Should fan fiction be legal?

If a writer posts her own UNPUBs online, there isn’t usually an issue.  But what if she creates a new story using someone else’s established characters?

Fan fiction delves into an area where creativity and copyright clash.  Star Trek, Star Wars, Buffy the Vampire Slayer, Harry Potter, Batman, it’s all out there.  People are writing new adventures for their favorite characters and posting them for other fans to share.  And they’ve been retelling tales with new twists for centuries.

I have nothing against fan fiction, although it’s not my chosen form of expression.  It wouldn’t surprise me if a lot of artists, in their imitative phase, produced derivative works and never showed them to anyone.  I did only one myself.  Yes, I shared it with a few select individuals.  No, it’s not online and you’ll never see it there.

Personally, it wouldn’t get my nose out of joint if people wrote stories about one of my published characters (if I had any, that is!), as long as they weren’t selling them.  I don’t really want people making money off my creations unless I license them to do so, as in merchandising, etc.  I may be open to that.

The issue gets sticky when fair use considerations rear their heads.  Chillingeffects.org, maintained by Stanford Center for Internet & Society, says “The fair use doctrine says that otherwise copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

Fan fiction doesn’t fall under this description.  Why?

(Disclaimer:  I am not a lawyer.  For in-depth questions on copyright infringement, please consult a specialized attorney.)

When someone writes fanfic, as it’s commonly referred to, she creates what may be a derivative work using someone else’s established characters.  Under the original copyright, only the holder may have the exclusive right to use or reproduce them in new works.  If anyone else does it, that’s a violation.

Can you steal an idea?  Not really.  Ideas can’t be copyrighted.  They have to be developed in fixed media.  For those who wonder, that does include a computerized manuscript.  It’s not necessary to register your work unless you need to sue someone who stole it.  The very act of fixing it in a tangible form establishes copyright.

Look at all the works on bookstore shelves right now similar to Twilight. A vampire has a relationship with a human?  Buffy did it already.  Did Stephanie Meyer steal from Buffy? No, she took a trope (a common device) and created an original story around it.  So did all the writers who jumped on the Twilight bandwagon.

To make it clearer, let’s try an example.  Mary Sue and Bobby Joe are in a critique group tossing ideas around.  Mary Sue writes a story based on Bobby Joe’s musings about a vampire in love with a werewolf.  Bobby Joe can’t claim this plotline as his own creation because it’s generic.  He can’t stop her from writing her story or even publishing it.

If Bobby Joe publishes a book about the relationship between Fiona the vampire and Colin the werewolf and creates very specific characters, he then has a copyright on those characters.  Mary Sue can’t use them.  She can’t write about Fiona and Colin in a new adventure without violating Bobby Joe’s rights.  She can’t use elements unique to that work and those characters.

However, if Mary Sue were to write a parody of Bobby Joe’s book, similar to the Vampires Suck spoof of the Twilight film, that could constitute fair use and might be allowed.  A critical literary analysis of the Fiona and Colin saga as romantic horror fiction, even with quotes, could also fall under fair use.

What if Mary Sue’s adaptation isn’t published, either online or in print?  It’s still a violation.  I don’t know if Bobby Joe could sue based on this, or if he’d even want to.  If Mary Sue wrote the fanfic for her own pleasure or for no profit, even if someone else reads it, where is the harm?

Individual authors have their own positions about fanfic.  JK Rowling has said she is flattered by it, as long as it remains non-commercial and not obscene.  Conversely, Anne Rice states “I do not allow fan fiction. The characters are copyrighted. It upsets me terribly to even think about fan fiction with my characters. I advise my readers to write your own original stories with your own characters. It is absolutely essential that you respect my wishes.”

There are upsides to fanfic.  It’s certainly a means of tribute to a film, book or television series.  Fan fiction can help a writer practice craft elements like story structure, plotting, and editing without her taking the time to world-build.  Using established characters, she can practice stretching them while still staying true to their personalities.

My fanfic was a great way to get back into the novel form after a long period of mostly academic writing.  And I actually came up with a story I was able to adapt to my own characters.  As a writing exercise it’s useful, although I highly doubt I’ll ever go there again.

Fan fiction writers run other risks with their material.  DC Comics has this statement on their message board policy page:

By posting any fan fiction or proposed story ideas or plots on DC’s Message Boards, you waive any claims for credit or consideration of any kind as a result of DC’s publication or use of any similar matter in any manner or medium.

I am not a lawyer, but that reads as if they are saying “If you post something we like using our original creations, we can take your adaptation idea or even your script/written work and use it without recompense to you.” With this disclaimer, they could hire in-house writers to write your fanfic idea and you get nothing.

Fan fiction can be dangerous territory.  If you get busted for it, penalties are harsh and expensive.  And of course, your reputation could be damaged irreparably.  Perhaps someday authors and fans will reach an acceptable compromise with this issue.  Until then, it seems that fanfic writers will remain closeted and clouded in suspicion.

If you have any thoughts about writing fan fiction, from an author or reader standpoint, please share in the comments.  No personal attacks, please; let’s keep any debate polite and respectful.

2 thoughts on “Should fan fiction be legal?

  1. I have very strong feelings about fanfic. and they are not good. Mainly because the majority of fanfic that I have read is little more than juvenile expressions of a mostly erotic nature. Even the fanfic that is not in the above realm is a pale comparison to the original article. A part of me also thinks that part of writing is coming up with your own ideas and characters. Even if a writer is “fleshing out” an aspect of Captain Kirk not touched on by the creator it is still using the aspects already created.

    Using fanfic as a way to do something different or to personally explore writing styles in my eyes is ok, but to actually take it seriously is another matter.

    Hey but that is just me.

    • That’s kind of why I never posted mine, Istagi. It was a personal thing and I used it as a writing exercise, so there wasn’t much point. I did share it with family and a few close friends, but mostly because it was so much fun to write I couldn’t keep it to myself. But I didn’t want it online. I’ll never do it again, either. It’s just not my thing.

      Some fanfic writers do write their own stuff and do fanfic for fun. I can’t imagine writing ONLY that, however.

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