Kara Sears
Fanfiction has long been a popular way for fans to engage with their favourite fictional worlds and characters. However, it also raises legal questions regarding copyright infringement. Fanfiction writers often use copyrighted characters without the original creator's consent, which can lead to legal repercussions if the fanfiction is profiting from the original intellectual property. While fanfiction is generally considered legal if it is non-commercial and transformative, commercial fanfiction can be found in many places and is frequently legal as well. The legality of fanfiction varies depending on the country and the specific laws that apply. In the United States, for example, fanfiction is protected under the concept of fair use, while in the UK, an exception to copyright law allows for caricature, parody, or pastiche. With the proliferation of fanfiction on the internet, the discussion around copyright laws and their relevance in the digital age has become increasingly important.
| Characteristics | Values |
|---|---|
| Fanfiction legality | Depends on the country and its respective laws |
| US law on fanfiction | Generally legal under fair use as long as it's non-commercial and doesn't infringe on trademarks |
| UK law on fanfiction | May be legal under an exception to copyright for caricature, parody, or pastiche |
| Commercial fanfiction | Legal if the source material is in the public domain |
| Fanfiction hosting sites | Some sites have lists of authors who prohibit fanfiction based on their works |
| Fanfiction copyright | Fans own the copyright to their original contributions but not the underlying work |
| Fanfiction and trademark law | Trademark law is less likely to conflict with fanfiction than copyright law |
| Fanfiction and intellectual property law | Using copyrighted characters without consent can lead to legal issues |
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What You'll Learn
Fanfiction and intellectual property law
Fanfiction has long been a topic of debate in the world of intellectual property law. While it can be a form of creative expression and cultural enhancement, it also raises legal concerns, particularly regarding copyright and trademark infringement.
At its core, fanfiction involves creating new stories, comics, movies, or games based on the worlds and characters established by another author. This can lead to legal issues when fan creators use copyrighted characters or settings without the original creator's consent. The law surrounding fanfiction is complex and varies across different countries, but there are some general principles that can be applied.
One key principle is the concept of "fair use" or "fair dealing." In the United States, fanfiction is generally protected under the doctrine of fair use, which allows for limited use of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. This means that as long as the fanfiction is non-commercial and transformative, it is often considered legal. However, commercial fanfiction, or fanfiction that attempts to profit from another's intellectual property, is more likely to be considered copyright infringement.
In the United Kingdom, a similar concept exists with the permitted act of fair dealing for caricature, parody, or pastiche. This allows for the creation of fanfiction that falls within these categories, although the definitions of these terms are not always clear-cut. Other countries, such as Russia and China, may have more lenient copyright laws or less stringent enforcement, allowing for a broader range of fanfiction works to be published.
It is worth noting that trademark law can also come into play with fanfiction. Trademark rights can arise when a fictional character's name or likeness serves to identify the source of an entertainment product. However, trademark law is less likely to conflict with fanfiction compared to copyright law, as trademark rights are generally more limited in scope.
To avoid legal repercussions, fanfiction creators should be mindful of the laws in their respective countries and seek permission from the original authors or publishers when possible. Additionally, platforms like Archive of Our Own (AO3) provide guidelines and legal support for fanfiction creators to help navigate these complex issues.
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Fanfiction and trademark law
Fanfiction has often encountered legal problems due to its usage of copyrighted characters without the original creator's consent. However, trademark law is less likely to come into conflict with fanfiction due to the differences in the legal doctrines of trademark and copyright. Non-commercial and expressive uses may receive protection under the laws of some countries. For example, in South Africa, a T-shirt company was allowed to sell T-shirts parodying Black Label beer.
In the United States, trademark law follows the Lanham Act, or the Trademark Act of 1946, which defines a trademark as "any word, term, name, symbol, or device, or any combination thereof" used in commerce to identify a service or good. This means that the names and likenesses of television, film, and book characters can act as trademarks. However, trademark rights are not automatic and must be established as a distinctive "source identifier" for a particular type of good or service. Trademark dilution may occur when the overuse or improper use of a mark lessens its uniqueness and value as a source identifier, even when it does not create consumer confusion.
To avoid trademark infringement, fanfiction writers should consider the following:
- The distinctiveness and fame of the trademark being used
- The similarity of the infringing mark to the original mark
- The similarity of the infringing goods or services to the trademarked goods or services
- The intent to deceive the purchasing public or trade on the goodwill of the trademark holder
- The level of sophistication of the consumers of the mark
- Whether consumers were actually confused about the source of the goods or services
Fanfiction writers can also utilize descriptive and nominative fair use to avoid trademark infringement. Descriptive fair use allows the use of a descriptive mark in a descriptive way, such as using a trademarked phrase to describe a product. Nominative fair use permits the use of a mark to identify the product that bears that mark, provided that certain conditions are met, such as only using as much of the mark as is necessary for identification. Nominative fair use is often relevant to fanfiction when writers use trademarked names, settings, etc.
