Copyright Law and Fanfiction…Not Always OTP: Legal Issues with Fanfiction

Do the words “fic” or  “fannish” mean anything to you?  If they do there are pretty good chances you are familiar with fanfiction.  Maybe you are an avid reader of FanFiction.Net and Archive of Our Own (the largest fanfiction websites on the internet), or perhaps you are a fanfiction creator yourself. Fanfiction (also known as fanfic) is a piece of fiction based on another original work of fiction that is written by a fan instead of by the original creator.

Ironically, Harry Potter and Star Wars, two of the most widely “ficced” properties out there, both released movies during the last six weeks of 2016, with storylines that are not apart of the main franchise of stories, but still occur in their respective story’s canon universe.  Essentially spinoff stories.  It is important to note that these movies (and stories) are not fanfiction, because they are from the intellectual property holders themselves. But they are in the same vein as fanfiction, because they are canon stories in the same universe as the underlying work just not apart of the main storyline.

Fantastic Beasts and Harry Potter

Fantastic Beasts and Harry Potter

 

“Fantastic Beasts and Where to Find Them” was released on November 18. This tale is part of Potterverse, but isn’t technically a Harry Potter story.  “Star Wars Rogue One” will be releasing on December 16.  This movie is not part of the three trilogies comprising the series canon, but it takes place in the Star Wars universe in between the first and second trilogies. Both series involve different characters and different stories than the original canon.  

Rogue One Star Wars

Maybe you love writing fanfiction for Potterverse or Star Wars, or want to get started.  Or maybe you write other types of fanfiction.  Regardless, if you are a fanfiction writer, it is extremely important you know the legal issues involved with fanfiction, and the laws that can affect the creators of fan works.  This article will explain those legal issues and outline the fanfic author’s rights and help you avoid getting sued in the process.

Copyright Law

Copyright laws are different in every country, but today we will focus solely on U.S. rights.   

To have copyright protection in the U.S. a work must be an “original [work] of authorship fixed in any tangible medium of expression…from which [it] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  And under U.S. copyright law, copyright owners have the exclusive right “to prepare derivative works based upon [their] copyrighted works.”  (A derivative work is any work based on or derived from one or more already existing works, such as a translation, motion picture, abridgement, or sequel.)

Of course, not every element of a copyrighted work is protected. Fictional characters within a work are presumed to be ideas (which are not protected by copyright) unless they are sufficiently unique and distinctive to constitute elements of expression. Good examples of these types of characters are Harry Potter or any of the Star Wars characters. The standard for character protection was established in a very old and famous case known as Nichols v. Universal Pictures Corp, 45 F.2d 119 (2d Cir. 1930). Judge Learned Hand stated that “…the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”

This means that under copyright law, a copyright holder can prevent a fanfiction writer from legally using the copyright holder’s settings or characters for their fanfiction.  However, some exceptions exist of when fanfiction writers may be in the clear to use copyrighted parts for their derivative works, because there are exceptions granted through fair use and general permission from the author.   Additionally, it is also imperative that fanfiction writers be familiar with copyright and public domain as well.

Fair Use

In order for a copyright holder to prove infringement, the owner must show the accused copied protected elements of the original work, and that the work does not constitute fair use.  Although by definition, all fanfiction is technically an infringement of the copyright owner’s exclusive right to make derivative works, if the fanfiction constitutes fair use of the underlying copyrighted work, it would not be actionable.  

Fair use is a defense against infringement.  And basically what would happen is a copyright owner would sue you — the fanfiction creator — for copyright infringement.  And then you —  the fanfiction creator — would have to demonstrate in court that your work qualifies for the fair use defense. This is a very fact-intensive balancing act, and we can’t say one way or the other how a court may rule.

U.S. courts consider these following factors to determine if a use qualifies for the fair use defense:

  1. “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (Are you making money off of the work?)
  2. The nature of the copyrighted work;
  3. The amount and substantiality  the portion used in relation to the copyrighted work as a whole; and (Did you transform the original work?)
  4. The effect of the use upon the potential market for or value of the copyrighted work.” (Could your work substitute the original copyright owner’s work?)

Thus, fanfiction works are more likely to constitute fair use if they are “transformative” of the original work, there is no revenue being generated from selling the work, the author uses very little of the original work in their fanfic, and/or the work does not undermine or weaken the potential market or value of the original work.  

Wait a second — no revenue being generated from selling the work? What about the 2011 blockbuster novel Fifty Shades of Grey, which famously began as Twilight fanfiction? After reading the Twilight saga, author E.L. James began posting her erotic reimagining on a popular fanfic site. It became so popular that eventually she recast Bella and Edward as “Anastasia and Christian” so that she could commercialize on her writings. It’s important to note that she “filed off the serial numbers” by changing the names and plot sufficiently before she did, although the underlying chemistry between the characters was inspired by those in the teen vampire hit.

Takeaway: You can ask yourself two questions to determine if your work is transformative or derivative:  (1) Am I telling a new story?, or (2) Am I just retelling someone else’s story?  If you’re telling a new story you may be legally protected, but if you are just retelling the copyright holder’s story and it adversely affects the original copyrighted work, then you will most likely not be legally protected.

