Is FanFiction Illegal? How Fandom Created A New Era of Copyright Law

Did you know fanfiction has actually been around for centuries? Although it’s an old form of writing, it’s also a very new legal area. Let’s explore the ins and outs of fanfiction together!

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Two cosplayers taking a picture at a fan convention.

Many people think of fanfiction as something that comes with living in the digital age. And it’s true, fanfiction has grown and evolved in digital spaces over time—Doctor Who fics on LiveJournal, Glee stories on Fanfiction.net, and One Direction self-inserts on Wattpad. The creation of the fan activist nonprofit organization, Organization for Transformative Works, has only made fanfiction even more accessible with the launch of their open-source fanfiction repository, Archive of Our Own (AO3).

While the Internet has certainly increased the creation and access to fanfiction, the concept and execution of it have actually been around for centuries, albeit not called “fan fiction.” However, the form’s history has not saved it from causing possible legal repercussions for its authors. Since the 20th century and the passing of the Copyright Law of 1976, fanfiction has become a tricky gray legal area that is constantly posing new questions of ownership, profit, and plagiarism. 

How did a once-common practice become a legal minefield? To find that out, we must journey through fanfiction’s surprisingly long history and take a brief course in American copyright law.

What is Fanfiction?

Before we get too deep into the details of fanfiction and copyright, we need to lay down some terms.

First, and perhaps the most important: Fanfiction. Sometimes spelled “fan fiction” or simply called “fan fic,” it’s a type of creative writing based on an existing work of fiction, brand, or group. It is the unauthorized use of copyrighted characters, settings, and other intellectual properties as a basis for the story.

Fanfiction is a type of fan labor, which is the creative activities of fans to show their appreciation and love for a type of media. Common types of fan labor are cosplay, art, video edits, and, of course, fanfiction.

A group of cosplayers in Yokohama, Japan wearing costumes of characters from the anime "One Piece."
IMAGE VIA WIKIMEDIA COMMONS

Fanfiction and fan labor are common activities done by fans in fandoms. Fandoms are the subculture of a piece of media that is their common interest and don’t have to be purely fictional. While fandom and fan activity started with enthusiastic book lovers, the world has grown to encompass fans of real people and brands, which is why there are many fanfictions written about boy band members and celebrities. 

Much like published writing, fanfiction comes in all forms and sizes. Lengths can range anywhere from a couple of sentences to novel-length stories and come in various genres. Thanks to increased accessibility via the Internet, fanfiction has developed its own genres, tropes, and lingo subculture. Here are some terms that you might have encountered:

  • Alternative Universe (AU) – a type of divergence from the canon of the fandom media, usually interacting with the characters and settings in a worldbuilding separate from the original media. There are popular AU tags, like Soulmate AU, Reincarnation AU, or Superpowers AU.
  • Songfic – a fic that is based on a released song or includes the lyrics of a released song.
  • Dead Dove: Do Not Eat – although the term originated from the show Arrested Development, fic writers have adopted it as a warning for a fic that includes especially dark and/or triggering content and to proceed with caution.
  • OTP – One true pairing, often used for relationships.
  • Headcanon – an idea about the media that a fan creates based on facts presented in the show. Headcanons usually form around throwaway details about characters and can be argued to exist within the media without the media explicitly stating it.
  • Fanon – similar to Headcanon, except it’s a widely held belief by many or all the fans in the media’s fandom that they believe to be true.
  • Smut: sexually explicit fanfiction. This term may be recognizable to romance readers who like their books with three or more spicy peppers.

Given the sites and amounts of posted fanfiction there are online, fanfiction has become a huge sub-community within the larger writing community, to the point it’s harder to find a show, movie, or book that doesn’t have fanfiction than one that does. But even with its popularity amongst media consumers, fanfiction is still an unauthorized activity, which means no fanfiction should be taken as part of the official media or used for profit, lest the fic writer risks getting taken to court for copyright infringement.

Several authors are against fanfiction—two popular examples being Anne Rice, author of the Interview with The Vampire series, and George R.R. Martin, creator of the Game of Thrones universe. However, several other authors encourage their readers to engage in fanfiction. In fact, there are many authors currently in the literary scene who started writing fanfiction themselves. Neil Gaiman is one author who not only encourages fanfiction for his works but also wrote some of his own from time to time, as said by the man himself.

