Calling all fanfiction writers! If you love to write your own stories based on established source material, here is how to avoid copyright infringement.
Welcome, one and all! Today, we’re going to be talking about fanfiction.
In case you aren’t aware, fanfiction is a fictional work written by a fan, often based on the plot, characters, or setting from an established book, film, television show, comic book, video game, or play. Typically, fanfiction writers will use existing characters to put a spin on the source material. Sometimes fanfiction writers will write stories set in the world the author created, and sometimes they’ll take the characters and change up the setting. This is called an alternate universe story (AU for short), one of the many adjustments you can add to fanfiction.
Some stories are less than a hundred words, while others can be as long as novels. There are numerous websites where you can publish and read fanfiction, including Fanfiction.net, ArchiveOfOurOwn.org, and LiveJournal.com, to name just a few.
The possibilities for fanfiction are endless, which is perhaps why I love it so much. Altering the canon of existing material can be really fun, and it’s a great way to practice creative writing. I’ve been reading and writing fanfiction since I was a teenager and it remains one of my favorite activities. However, there are steps that fanfiction authors must take in order to avoid getting into any legal trouble with the owners of the source work, who run the gamut from embracing it (J.K. Rowling) to turning a blind eye so long as you don’t bring it up to them (George R.R. Martin) to actively discouraging it (Anne Rice).
As reported by SyFy Wire, most of the time, fanfiction fits neatly into the category of non-infringing fair use. According to Stanford University Libraries, fair use is defined as any limited imitation of copyrighted material that comments on, criticizes, parodies, or transforms an established work. Works such as these can be made without overt consent from the copyright holder. Fanfiction usually qualifies as fair use under these terms, meaning that it is not considered to be copyright infringement.
Another important factor in fair use is whether the new work cuts in on the potential market for the original work. In other words, might people use the fanfiction as a substitute for the original? In the great majority of cases, the answer is no, both because the whole point of fanfiction is to change things about the original work and because, by and large, fanficiton isn’t sold for money, so the market for the underlying work is unaffected. If anything, it’s free advertising.
Betsy Rosenblatt, who teaches intellectual property law at U.C. Davis School of Law, has some advice for fanfiction writers. “The legality of fanfiction isn’t very controversial,” she said. “As a matter of copyright and trademark law, the sort of noncommercial, transformative works that fans make tend to fit quite well into the definitions of non-infringing fair use.”
"Fans own copyright in their own original contributions to a fanwork — they don’t own anything about the underlying work it’s based on, but they do own what they have made. The Digital Millennium Copyright Act (DMCA) allows copyright owners, including fan-authors, to request that something be taken down if it infringes copyright."
A lot of authors and companies have wised up to the idea that people are going to write fanfiction whether they like it or not and started to provide rules on how to go about creating fan works for their products. Here is what intellectual property attorney Heidi Tandy had to say on the subject:
"Hasbro and Star Trek have guidelines on the internet that set forth what fans can do without worrying about being sued. While those guidelines are often more restrictive than what would be permitted under U.S. Fair Use laws, they’re a good anxiety-reducer for fans who want to be able to crowdfund a project."
For any fellow fanfiction authors out there, I can offer a helpful tip. A lot of writers add a disclaimer at the top of their work that says they do not own the characters they are using. I see this used frequently and I have always done it, too. It’s just a little note to clarify that you are using material from a pre-existing work. I haven’t gotten any cease and desist letters thus far!
If you have any more questions about the legality of fan work and copyright infringement, then check out the Organization for Transformative Works. It’s an organization that works to preserve fan culture and they have a ton of information about this topic on their website.
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