Fan fiction is usually created out of a love for characters the writer has encountered, either in a book, a movie, a television show, or another form of entertainment. Writers of fan fiction will often place their beloved characters in a new world or expanded world, take the plot further than the original, or create what is believed to be an entirely new work.
While it may be a product of love, fan fiction may violate the law.
When books, graphic novels, television shows, or movie plots are typed up, they immediately receive copyright protection (although any of the foregoing entertainment is then presumably registered with the US Copyright Office and additional organizations/agencies). With that copyright protection, the author of the original work is given protection and rights. In addition to the copyright protection over the primary original work, the author/copyright owner also has the “exclusive right to prepare derivative works…”
(17 U.S.C. Section 106(2)).
What is a derivative work?
“A derivative work is a work based on or derived from one or more already existing works…the derivative work right is often referred to as the adaptation right…only the owner of copyright in a work has the right to prepare, or to authorize someone else to create an adaptation of that work.” Circular 14 “Derivative Works” by the US Copyright Office; http://copyright.gov/circs/circ14.pdf
Based on this definition, as provided by the U.S. Copyright Office, when the fan fiction writer takes key characters and ideas and makes another story based on the original story, it arguably falls directly in contention with a copyright holders right to control and/or prepare derivative works. This right allows copyright holders the right to prepare their own derivative work or license out (usually for money) that right to another.
How do the original content writers feel?
There is a great divide amongst authors when it comes to fan fiction and whether they support it, take legal action, or feel negatively about it but refrain from legal action. There are writers such as Jim Butcher, author of The Dresden Files, who have gone the extra step in support of fan fiction by executing a creative commons license. This license allows writers to use his ideas so long as it is non-commercial in nature (here is the author’s fan fiction policy: http://www.jim-butcher.com/posts/2010/new-fanfiction-policy). On the other end of the spectrum, writer and creator of the Game of Thrones series George R.R. Martin feels consent should be requisite for fan fiction and denies such consent on the grounds of protecting himself, his creations, and his livelihood (for his full thoughts on fan fiction check out his live journal: http://grrm.livejournal.com/151914.html).
So if it's a violation of copyright law, why is there so much of it on the internet?
The truth remains that even when fan fiction writers take key characters and place them in new stories, arguably violating copyright law, many authors refrain from seeking legal action because they don’t want to be viewed as “the author who goes after fans.”
Many fans also try and cite “fair use” as grounds for fan fiction. Fair use is an exception to the general rule; however, it has factors and applications that require a whole separate article, which I plan for next month.
Disclaimer: This is for informational purposes only and not exhaustive of all aspects of the law on this topic. It is not to be considered legal advice on any particular set of facts or circumstances; you should contact an attorney for advice on specific legal problems.
by Devon Landis Esq.
Attorney for the Arts