Cover for "A Study in Emerald", a short story by Neil Gaiman.
IMAGE VIA BOOKSHOP

When Did Fanfiction Start?

Although fanfiction as it exists now is fairly new (made within the last hundred years), authors have been borrowing or taking inspiration from other authors for centuries. Before copyright became a mainstream consideration, it was common practice for authors to copy characters and plots from already published material, like Chronicles by Raphael Holinshed, which Shakespeare used for material in his plays Macbeth and King Lear.

Fast forward three centuries later from Shakespeare, and we see a lot more overt examples of authors taking inspiration, verging closer to fanfiction as we know it today. Jane Austen fanfiction was especially popular in the 19th and 20th centuries, with many authors writing unauthorized sequels or spin-offs to Austen’s novels. A popular example of this Austenian phenomenon is Old Friends and New Fancies by Sybil G. Brinton.

Sherlock Holmes, created by Arthur Conan Doyle, was and continues to be a big inspiration for fan works. J.M. Barrie, author of Peter Pan, even wrote and published his own Sherlock Holmes adventure, a short story called “The Adventure of Two Collaborators.

Cover for "The Adventure of Two Collaborators", a short story by J.M. Barrie.
IMAGE VIA GOODREADS

The term “fan fiction” wouldn’t be considered and used until 1938, but there were other literary terms that existed to explain this type of writing, pastiche and parody being the main ones.

A pastiche is a work of art, literature, or music that imitates the character or style of one or many works by a particular author. One example is the 1917 book New Adventures of Alice by John Rae, which is inspired by Alice in Wonderland by Lewis Carroll.

A parody is a creative designed to imitate or make a comment on an existing work through satire or irony. You may remember The Hunger Pains by The Harvard Lampoon, a Hunger Games parody that was a pretty big deal when it came out in 2012.

It wasn’t until the late 20th century that fanfiction as it exists today became a recognizable fan activity. The Star Trek fandom is largely responsible for defining and normalizing fandom and fandom-related activities with the publication of Spockanalia, the first Sterk Trek fan zine, which contained many examples of fan labor.

Cover for "Spockanalia," a Star Trez fan zine made in the 1960s by fans of the show.
IMAGE VIA TEXAS A&M UNIVERSITY

How Copyright Law Changed The Game

Given the number of copyrightable works that are made in the United States and the fact that a majority of fanfiction comes from users in the United States, most cases concerning fanfiction and copyright follow the United States copyright laws.

According to US copyright law, there are three things to consider when dealing with the legality of a piece of fanfiction:

  1. The copyrightability of the source material
  2. The derivative work right
  3. Fair use

Copyright goes into effect as soon as something is created, even if it’s never published. Only the copyright owners have the exclusive right to make works derived from their own copyrighted work. This last detail is especially important when we look at works written about or based on things in the public domain. When something enters the public domain, it’s because the copyright of that work has expired. For works from 1978 and later, copyright protection lasts for the life of the author plus 70 years; for works posted anonymously or that don’t have an author, the protection lasts for 95 years from publication or 120 from its original creation.

For anything created on something that isn’t in the public domain, the copyright owner can exercise their exclusive right against fanfiction writers. Specifically, they can accuse the fanfiction writer of copyright infringement—the use of a work protected by copyright being used without permission when permission is required. The copyright owner must provide evidence that proves the writer is using their copyrighted material. The consequences of a successfully proved copyright infringement case range anywhere from destroying the fanfiction to paying fees and fines.

It is possible for fanfiction to not be liable for copyright infringement as long as it falls under fair use. The fair use doctrine permits the limited use of copyrighted works without getting permission from the copyright holder. When considering fair use in court, there are four factors to consider with fanfiction:

  1. The intended use of the work in question
  2. The nature of the copyrighted work
  3. How much and in what way the copyrighted material appear
  4. The effect of the work on the potential market or value of the copyrighted work

Fair use is dealt with on a case-by-case basis. Generally, fanfiction that is transformative counts as fair use—transformative, meaning that it uses the copyrighted work in a different way than originally made or for a different purpose.

There hasn’t been a legal case that directly confronts fanfiction and fair use, although there have been several cases concerning copyright infringement that provide insight into what would happen if a piece of fanfiction was under analysis in court.

But there is one case that closely mimics what would happen if someone took a fic writer to court. Let’s take a look at that case and what it established for fanfiction and fic writers in the legal sphere.

