In fan fiction, writers take familiar characters and story elements from existing books, movies, television shows, and popular culture and incorporate them into new stories. Fan fiction is especially popular within online communities, such as FanFiction.net, where fans come together to read and share works. Sparking lively discussion about new scenarios for favorite characters, fan fiction generates continuing interest in the original works and encourages creativity and participation from loyal fans. However, because fan fiction writers rarely get consent from authors of the original works, copyright infringement concerns arise. Fan fiction writers should understand the legal issues related to their work so that they can appropriately and effectively address copyright infringement claims.
The Fair Use Defense
Under US Copyright law, copyright owners have the right to distribute derivative works based on their original works. Derivative works include sequels, retellings, and other works based on the copyright-protected characters and plots of an original work. Fan fiction writers who use the copyrighted components of another’s work and create derivative work without consent risk being sued for copyright infringement and paying monetary damages, including statutory damages of $750 to $150,000 per work infringed, if held liable.
But US Copyright law may provide a safe harbor from copyright infringement claims for some instances of fan fiction under the doctrine of fair use. Under fair use, copyrighted work used without permission from the copyright holder “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Courts evaluate the following factors on a case-by-case basis to decide whether a particular derivative work constitutes fair use.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
Personal, noncommercial uses are more likely to be fair use than commercial uses. Thus, fan fiction published by the writer for no monetary gain is more likely to be deemed lawful fair use. Transformative uses that alter the “expression, message, and meaning” of the original work, such as through parodies and critiques, are also more likely to be fair use.
- The nature of the copyrighted work.
Fan fiction based on nonfictional (for example, biographical or historical) work is more likely to be fair use than fan fiction based on “highly imaginative and creative” fictional work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
Although there is no definitive percentage to how much of an original story a writer may incorporate into his or her own fan fiction before it constitutes illegal copyright infringement, a court will take into consideration the quantity and the notoriety of the original work used by the fan fiction writer.
- The effect of the use upon the potential market for or value of the copyrighted work.
This factor relates to market demand for the original work, regardless of whether the fan fiction writer gains profit. Fan fiction is more likely to be fair use when it does not take away commercial demand for the original work.
Copyright Infringement Lawsuits
Compared to the vast number of fan fiction works online and in print, the number of fan fiction lawsuits is relatively low. Authors of original works and their publishers generally tolerate fan fiction works that pose no clear commercial threat, and most fan fiction is available for free. Furthermore, rather than filing lawsuits, copyright holders can issue takedown notices to internet service providers hosting infringing work. Copyright infringement lawsuits are usually triggered when fan fiction is published for commercial profit. In 2009, J.D. Salinger, author of The Catcher in the Rye, filed a copyright infringement lawsuit against Fredrick Colting who wrote 60 Years Later: Coming Through the Rye under the pseudonym John David California. Salinger claimed that 60 Years Later was an unauthorized sequel and Colting’s use of Salinger’s original character, Holden Caulfield, in the novel constituted copyright infringement. Despite Colting’s argument that his book was a lawful parody of The Catcher in the Rye, the court did not find fair use and ruled in favor of Salinger, granting an injunction against the publication, sale, and distribution of Colting’s book. Colting’s case demonstrates the risk and consequences of unlawful distribution of fan fiction, particularly for commercial gain.
Reducing the Legal Consequences of Writing Fan Fiction
Here are a few things you can do to reduce the likelihood of your fan fiction getting targeted for a copyright infringement lawsuit:
- Do not sell your fan fiction or make profit from your fan fiction. Even though you may have infringed upon another’s copyright, copyright holders may decide not to pursue litigation because there is no or minimal financial harm to them and there are no profits from you to collect.
- If you receive a cease-and-desist letter from the copyright holder, comply and cease distribution of the infringing content. Should you want to make a fair use argument for your work, consult with an attorney to discuss the validity of your reasoning and the feasibility of defending against a copyright infringement claim.
- If you publish your work on fan fiction website, make sure you comply with the website’s rules otherwise you may be banned from further contributing fan fiction to the website. For example, fan fiction communities often prohibit their contributors from selling or profiting from their fan fiction works.
- Create fan fiction based on work in the public domain. Public domain works are no longer under copyright protection so the derivative works are legal. The 2009 book Pride and Prejudice and Zombies is an example of a successful work of commercial fan fiction, incorporating character and plot elements from Jane Austen’s Pride and Prejudice, a novel in the public domain.