What they basically said is that Fair Use permitted works that served "socially laudable purposes." That's open to wide-ranging interpretation, but it can be applied to fanfic.
As to the question in your footnote, cases I'm aware of that fall along these lines purport to look at all of the factors equally. They don't spend much time talking about the statutory list. They seem to assume that fanfic should be treated like any other work (in other words, as potentially Fair Use), and then go straight into the Fair Use factors - transformative or not (purpose and characters; which can be a big one); nature of copyrighted work; amount of the work used; effect on market for original work.
There isn't a lot of guidance out there, but it looks like courts generally assume fanfic and related works are perfectly capable of falling under the Fair Use statute, and so they just launch into the factors. If the work is transformative, that seems to be important and that's where you arguably start getting closer to First Amendment protections as well, because a transformative work may very well serve the purpose of providing social commentary on the original work itself.
What is really going to be interesting is if the courts ever clarify the extent to which characters, settings, and so on are even subject to copyright law. Like I said, above, that is largely an open question. I think there is little doubt that if you create a quick-witted thief named Hands, and I read your book and say "Oh, that's cool, I'm going to use a quick-witted thief named Hands," there is little or nothing in the way of copyright stopping me from doing so. On the other hand, if you flat-out copy a character like Harry Potter, who has been well-developed over a series of books and movies, you've got a copyright problem (and let's not even get into the trademark issue). Where the line is on these things is not settled at all.
Then, to derail, you've got characters who exist in some form in the public domain. Conan, for example. There are Conan stories in the public domain in the U.S. Presumably, I can write Conan stories all day long as if I'm careful to avoid trademark problems I'm OK so long as the Conan I use is in the public domain. But, if I start using characteristics or backstory surrounding Conan which didn't appear until the later REH stories (which are not in the public domain), do I have a copyright problem? No one knows.
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