In her latest New York Bookwoman “Legally Speaking” column, Dina Di Maio examines the hotly contested topic of fan fiction from a legal point of view.
Is Fan Fiction Legal?
There is no easy answer to this question, as authors and lawyers are divided as to how it should be classified, and there hasn’t been a case to shed light on the issue. It generally speaks to more theoretical issues of copyright law, such as why copyright exists in the first place. An economic/utilitarian approach to copyright argues that creators have the right, for a time limited by law, to make economic decisions about their work. Even a work of fan fiction, or fanfic as it is known, that is created for non-commercial reasons can have an impact on the economic rights of the originating author.
So you may think that your 1500-word fanfic posted on a fanfic site is harmless because you’re not profiting from it. That may not be entirely true. In some instances, just your use of titles, characters or elements of the work can violate trademark rights or dilute a trademark owner’s mark. Titles can have trademark protection, and characters can have trademark protection. Trademark exists so that consumers can identify the source of a product or service. If a mark is used too often, it can become, in legalspeak, “diluted,” which means it loses its value and may no longer be protectable. While fanfic may concern trademark rights, the more obvious area of concern is copyrights.
Under United States copyright law, copyright owners have the exclusive right to create derivative works based on their copyrighted works. A derivative work is a work based on a work that already exists. Let’s face it—the economic value of a work is in its copyright. The copyright owner can decide to create a derivative work or to license those rights. Anyone who exploits those rights without permission from the copyright owner infringes.
What is fanfic? Is it a derivative work? Many definitions are floating around, but fanfic seems to be fiction created by fans of an originator’s work out of admiration for the characters and setting of the work, not for commercial purposes. Fan fiction has its beginnings in the science fiction genre, which is understandable, with the fantastical worlds these books create. In fan fiction, the ‘canon’ includes the rules created in the imaginary world of the originating work. Because of the popularity of fan fiction (it has 178 million hits on Google), authors and publishers have been forced to deal with it. Some writers, like Anne McCaffrey, permit fan fiction but have written guidelines on how it should be done (//pernhome.com/aim/anne-mccaffrey/fans/fan-fiction-rules/). J.K. Rowling has a positive attitude toward fan fiction, as long as it is not sexually explicit. Anne Rice is adamantly against it (//annerice.com/ReaderInteraction-MessagesToFans.html). Some writers won’t read fan fiction related to their works because they’re afraid fanfic writers will sue them for stealing ideas from the fanfic.
Any discussion of fanfic brings up the topic of fair use. Fair use is a defense that can be used in copyright litigation. If something is a commentary on the work, like a book review, or a parody (using a prior work to comment on the prior work) or satire (doesn’t comment on the prior work but makes fun of something else), or what is known as a transformative work, it constitutes fair use. But keep in mind, the court makes that determination, not you. I’ve heard the argument, “I only used two lines of a poem in my novel” but two lines of a poem can be 90% of a work, depending on how long it is. A court will look at a number of factors when determining if a use is fair use, such as if it was for profit, how much of the work is used, and the effect that the use has on the value of the copyrighted work. An example of a work that the court found to be transformative was The Wind Done Gone by Alice Randall, a parody of Margaret Mitchell’s Gone With the Wind, because it created a new work by making a social comment on a previous work. Also, The Wind Done Gone was a book published for profit. Fanfic, by definition, is not.
The Organization for Transformative Works (OTW) argues that fanfic works are transformative works, protected under fair use. It defines fanfic as “the acknowledged or obvious borrowing of story elements to tell a new story in the fan fiction writer’s words.” It doesn’t ‘oppose’ copyright owner’s having the exclusive right to create derivative works.
The OTW definition of fanfic makes the fanfic a transformative use. There’s a ‘new’ story using ‘elements’ from the prior work. If a court finds the work to be derivative rather than transformative, the fanfic would constitute an infringing work. An interesting follow-up question to this discussion is if fanfic is copyrightable. In order to be copyrightable, a work must be original. The popular 50 Shades of Grey by E.L. James started as Twilight fanfic. Having not read 50 Shades of Grey, I can’t speak to any similarities to Twilight or the lack thereof, but it sounds as if 50 Shades of Grey is an original work. If Stephenie Meyer brought an infringement suit against E.L. James, it would be up to a court to decide how similar the books are and if the work was a derivative work or a transformative work, and therefore, a work protected under fair use.
I want to mention that changing the nature of your fanfic could get you into trouble. It’s one thing to post fanfic online for free and another to start charging for access to it or selling ads or printing and selling the fanfic. In ‘Warner Bros. Entertainment and J.K. Rowling v. RDR Books,’ J.K. Rowling sued a fan site operator who published a print version of his online Harry Potter encyclopedia for infringement, and won.
Dina M. Di Maio is a licensed attorney in New York and Tennessee. With an MFA in creative writing from NYU, Dina has worked as a freelance writer and editor for publications and publishers like Glamour, Family Circle and Scholastic, Inc. She also worked in the legal department of the Authors Guild and is currently a member of the Authors Guild. Check out her food blog, HuntingfortheVeryBest.wordpress.com.