A Crucial Case For Fic Writers

In 2009, J.D. Salinger, author of Catcher in the Rye, consulted lawyers about a new book titled 60 Years Later: Coming Through the Rye by Swedish author Fredrik Colting, who wrote the name under the pseudonym J. D. California. The book was an unauthorized continuation of Holden Caulified’s story, aged sixty years. Now 76 years old, Holden, Mr. C in Colting’s book, muses on escaping his nursing home.

Book cover for "60 Years Later: Coming Through the Rye" by Fredrick Colting, under the pen name J.D. California.
IMAGE VIA GOODREADS

Salinger’s lawyers filed a copyright infringement lawsuit in June of 2009 under the grounds that Colting’s work was derivative of Catcher in the Rye and the character Holden Caulfield, infringing Salinger’s copyright.

United States District Court Judge Deborah A. Batts rejected Colting and his defense team’s arguments of parody and criticism on the basis that:

…the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.

Judge Batts banned the publication of Colting’s work within the United States. Although he tried to appeal the verdict, Colting eventually agreed to cease distribution of it within North America in 2011. The book, however, is still available for purchase outside of the continent and may be available for print in the United States when Catcher in the Rye enters the public domain.

From Fic to Fiction

What can we learn from Holden Caulfield, his unauthorized elderly persona, and their day in court? 

Well, as your adorable and fearless leader through this journey of fanfiction (and as someone who may or may not foray into fanfiction in her own time), Colting broke the cardinal rule of fanfiction: he tried to make a profit. The wide array of sites to post fanfiction on, all of which are free and come with no paywalls, keep fic writers and fans from accidentally violating copyright laws by making money off their creations. And most fans don’t want to make money off what they post–just getting their work out there for their community to see is enough for them.

Secondly, Colting’s work was not transformative. He did not add or change the original message of Catcher in the Rye, nor did he do anything unprecedented with Holden Caulfield’s character. Instead, he tried to elongate Holden’s story arc by putting it sixty years in the future, not to mention he didn’t reach out to Salinger once Colting knew he intended to publish his work. 

Colting might have had more success in getting his book distributed in North America if his book had been more like The Wind Done Gone by Alice Randall. The Wind Done Gone is an alternative account of Gone with the Wind by Margaret Mitchell, which tells the story of Scarlett O’Hara, the daughter of a wealthy plantation owner. Instead of focusing on Scarlett, Randall’s novel focuses on a character of Randall’s making, Scarlett’s half-sister Cyrana who is a daughter to the wealthy plantation owner and an enslaved woman called Mammy.

Book cover for "The Wind Done Gone" by Alice Randall.
IMAGE VIA GOODREADS

The Wind Done Gone also had its time in court, when Margaret Mitchell’s estate sued Randall for copyright infringement. The United States Court of Appeals for the Eleventh Circuit eventually decided that Randall’s novel was protected under fair use. There was a suitable argument that the book was a parody of Mitchell’s original, using similarities to Gone with the Wind to make comments on the original book and add to the conversation surrounding it.

Unlike Colting, Randall also went to lengths to avoid using the names of Mitchell’s original characters and locations. Avoiding Mitchell’s original names lessened the likelihood of readers mistaking it for the original, and also made it easier to focus on the separate story Randall was telling through Cyrana.

I don’t have any doubt Colting is a fan of Salinger, Catcher in the Rye, or Holden Caulfield. And I’m sure he had good intentions with publishing and distributing his book; like any other fan, Colting most likely wanted to share his love of Catcher in the Rye with other Holden Caulfield fans. But ultimately, he did it in a way that the author found disrespectful and ended up doing more harm than good.

An Evolving Matter

Fanfiction changes, grows, and evolves just as much as conventional literature–maybe even more so, given the writing community’s ability to write and experiment without being beholden to traditional publishing etiquette. This fluid nature makes fanfiction such a tricky terrain to navigate in the legal sphere–well, its fluidity and the fact that copyright owners don’t share a unanimous opinion of fanfiction’s existence.

There’s no way to predict how fanfiction will appear in court again, and what the ruling on it may be. But the use of fanfiction for profit is the exception, not the rule. Many people are content with fanfiction being a labor of love–a love of fandom, and a love of writing.

Because that’s what fanfiction is and always has been about. It’s about doing what you love to pay tribute to what you love.


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