Image: Matthew Loffhagen
Some stories involve us so deeply that they can no longer be enjoyed passively: a character or setting grabs a reader in a way that only creation can satisfy. For these readers, writing fan fiction stories featuring pre-existing aspects of other works is a fantastic outlet for their creativity and their love of a particular story.
Fan fiction stories can be incredibly high quality, after all they’re labors of love written by people who possess an encyclopedic knowledge of stories that have already been proven to work. In fact, the quality is frequently high enough to sustain entire communities who share, appreciate, and write fan fiction.
The fly in the ointment is that fan fiction deals with legally protected works. By writing stories featuring someone else’s characters, fan fiction authors are treading on risky legal ground. This is doubly the case when they publish their work for others to enjoy.
So, in this article, I’ll provide some legal facts to help fan fiction authors stay out of trouble while they create, and work in harmony with the creators of their beloved source material.
To that end, we’ll start out with the simple stuff.
The public domain
If a thing is in the public domain then it can be used freely in any work. This includes characters such as Robin Hood, Hercules, Tarzan, Dorian Grey, and Dracula (which is why there’s an almost constant stream of movies, books, and video games starring these characters). There are several ways a story can enter the public domain (the author could, for instance, give up their rights to the work), but the most common is simply the passage of time.Public domain characters like Tarzan and Dracula are yours to use. Click To Tweet
In the US, the author retains their rights over a work for the entirety of their life, plus the 70 years that follow their death. Or, if the work is published anonymously or for hire, 95 years from publication or 120 years from creation (whichever is shorter). This varies from country to country, but is generally the norm.
That means that a huge amount of the world’s most recognizable and popular characters are available for fan fiction writers to treat however they want. Some companies will do somersaults to keep characters out of the public domain but this is the exception rather than the rule, and a studious Google will tell you whether your chosen character is public domain or not.
Copyright is a complex process, and there are many public domain characters who are famous because of facets added by later works. The most famous example is Universal’s hold over Frankenstein’s Monster. Mary Shelley’s original novel is sparse in the way of description for the character, and so Universal invented their own ‘look’ when putting the monster onto the big screen.
This means that you can write about Shelley’s monster, but if it has green skin, a flat-top head, and/or bolts through the neck, then you’re encroaching on Universal’s copyright, and they’ve shown themselves to be very keen on not letting that happen.
Sadly, the only way to tell which aspects of an existing character aren’t public domain is to do your research, although if you work solely from the source material and add your own inventions, you’re unlikely to go wrong.
But if it’s the new addition to an established character which has captured your heart – and I’m looking at you, Sherlock fans – then you’re in the same boat as everyone else, and that means dealing with copyright.
In the US and many other countries, authors have copyright over their creations. This is a detailed legal situation, however for fan fiction writers, the chief concern is with derivative works. Copyright gives the author the sole right to create derivative works, basically works which use protected elements of the source material. This is a pretty cut-and-dry situation, stating that you cannot legally use their characters or settings for fan fiction.
There are three ways fan fiction writers may still be free to use copyrighted elements for derivative works. The first is through exceptions given to parody, the second through exceptions granted for ‘fair use’, and the third by general permission of the author.
1. Parody and satire
Here, authors are allowed to use derivative elements of a work in order to parody that work, however what constitutes a genuine parody is a legal decision.
The extent to which a work is a valid parody is based on how ‘transformative’ (rather than derivative) it is in relation to the source material. If a parody is found to transform the copyrighted aspects it uses into something new, then it’s likely to be legally sound. This can be seen in books such as Michael Gerber’s Barry Trotter and the Shameless Parody, where aspects of J.K. Rowling’s Harry Potter series are parodied in a way which clearly differentiates them from the source material, as a parody of both the stories themselves and the way they have been handled as a franchise:
But then comes news that Hollywood is planning a film of Rollin’s first book about Barry. And they all know that that means: loss of creative control; cheap merchandising; millions more Muddles swarming over Hogwash. Barry agrees a plan with Bumblemore; the film must be stopped.
– Michael Gerber, Barry Trotter and the Shameless Parody
This has been firmly distinguished from satire, which is where an author uses derivative elements as part of a more general critique not unique to the original source from which they are drawing. In cases of satire there has been a consistent view that since the satirical author doesn’t ‘need’ to use derivative elements in the same way a parodist does, they are not afforded the same protection.