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Fanfiction and fair use
Fanfiction has long been a grey area in terms of copyright law. Fanfiction writers can find themselves in legal trouble if their work uses copyrighted characters without the original creator or copyright owner's consent, or if their work copies too much from the original work, uses characters or settings that are too similar to the original, or competes with the market for the original work. However, in some countries, copyright laws are more lenient or less well-enforced, so fanfiction based on the work of popular authors has been published in book form. For example, in Russia, popular science fiction author Sergey Lukyanenko incorporated fan fiction based on his stories into his official canon (with the writers' permission).
Fan fiction hosting sites like MediaMiner and Fanfiction.net have lists of authors whose fandoms are prohibited from their sites. However, fanfiction is more or less legal as long as it's non-commercial and transformative. Noncommercially distributed fan fiction is seen as legal in the United States as long as it's a transformative work. Commercial fan fiction is legal everywhere that the source work is in the public domain. Fan writers who argue that their work is legal through the fair use doctrine use specific fair use arguments such as: fan works do not deprive the owner of the source material of income, fan works may work as free advertisement for the original source material, and fan works are usually non-profit.
In determining the applicability of the fair use defence to fan fiction, courts consider the following factors: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. Fair use is assessed on a case-by-case basis. While there are no bright-line rules, parody and criticism are generally considered fair uses.
Fan writers can also protect themselves by not using the real names of people their characters are based on, nor real places or events that could be proven to represent them and their actions.
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Fanfiction and commercial use
Fanfiction is generally considered legal as long as it is non-commercial in nature. However, commercial fanfiction is also legal in certain cases. For instance, commercial fanfiction is legal when the source material is in the public domain. Examples of such commercial fanfiction include Shakespeare in Love, Something Rotten, West Side Story, and most Disney movies, including The Lion King.
In the United States, fanfiction is protected under the concept of fair use as long as it is non-commercial. Fair use is assessed on a case-by-case basis, and courts consider factors such as the purpose and character of the use, the amount and substantiality of the copyrighted work used, and the effect of the use on the potential market for or value of the copyrighted work.
While US copyright law is often relevant due to the significant amount of fanfiction created in the country, the laws of other nations may also apply depending on the work of fanfiction in question. For example, in South Africa, a T-shirt company was able to sell T-shirts parodying Black Label beer. Additionally, some countries have more lenient copyright laws or less enforcement, such as Russia and China, where it is not uncommon to see fan fiction based on popular authors published in book form.
To avoid legal issues, fanfiction authors should refrain from profiting from their works without the necessary licenses. They can also refer to guidelines provided by content owners, such as Hasbro and Star Trek, which outline what fans can do without worrying about legal repercussions. Authors can also seek guidance from organizations like the Organization for Transformative Works (OTW) and register their works with their nation's copyright office.
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Fanfiction and copyright infringement
Fanfiction is a creative form of expression that has existed for a long time, and with the advent of the internet, it has become even more prevalent. While fanfiction can be a fun and engaging way to explore beloved fictional worlds and characters, it does raise questions about copyright infringement and the law.
Copyright law aims to protect the intellectual property of creators, giving them exclusive rights to reproduce, adapt, and distribute their work. Fanfiction, by its very nature, uses elements created by someone else, and this is where the legal issues arise. Fanfiction writers may find themselves in a precarious position, as their works could be seen as infringing on the copyrights of the original creators or copyright owners.
However, it's important to note that fanfiction is generally protected under the concept of 'fair use' or ''fair dealing', particularly in countries like the United States and the United Kingdom. 'Fair use' allows limited use of copyrighted material for purposes like criticism, news reporting, teaching, and research, without requiring permission from the copyright holder. Fanfiction, when used in a non-commercial manner, can fall under this category, as it does not directly compete with the original work or hinder the economic incentive to create new works. In the UK, an amendment to the Copyright, Designs and Patents Act of 1988 specifically includes an exception for caricature, parody, or pastiche, which fanfiction often falls under.
Despite this, fanfiction writers should still exercise caution. While non-commercial fanfiction is generally tolerated and even encouraged by some original creators, attempting to profit from fanfiction can lead to legal repercussions. This includes selling the fanfiction or using crowdfunding to support its creation. If writers wish to profit from their fanfiction, they must obtain the necessary licenses or permissions from the copyright owner, as seen in the case of '50 Shades of Grey', which began as 'Twilight' fanfiction.
To summarise, fanfiction writers should be mindful of copyright laws and respect the wishes of original creators. While non-commercial fanfiction is generally protected under fair use, attempting to profit from someone else's intellectual property without permission is a violation of copyright law and can lead to legal consequences.
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Frequently asked questions
No, profiting from someone else's intellectual property is copyright infringement. However, some companies pay people to write fanfiction, and commercial fanfiction is legal if the source material is in the public domain.
Fanfiction is generally protected by fair use laws, as long as it's non-commercial and doesn't infringe on trademarks. However, some media owners are more litigious than others, and fanfiction writers have received cease and desist letters in the past.
AO3 (Archive of Our Own) is a popular choice, as it's protected by US "fair use" laws and has a legal team that can help you navigate copyright law. Fanlore also has a list of authors who support fanfiction of their works.