Permission from Author

Fanfiction exists because dedicated fans exist — which is great!  In fact many copyright holders tolerate fanfiction and some may even encourage it.  But for all the copyright holders that support fan creation of derivative works (notably J.K. Rowling, Neil Gaiman, and Meg Cabot, who actually used to write Star Wars fanfic when she was a tween) there are plenty others who do not look kindly on it (Diana Gabaldon, Anne Rice, Orson Scott Card, and George R.R. Martin).  Then there are others who don’t have a problem with it, but don’t actively encourage it either (such as Stephenie Meyer, who feels that if you’re going to spend the time to write, you should be creating your own characters and world).

Most fanfiction sites are not for commercial use, meaning that the fanfic writer tells their stories for the sheer joy and love of the universe in which they’re writing, since the right to sell is one of the exclusive rights of the copyright holder. But what if you want to write in that world, but still make money?

Enter Amazon’s Kindle Worlds. Certain popular media franchises (notably Veronica Mars, Pretty Little Liars, Vampire Diaries, and G.I. Joe) have entered into licensing arrangements whereby they authorize writers (amateur or professional alike) to use their characters and settings in a way that would otherwise violate copyright. Kindle Worlds writers are allowed to commercialize their fanfiction in a royalty share agreement with the original copyright holder.  So in a way it’s “legal fanfiction,” but one might argue that it’s actually more of media tie-in with an intentionally low bar to entry. If you do decide to venture into one of these Worlds, then keep in mind that the terms of the agreement give the original copyright holder the right to use any new characters or plots you created in their own future works without any compensation.

Takeaway: Therefore it is best to keep that in mind and do your research about the author and their viewpoint on fanfiction before you begin to write.  So that way you can prevent a legal issue from arising in the future.

Public Domain

Works in the public domain can freely be used because they are not protected by U.S. copyright law.

In many countries (including the U.S.), authors who publish in their own names retain their copyright rights over their work for their whole life, plus the 70 years after they die.  If the work is a work for hire or published anonymously or pseudonymously, then it is the shorter of 95 years from publication or 120 years from creation.  Works can enter the public domain if the author decides to give up their rights to the work.  Some popular characters in the public domain include Hercules, Tarzan, Dracula, Robin Hood, or Lizzie and Mr. Darcy.

Although the term of protection for much of the world is “Life + 70”, some countries have a shorter term of protection (Life + 50 is common) or even a longer term (notably, Mexico protects works for life of the author + 100 years). So although this article focuses on U.S. law, it is crucial to understand that when determining public domain status, the analysis is not based on where you are located, but rather where the work was originally written and published. Therefore, works that may have otherwise fallen into public domain if they’d been created in the U.S. could still be protected in a country that has a longer term of protection.

Takeaway: The best way to determine if an existing character is in the public domain is to do your research.

What if I use a disclaimer?

Disclaimers do not insulate you from infringement.   It is important to know that putting a disclaimer at the beginning of your work does not affect the legality of your work. This, if your work is an outright copyright infringement, sticking a “disclaimer” in front of your work does not protect you from a copyright infringement claim.

Many fanfiction writers will often use some variation of the following disclaimers:

Ex1: “There is no profit made on any of these stories…They are simply parody and no harm is intended.”
Ex 2: “COPYRIGHT HOLDER owns everything!  I am just a fic writer who writes.”
Ex 3: “I do not own any part of the BLANK UNIVERSE and no money is being made from this story”
Ex 4: “All COPYRIGHT HOLDER, not mine”

Takeaway: Including a disclaimer showing that you have no intention to commit copyright infringement is not the wrong thing to do. Just know that it offers absolutely no protection from liability for copyright infringement.  

And may the force be with you as you create your magic.

CONCLUSION

If you create fanfiction  and have questions about copyright law, trademark law, or any of your legal rights it is always best to contact an intellectual property attorney.  It can be very easy for a fanfiction writer to easily commit infringement and face legal action, but being knowledgeable about copyright law and your legal rights is undoubtedly the first step to protecting yourself and making it so your work actually will be OTP.


Heather A. Sapp is the Senior Trademark Attorney at LegalForce RAPC. Prior to joining LegalForce, Heather was a Trademark Examining Attorney at the U.S. Patent & Trademark Office for more than a decade. She is also a popular speaker on the writers’ conference circuit, speaking on intellectual property issues for authors under her Young Adult fiction pen name, Amanda Brice. Although she writes mysteries of her own creation these days, she is proud to say she got her start writing Nancy Drew fanfic as a preteen.


Chelsea Wold is a law clerk for LegalForce RAPC. She received her Juris Doctor degree from Sandra Day O’Connor College of Law, Arizona State University in May 2016. On the personal side, Chelsea has her own blog that she started as a journalism major in college.


Disclaimer – No Legal Advice:  The information and content available on this site is offered only for informational purposes and is not intended to be legal advice.  Posts are for educational purposes only as to provide general understanding and general information of the law, not provide specific advice.  Blog posts should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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HEATHER A. SAPP, is the Senior Trademark Attorney at LegalForce RAPC. Prior to joining LegalForce, Heather was a Trademark Examining Attorney at the U.S. Patent & Trademark Office for more than a decade. Prior to joining the USPTO, she was a Legal Fellow for the House of Representatives IP Subcommittee. She is also a popular speaker on the writers’ conference circuit, speaking on intellectual property issues for authors under her Young Adult fiction pen name, Amanda Brice.