The Role of Copyright Law in Fanfiction
Aug 07, 2024 | Law Student Blog,
By Madison Kennedy, Washington University School of Law, Juris Doctor Candidate, 2025
Fanfiction is a type of creative fictional writing typically done on an amateur level by fans and is based on already existing media. Popular choices of media inspiration for fanfiction are novels, movies, TV shows, comic books, and video games. Fanfiction works can range in length from a few sentences to millions of words. Even some established authors like Neil Gaiman, Stephen King, and Orson Scott Card have written fanfiction. The Internet has made it incredibly easy to share fanfiction to a massive audience, and there are even several websites dedicated to sharing fanfiction, such as fanfiction.net, wattpad.com, and archiveofourown.org. Most fanfiction is posted online for free, and many people in the community detest writers who go on to commercialize their fanfiction. Despite this, there has been a growing trend in the commercialization of fanfiction. Some of the most popular commercialized fanfiction properties are Fifty Shades of Grey, After, City of Bones, and The Idea of You.
How Does Copyright Law Apply to Fanfiction?
Under the Copyright Act of 1976, literary works receive copyright protection if they are “original works of authorship fixed in any tangible medium of expression.” A literary work can become “fixed” when it is written down or typed up on a device, and this applies to both published and unpublished works. There is no requirement to register a literary work to receive copyright protection, however a U.S. work must be registered with the Copyright Office in order to bring an infringement lawsuit in federal court. The copyright owner of a literary work has the “exclusive rights to do and to authorize,” among other things, the preparation of derivative works.
Most fanfiction would fall under the definition of a “derivative work” because it is based upon existing works and then modified and transformed into a new story. As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. This opens the question of whether fanfiction in general is infringing upon a copyright owner’s exclusive right to prepare derivative works if no permission has been granted.
How Does the Fair Use Doctrine Work?
There are legal defenses under copyright law that allow copyright-protected material to be used without needing the copyright owner’s permission. One of these exceptions is the fair use doctrine, which allows for freedom of expression with copyright-protected material if the new work meets certain criteria. The fair use doctrine can be a shield for fanfiction writers against liability for copyright infringement, but it should not be seen as a guarantee due to its case-by-case nature. Courts look at four factors to evaluate whether the fair use doctrine applies: 1) the purpose and character of the use (including whether it is of a commercial or nonprofit nature), 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work.
One of the most important parts of this analysis is whether the work is transformative in nature. Transformative here means the work alters “the original with new expression, meaning, or message.” Campbell v. Acuff-Rose Music, Inc. The more transformative the work, the less weight other factors, like commercialism have in the analysis, however “if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying.” Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.
As for the fourth factor, evidence of substantial harm to the original market or the potential derivative market would weigh against a finding of fair use. The potential derivative market only includes uses that the copyright owner of the original work would generally license or develop. The four fair use factors are to be “weighed together in light of the purposes of copyright” rather than treated separately. Campbell v. Acuff-Rose Music, Inc. Fanfiction writers making non-commercial use generally have less need for legal concern, and many copyright owners have even started embracing such content as free marketing for themselves.
Most copyright infringement lawsuits only arise after a fanfiction is commercialized. In a recent case, Salinger v. Colting, the court determined that the author of a published novel that had an original plot but used characters from previously copyrighted material, The Catcher in the Rye, was unlikely to succeed in asserting a fair use defense. A fanfiction writer wanting to commercialize their work may have to jump through more hoops to avoid a successful copyright infringement lawsuit.
How Can Fanfiction Writers Protect Themselves from Liability?
Before writing your fanfiction, it can be helpful to do some research on the existing media property you are using for your fanfiction. First, you should see what the copyright owner’s views are on fanfiction. Creators of copyrighted material differ in their responses to people creating fanfiction from their works. Some are completely against it, some allow it with certain limitations, and some totally encourage it! For example, Chelsea Quinn Yarbro, author of The Saint-Germain series, is vehemently anti-fanfiction, and has even taken legal action against several fanfiction writers. Second, you should see if the existing media is in the public domain. This typically happens when the registered copyright in question has expired. If the original work is now in the public domain, it can normally be used freely without concern for copyright infringement. For example, January 1, 2024, was “Public Domain Day” for works from 1928 and before and for sound recordings from 1923 and before. Third, you can always try to ask permission from the copyright owner to create a derivative work or obtain a license to do so. This may be tricky depending on who the copyright owner is–in part because once you ask, you probably need to go along with how they respond (or don’t respond). But there are several creators of copyrighted material who encourage fanfiction of their work. For example, Andy Weir, author of The Martian, has said he considers it a great compliment when people write fanfiction of his works. Fourth, while the fair use doctrine is an affirmative defense against copyright infringement, it can be helpful to familiarize yourself with the general legal factors and how they might apply to your fanfiction.
How Can Writers Commercialize Their Fanfiction?
The most successful way fanfiction writers have ultimately commercialized their works is by “pulling-to-publish” or “filing off the serial numbers.” These are terms used to describe the process of taking down a fanfiction work online and then removing details in the work that connect it to copyrighted material in order to more safely publish it commercially as its own original work. A fanfiction writer will typically do this after having previously made a non-commercial use, but before going commercial. Some of the core details to remove during this process are character names, place names, and plots that are highly specific to the copyrighted material.
For fanfictions that are very intertwined with lore from the copyrighted material, this can be a difficult task. It is crucial that the fanfiction work can stand alone from the original copyrighted material. This process is how the fanfiction “Master of the Universe” became the best-selling novel Fifty Shades of Grey. The fanfiction explored an alternative universe with the Twilight characters, Edward and Bella, who were later renamed Christian and Ana when filing off the serial numbers, so to speak. If this process is done successfully, the risk of potential copyright infringement liability could be very low as it is no longer a fanfiction, but instead an original work separated from any copyrighted material.
Conclusion
While the role of copyright law in fanfiction can be unclear at times, it is still important to consider its implications when writing and publishing fanfiction. Nevertheless, fanfiction writers should not be discouraged from creating their stories. After all, one of the purposes of the Copyright Act was to encourage creativity and foster innovation for others to create new works. For some, fanfiction has become a tool for honing their writing skills during their artistic journey. For others, fanfiction has created a safe community for traditionally underrepresented minorities in media to create stories that better reflect their own narratives. While the legal world is still catching up to this ever-growing practice, the value of fanfiction should not be diminished.
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