PUBLISHED SEPTEMBER 2017

by Matt Knight, Author, THE GENE POOL -

Watch Joshua Robertson's video recap of this article!

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Popular books, movies, or cable shows often inspire devoted fans to write their own fictional stories about beloved characters, settings, or plots. Robin Hood, Sherlock Holmes, Captain Kirk and Spock, Harry Potter, Edward and Bella—all have moved fans to channel their inner creativity and write works of fiction with new adventures, reimagined worlds, and creative relationship pairings for their favorite characters. Although the term fan fiction first appeared in the late 1930s in reference to amateurish works of science fiction, the practice has been used as early as the 18th century, mostly with unauthorized sequels to books like Don Quixote and Pamela (one of which was a parody with raunchy plots called Shamela). Thirty years later in the 1960s, fan fiction gained momentum with Spockanalia, a fan-written magazine (or fanzine). And another 30 years after that, with the advent of the internet in the 1990s, fan fiction became so popular it spawned communities and websites like FanFiction.net or Wattpad where fans could share their stories. Even Amazon has joined the fan fiction fray with Kindle Worlds, a service for publishing fan-written fictional stories based on licensed properties like G.I. Joe, Veronica Mars, Kurt Vonnegut, Gossip Girl, Pretty Little Liars, and The Vampire Diaries. If you take a quick gander at a few fan fiction stories, you will see almost anything goes. Characters are placed in different time periods. Plots are reimagined with new realities. Dead characters are brought back to life. Other characters are knocked off. Relationships are reinterpreted into unlikely love affairs and same-sex pairings, like one of the most popular examples of fan fiction, the Fifty Shades of Grey trilogy, written by E.L. James. James was so absorbed with Stephenie Meyer’s Twilight books that she wrote fan fiction based on the two main characters, but in erotic role-playing scenarios, originally called Master of the Universe. Why then, if fan fiction is a popular means for fans to creatively express their admiration for an author’s work and connect with the characters and stories they love, is it legally problematic? The answer is copyright law. In the US, copyright laws grant authors and creators of original work the exclusive right to control how the work is used, including the right to copy, produce, distribute, sell, and adapt their work. For the fan fiction writer, that last right is the chief concern. If the author has the exclusive right to create adaptations and derivative works based on their original content, then a fan fiction story based on elements from that same original content most likely is a derivative work, too, and infringes the author’s exclusive right. Still, fan fiction thrives even though technically it is copyright infringement because the author chooses to allow it. Creators of the original content have always been divided on the how to handle fan fiction. Responses have ranged from indifference, appreciation, and encouragement, to flat out opposition. Authors like Neil Gaiman have no objection to fan fiction as long as people are not commercially exploiting his characters. Stephenie Meyer approves of fan fiction and has a list of fan fiction sites on her website. Other authors embrace fan fiction, but with limitations. J.K. Rowling and George Lucas both will not tolerate pornographic fan fiction about their characters. Other authors like Orson Scott Card and Anne Rice, who once opposed fan fiction entirely, have softened that stance over time to tolerate it. If you are an author who has dedicated fans writing their own fictional stories about your characters, you basically have three options:

1. Encourage your fans to write fan fiction for increased exposure of the underlying work. This could boost sales, build momentum behind the creative work, and allow the author to connect with fans.
2. Tolerate it but make your exceptions known, like no fan fiction that portrays characters in lewd or offensive stories. If you find such examples, ask the fan fiction writer to honor your request and remove the fan fiction story from the website where you found it.
3. Exercise your right to squelch the fan fiction and maintain full control of your creative work. But beware—suing fans may alienate them, a high price to pay when fan fiction rarely reduces the value or commercial interest in the original content.

If you are a writer of fan fiction, here are a few guidelines to help you navigate the copyright thicket of derivative works when you create fictional stories about your favorite characters.

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1. Do Your Research

Before you embark on your creative fan fiction endeavor, determine what level of tolerance or encouragement the author of the underlying creative work has for fan fiction. Respect the author’s wishes and limitations on fan fiction, and if an author requests you remove your fan fiction from a website, comply. After all, the author does own the copyright to the underlying work. Next, determine if the underlying content for your fan fiction is in the public domain. For example, Robin Hood, Tarzan, and Dracula are all characters in the public domain and can be used freely by writers to create fan fiction work without the fear of violating copyright laws. Generally, a story enters the public domain when the author gives up the rights to the work, or the copyright expires. In the US, an author retains the copyrights to their work for their life plus 70 years following their death. If the work is published anonymously, the copyright will last for 95 years from publication or 120 years from creation (whichever is shorter). Sounds simple, right? Well, do not hit the ground running yet. The process can be somewhat complex. Often a quick Google search of the character will tell you if it is in the public domain. But a writer of fan fiction must be cognizant of what character aspects are in the public domain and what aspects have been added by a later work. For example, if you write about vampires that shimmer like diamonds, you may be in trouble with a Twilight copyright. Likewise, the monster from Mary Shelley’s novel Frankenstein (which is in the public domain) is much different from the monster created by Universal, which is not in the public domain. Mary Shelley did not write about a green-skinned, flat-toped, bolts-in-the-neck monster.

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2. Seek Permission

If possible, ask for permission to create a derivative work. Fan fiction comes from dedicated fans. Some authors like to further such work and might grant a license for your fan fiction.

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3. Ask Yourself: Does The Fair Use Exception Apply?

One common misconception about fan fiction I often see zipping around the internet is that fan fiction is legal because it qualifies as fair use. Unfortunately, that is not the case. Fair use is an affirmative defense asserted when sued for copyright infringement. But again, a fan fiction writer must be sued in order to assert the defense, which most writers would find too much of a hassle just to find out if your get-out-of-jail-free card works. What good is fair use, right? While the copyright laws grant authors a monopoly over the use of their work, there are situations where that right is significantly limited if it falls within the fair use exception. Its purpose is to further creativity. To determine if an infringing work falls within the fair use exception, courts consider four factors:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used
4. The effect on the market of the copyrighted work

While all factors are not equally important in every case, all should be considered when making a determination if fair use applies to the infringing work in question. But when it comes to fan fiction, writers should focus on factors one and four. Normally, the first factor involves use of the copyright protected material for criticism, comment, news reporting, and teaching. But it also covers use of the copyright-protected material for parody, satire, and derivative work that is transformative (i.e., the original is transformed by adding new things to the work). The more transformative a work, the less important the other factors are, and the stronger the fair use claim becomes. If your fan fiction is a parody or satire, and it has transformed the work into something new, then you might fall within the fair use exception. Typically, fan fiction is merely an offshoot of the original with a new plot or character relationship. If so, use as little of the original work as possible. Do not write about characters in a plot that closely follows the original work. Instead, strip those copyright elements as much as possible and add new, transformative elements for fair use to apply. Factor four is also helpful for fan fiction writers because the effect on the market value of the original content is minimal when fan fiction is offered for free. That benefit disappears if you are selling your work (see point five below).

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4. Use Disclaimers

A disclaimer will help avoid the appearance the fan fiction author is claiming ownership of the underlying work (or appear to be claiming ownership). Insert a disclaimer acknowledging you do not own the underlying creative work and you are not making any profit from the publication of your fan fiction. In addition, it is always prudent to give the author of the underlying work credit.

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5. Be Wary of Publishing Commercially

[caption id="attachment_25225" align="alignright" width="228"] Fifty Shades of Grey author E.L. James