Internet and Intellectual Property Justice Clinic
12May/13

Fan Fiction and Copyright Law

Author: Copyright Law

By Sam T.

50 Shades of Grey and Nightlight, what do these two have in common? They all started as fan fictions of Stephenie Meyer’s Twilight series. Fan fiction is when someone takes either the story or characters (or both) of another author’s work and creates their own story with it.

Fictional vampire craze aside, the scale of success Meyer has achieved is nothing short of astounding and has resulted in a large following of Twihards, diehard fans of her work. These fans have taken characters from Twilight: Bella, Edward, Jacob, and created new characters inspired by characters from Twilight such as Ana and Christian of 50 Shades of Grey.

While these works have been generally flattering of the original work, what happens if Meyer decides to press charges for the use of her copyrighted characters? Contrary to the large amount of fan fiction produced, fan fiction can be considered a copyright violation under the Copyright Act of 1976. An author could turn a blind eye to the violation or in the case of J.K. Rowling, even encourage fans to create derivative works using her characters but an author can also choose to take action under the Copyright Act of 1976. Continuing with the Harry Potter example, J.K. Rowling’s initial enthusiasm concerning fan fiction was quickly dampened and she later successfully pulled down several works of fan fiction that she deemed both harmful and improbable for her characters.

Under the Copyright Act of 1976, a copyright owner has the exclusive right to reproduce, adapt, distribute, perform and display their work. Any person who infringes upon the right of a copyright owner without their permission has violated someone else’s copyright.

If a writer of fan fiction is sued for infringement the writer can make an argument of fair use. Under fair use, there is a four factor test that the courts apply: 1) the purpose and character of the use (commercial in nature or nonprofit educational purposes), 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work, and 4) the effect of the use on the potential market of the copyrighted work.

So what has a fear of copyright violations mean for the future of websites like fanfiction.net or archiveofourown.org? Many writers of fan fiction place a disclaimer at the beginning of their story pointing out that they do not own the characters within the work of fiction. Considering most fan fiction is written for fellow fans and is not being published for monetary gain, it would appear that fan fiction might be safe from a charge of copyright infringement under fair use. But in cases of 50 Shades of Grey where the work is inspired by the characters of Twilight and written in an alternate universe, is the work different enough from the original work? Or is it not a copyright violation because of the fair use defense? Under United States copyright law, to qualify as an original work the level of originality is “a modicum,” a low bar that protects almost all manners of work so long as the work was created by the author. Considering this low threshold, most fan fictions are original due to the authors having no connection to the originating author other than inspiration.

While many authors and television show writers such as J.K. Rowling and Joss Whedon have supported fan fiction, in that they have even hosted contests for fan fiction, these same writers have also later brought copyright lawsuits against writers of fan fiction. Returning to the Harry Potter, J.K. Rowling initially was supportive of fan fiction writers, in particular, the Starkid Productions’ A Very Potter Musical franchise. However, Rowling was also surprised by the amount of sexually explicit fan fiction written about her characters. She took action against specific writers of “smut” while remaining silent against other derivative works such as James Potter, a series concentrating on the future generations of the Potter universe. An author has a right to protect her work but what does it mean when an author chooses to prosecute a particular type of writing while allowing and encouraging others? Unfortunately for writers of fan fiction, it is unclear and the power remains with the author of the originating work.

It is clear though that the law surrounding fan fiction is highly dependent on the copyright owner actually enforcing their rights and prosecuting offenders of their copyright. In cases such as J.K. Rowling in which she is choosing particular pieces of work to prosecute while letting other works that violate her copyright be published, the law clearly sides with her.

Myself, as a person who enjoys the communal and sharing nature of the internet, I would hope that J.K. Rowling allows her characters to inspire writers to write more stories and continue her franchise, even if she does not like a particular use of her characters.