Is Fanfiction Legal? A Lawyer's Guide to Copyrights & Avoiding Lawsuits
Jarrod Easterling
Attorney and legal consultant.
In many respects, fanfiction adds a lot of value to the writing community. It’s a great way for authors to use their creativity and practice writing under less pressure, with pre-developed worlds and characters.
Many writers find fanfiction easier to write, because the world is already in place. It’s like playing with a Barbie Dreamhouse instead of building your own dollhouse from scratch.
Fanfiction is also a good way to connect with other people who are interested in the same media as you.
While fanfiction can be a helpful tool for writers, it can also be legally dicey in a few ways. Let’s talk about what you legally can and cannot do with fanfiction.
Legality of fanfiction
The legality of fanfiction is a complex issue that depends on a variety of factors, including the circumstances, jurisdiction, and the owner of the original copyrighted work. This is a great time to mention that nothing in this article should be construed as legal advice, and you should always consult with a lawyer if you need legal advice before taking action.
In most cases, fanfiction involves using someone else’s copyrighted work (or portions of it, like characters, setting, etc.), which can technically be copyright infringement, because copyright law grants the holder exclusive right to control how the work is used and distributed.
However, there are many instances in which fanfiction is legal. For example, if protected under Fair Use (by adding new elements, commentary, or criticism—in some way "transforming" the work), if the work is under public domain (keep reading to learn more about that), or if the creator has allowed fanfiction of the work.
It may also be helpful to note that if your fanfiction is a problem, you would first receive a takedown notice (cease and desist) before any further legal action is taken.
So for your fanfiction to result in legal action, it needs to jump through several hoops:
1. Being noticed by the copyright holder
2. The copyright holder caring that you wrote it
3. You receive a takedown notice
4. You DON’T comply with the takedown notice (which you should, if you receive one)
5. The copyright holder cares enough to pursue legal action
6. The court rules in their favor, proving your fanfiction does not fall under Fair Use
As you can see, the chance of your non-commercial fanfiction resulting in legal action against you is very low.
Read on to learn about the cases in which you are more likely to be sued for fanfiction.
What is public domain?
Public domain refers to creative works, such as books, music, and art that are not protected by intellectual property laws, such as copyright, trademark, or patent. These works can be freely used, copied, or distributed without permission from the original creator or owner of the work.
In general, works enter the public domain when their copyright term expires, or when the author chooses to release them into the public domain. In some cases, works may also be considered public domain if they were created by the government, or if they were never eligible for copyright protection in the first place, such as works that are too short or too factual to be protected. ("Too factual" meaning it consists primarily of factual info or data that aren’t original enough for copyright, like a phone directory.)
The public domain is an important resource for education, research, and creativity, as it allows people to build on existing works without permission or licensing fees. (Imagine a world without Pride and Prejudice and Zombies. That is a world I would not want to live in.)
However, it’s important to note that not all uses of public domain works are allowed, and that there may be some restrictions or limitations on their use, depending on the specific laws and regulations in your jurisdiction.
Is it legal to make money off of fanfiction?
Sort of! It isn’t legal to make money off of a reimagined version of someone else’s copyrighted material, but many published works originated as fanfiction of copyrighted material. If the source-work has entered the public domain, then it is certainly legal to make money off of your own version of it.
Be careful with public domain works. Make sure you’re only including elements from the version within the public domain. For example, Winnie the Pooh is now public domain, but if you put him a red crop top, Disney will kidnap you in the night and you’ll never be seen again (or something). Use only the public domain version of the material, because elements added to other iterations could be protected under a separate copyright.
Can you get sued for writing fanfiction?
Yes, it is possible to get sued for writing fanfiction, as it generally involves using someone else's copyrighted characters or settings without their permission. However, there are ways it is legal.
While some creators may be supportive of fanfiction and may allow fans to write and share stories using their characters and settings, others may not be as accepting and may take legal action to protect their intellectual property rights.
In some cases, fanfiction may be considered a copyright infringement if it 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. Even if the fanfiction author does not make money from their work, they may still be liable for copyright infringement, as the use of copyrighted material without permission is generally not allowed.
However, it's worth noting that not all fanfiction is considered copyright infringement, and there are some instances where it may be protected under Fair Use or other legal exceptions. For example, if the fanfiction is a parody, commentary, or criticism of the original work, it may be considered a fair use and may be protected under the law. Ultimately, the legality of fanfiction can be complex, and whether or not it is considered infringing depends on the specific circumstances of the case.
Can you get sued for selling fanfiction?
In short, yes, you can get sued for selling fanfiction. If you want to skyrocket your chances of a lawsuit from writing fanfiction, go ahead and sell it as is.
Even if the fanfiction author does not make a significant profit from their work, selling fanfiction may still be considered a copyright infringement, as it involves using someone else's characters, settings, and other elements without permission. However, as I mentioned before, whether or not fanfiction is considered copyright infringement can depend on the specific circumstances of the case, and there are some instances where fanfiction may be protected under Fair Use or other legal exceptions.
