Fanfiction has operated within a legal gray area for years. Now that fan works like 50 Shades of Gray and After are seeing mainstream success, it may be time to ask the question: Where is the line between art and theft?
What right do original creators have to the characters, locations, and concepts in their stories? The answer is actually pretty complicated. In the US, while authors can't copyright a general idea, they may have rights to distinctive characters or settings. Authors often trademark unique character and place names, like "James Bond" or "Hogwarts".
Of course the actual text of the book is included in copyright, so fan works that use dialogue or quotes from the source material are definitely in violation of copyright law.
What Counts as "Fair Use"?
You may hear the term "fair use" in fanfiction, parody, commentary, or art. It's a term used to describe exceptions to the rules of copyright. If a fanfiction falls under the "fair use" exception, it is considered legal.
In order for a work to be considered fair use, the law considered three factors:
the nature of the copyrighted work;
the portion of the work used; and
the effect of the use upon the potential market for or value of the copyrighted work.
(Source: ExpertLaw.com)
So what does this mean for fanfiction writers? Well, fanfiction has a couple things on its side: It's usually written for artistic expression and not profit. Furthermore, it's not intended to replace or compete with the original work. In fact, fanfiction advocates argue that not only do fan works not deprive the author of any income but may actually increase public interest in their books.
It's harder to argue the case for fanfiction that features objectionable content, since there is a legitimate risk to the author's reputation and brand. Harry Potter author JK Rowling is generally positive toward fanfiction, but she draws the line at erotic content and other subjects that might be damaging to her child-friendly brand. Her lawyers have contacted many authors with cease and desist orders over this type of content. Rowling was concerned that the works could be too convincing and some readers might believe it is genuine canon material written by her.
Characters are Protected By Copyright
In general, an author does have a right to their characters. The law uses several tests to determine if a character is unique enough to qualify for copyright. An author must prove that the character is central to the story and not just a vehicle to help move the plot forward. The character must also be unique enough to stand out as an original creation and have consistent traits. Anything that is strongly associated with a character may also qualify for protection, like Freddy Kreuger's glove.
There are some characters that don't fall under copyright protection. Any characters who fall under known existing archetypes or don't otherwise meet the above criteria may not be copyrightable.
So, Is Fanfiction Against the Law?
The answer is a frustrating maybe. Some fanfiction is legal, but other fanfiction is not. The Organization for Transformative Works argues that most noncommercial fanfiction falls under fair use. If you're making a profit or writing potentially offensive content, you may start falling into the territory of copyright infringement.
In an interesting twist, as a fanfiction author, you are still entitled to your own copyright on any original content you created.
Not sure if your own writing is legal? There are many online guides to help you adhere to the law.
Famous Authors Are Divided on Fanfiction
Writers like Neil Gaiman, JK Rowling, and Gene Roddenberry are generally in favor of fanfiction inspired by their works.
"I think that all writing is useful for honing writing skills," Gaiman has said. "I think you get better as a writer by writing, and whether that means that you’re writing a singularly deep and moving novel about the pain or pleasure of modern existence or you’re writing Smeagol-Gollum slash you’re still putting one damn word after another and learning as a writer."
Roddenberry said that he considered fanfiction, when crafted with love, as "the highest compliment and the greatest repayment that they could give us."
Ender's Game author Orson Scott Card originally considered fanfiction an unwelcome intrusion into his territory, but he now supports it. Stephanie Meyer, the writer behind Twilight, has expressed mixed feelings about the genre: "Fan-fiction has become kind of a mixed thing for me…. I don’t know…. People pour out so much energy and talent into them… It makes me frustrated. I’m like, go write your own story. Put them out there and get them published. That’s what you should be doing. You should be working on your own book right now.”
Other writers have consistently disapproved of the genre. George R.R. Martin has famously said of fan fiction: “It’s not for me. I don’t wanna read it and I would not encourage people to write it.”
He went on to explain that he sees fanfiction as a sort of easy mode for writers that won't get them anywhere. He said: "You have to invent your own characters, you have to do your own world-building, you can’t just borrow from Gene Roddenberry or George Lucas or me or whoever."
Anne Rice, the author of Interview with a Vampire, has fought actively to keep fanfiction based on her books off the web. Around that same time, she posted a disclaimer on her website that read: "I do not allow fan fiction. The characters are copyrighted. It upsets me terribly to even think about fan fiction with my characters. I advise my readers to write your own original stories with your own characters. It is absolutely essential that you respect my wishes."
Diana Gabaldon, best known for her Outlander book series, spoke out against fanfiction saying: "I think it’s immoral, I know it’s illegal, and it makes me want to barf whenever I’ve inadvertently encountered some of it involving my characters.”
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