It's important for fanfiction writers to understand the potential legal risks of selling their work, and to be aware of the laws and regulations that apply to the use of copyrighted material. If in doubt, it is a good idea to seek legal advice before selling fanfiction or any other works based on someone else's intellectual property.
Should authors read or interact with fanfiction of their own works?
Fanfiction of your own stories is a huge compliment! Someone cared enough about your characters and worlds to write their own stories with it. While it might be tempting to reach out to those writers, or even to share their stories, you shouldn’t.
Why?
If there’s proof that you’ve read—or even know about—a work of fanfiction, then you write a sequel to that story and accidentally use the ideas from someone’s fanfiction, it could be considered plagiarism.
If you’re thinking, wait, but ideas can’t be copyrighted or plagiarized.
Sure, but if someone drags you into court over it, you’ve lost. Even if it rules in your favor, you’re out time and money from the process—not to mention you’ve likely lost good will in your audience because you might seem like a bit of a fraud.
As a rule of thumb, avoid reading or even mentioning fanfiction of your own writing.
Is it illegal to write fanfiction about real people? What about selling it?
If you’ve ever read the copyright page of a book, you’ve probably seen some variation of this text:
All characters in this publication are fictitious, and any resemblance to real people, alive or dead, is purely coincidental.
This bit is included just in case someone recognizes a direct quote you included from them, or something to that effect.
When you write about real people, you run the risk of a defamation lawsuit, especially if you’ve made money off of the piece.
Will Dan and Phil rain legal fire upon you for that one-shot you posted on fanfiction.net in 2013? Probably not! Should you delete it? Nah, you don't remember your login, anyway.
But when it comes to publishing books about, or including, real-life people in a way that they could recognize, tread carefully.
Always. Change. The. Names. If a character is inspired or influenced (or directly based on) a real-life person, do not use their real name, real places, or any kind of event that they could prove represents them and their real life actions.
You’d be hard-pressed to find a writer who hasn’t let a real person influence their characters and stories—just be careful with it.
Note: You'll encounter different rules of thumb when writing something like a tell-all memoir, but that's a different subject.
How to write fanfiction without legal consequences
Here are some situations where you’re more than likely in the clear to write your fanfiction.
1. If it falls under Fair Use defense.
Fanfiction is typically protected under Fair Use. However, when it comes to fanfiction, the Fair Use defense is assessed on a case-by case basis. The Court will look at this illustrative list of statutory factors when making a fair use determination:
1. The purpose and Character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. [T]he nature of the copy-righted work;
3. [T]he amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. [T]he effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C Sec. 107
Sadly, there is no case law that is directly on point on whether fanfiction falls squarely within the realm of fair use. Your work of fanfiction is more likely to be considered fair use if it is "transformative" in regards to the original work. A work is considered transformative when it adds something new, has a further purpose or different character(s), or alters the first with new expression, meaning, or message. The more transformative your fanfiction is, the more likely other factors that weigh against a finding of fair use, such as commercialism, will have less significance in the eyes of the court.
In essence: The more your fanfiction differs from the original source material, the safer you are.
While no single factor, in and of itself, will automatically disqualify you from the Fair Use defense, the odds of a court considering your work to be within the realm of fair use drops significantly when you try to profit off of your fanfiction work. To protect yourself, do not try to make money from your fanfiction.
2. If you’re not defaming a real person
That bit of legalese I mentioned earlier (All characters in this publication are fictitious, and any resemblance to real people, alive or dead, is purely coincidental.) is included on copyright pages to cover the author for any accidental resemblances of real people.
If you are purposely writing fanfiction about real life people who exist, and it reflects poorly upon them, pisses them off, or they’re feeling saucy that day, you run a good risk of legal action (i.e., don't do it.)
3. If you do publish, the situation and characters should not resemble the original text
E.L. James limboed right under the bar and made millions of dollars with the 50 Shades of Grey franchise. Lots of books got their start as fanfiction. It’s the end product that matters. If you scrub your story of any recognizable element from the original copyrighted work, you’re in the clear.
4. If the original text falls under the public domain
See above.
5. If you have permission from the author of the original work
Some writers publically give the go-ahead for other creatives to reimagine and share their stories. In which case, great! You're good to go.
All in all, fanfiction is a great way to practice different writing techniques. It’s easy to focus on prose, dialogue, flow, and other elements when the world and characters are already built for you. It’s also a ton of fun!
But the general legality of fanfiction can be a little dicey, so it’s important to be aware of the risks and seek legal advice if you have any doubts. Again, this article is not intended to be construed as legal advice. When in the realm of fanfiction, always remember to tread carefully.
**The practice of law is complicated, with specific rules and exceptions for different circumstances. Generic online advice is not necessarily a stand-in for professional legal advisement in particular cases.**
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