2. Fair use
Fair use is a provision made for authors so that some aspects of copyrighted work can be utilized for further creativity. It should be stated that, like parody, this is a legal defense.
Fair use considers four conditions:
- the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
– 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use
Melding these factors together reveals two big deciding questions on whether fan fiction is legal a) is it transformative rather than derivative (i.e. are you telling a new story or just retelling someone else’s)? and b) what is the effect on the original work’s value?Fair use, parody, and permission - three paths to legal fan fiction.Click To Tweet
If your story is a new story set in the fictional world, or using the characters, and it doesn’t adversely affect the existing work, then you should be legally protected. This would still depend on how much of the original work you used and would ultimately come down to a legal decision (many writers would consider going to court for this decision too much trouble).
Unfortunately this protection is less present if you’re selling your work. This is seen as creating a form of competition or trading on the original’s reputation, thus adversely affecting the original. This was the case with the story 60 Years Later: Coming Through the Rye, which author John David California declared a sequel to J.D. Salinger’s Catcher in the Rye. Though he claimed it was parodic (it attacked the themes of the original by presenting the same character later in life), the court disagreed and he was judged to be infringing on Salinger’s copyright.
The good news is that as long as you don’t intend to sell your work, or offend the writer, most are happy to allow fan fiction to flourish. In fact, some have even taken steps to specifically allow publication for sale.
3. Author permission
Because fan fiction often springs up out of dedicated fan bases, many authors are happy for fan fiction to exist. Authors such as Neil Gaiman, J.K. Rowling, D.J. Machale, and Terry Pratchett have publicly stated they do not have a problem with derivative works, however often with caveats. Rowling, for instance, has stated that she does not like pornographic fan fiction starring her characters, and Pratchett is happy to allow fan fiction writing so long as he is not forced to encounter it:
I don’t actually object to fan fiction, which by its very nature uses copyrighted and trademarked material, provided that it’s put somewhere where I don’t trip over it… isn’t done for money, and isn’t passed off as ‘official’ in any way.
… Everything works if people are sensible.
– Terry Pratchett, L-Space.org
Other authors, for instance Anne Rice, have a zero tolerance approach. Again, only research can tell you your chosen author’s stance on the issue. If you go ahead with fan fiction, it’s sensible to be respectful of author’s wishes when they’re expressed – online collections have a general policy of removing any content objected to by the author of source material.Using another author’s work? Have fun, but remember to respect their wishes. Click To Tweet
Publishing fan fiction professionally
As described above this is tricky, but there are two easy paths available.
One is Amazon’s ‘Kindle Worlds’. This service allows fan fiction to be professionally published so long as it is from one of the ‘worlds’ which has volunteered to be part of the service. At the moment, this is a very limited pool, found here in its entirety, but does include popular properties such as G.I. Joe, Veronica Mars, The Vampire Diaries, and more. Many creators see fan fiction as an advert for the original work, so this very new service is likely to grow in future.Looking to publish fan fiction? Ask yourself if it’s ‘transformative’.Click To Tweet
The second path is through retroactively removing copyrighted elements from your work. This was famously successful for E.L. James, the author of Fifty Shades of Grey, whose work began as a fan fiction of the popular Twilight series written by Stephenie Meyer.
James is a fantastic example of fan fiction publishing. Her work took pre-existing characters and produced a new story which was ‘transformative’ to the extent that the source characters could have their copyrighted elements removed or changed afterwards without damaging the story.
Elements such as character personalities, and even general settings, are very difficult to copyright and so can be used freely by fan fiction writers. For example a magical school called ‘Hogwarts’ is a clear infringement on J.K. Rowling’s copyright, whereas a magical school called something else is not. It’s not impossible to infringe on copyright this way, changing names is not a complete pass, however it makes it far less likely that your work could adversely affect the original.
The judgement here would come down to ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole’. That is, quite simply, how much of the original copyrighted material remains in your work. If you’re telling a new story with characters of different names but familiar personalities, then you’re probably safe, though this will always be judged on a case-by-case basis.
Humanity vs. Legality
While there are undeniable legal complications to fan fiction, writers shouldn’t feel unduly worried about engaging in it. Copyright law is designed to protect creators financially while allowing as much further creative expression as possible, and most authors are civil or even friendly to fan fiction writers. If you’re a fan fiction writer working on a non-profit basis, then just try to respect any wishes the author of the source material has expressed, or does express down the line. To this end, whatever form your fan fiction takes, it’s always a good idea to begin with a disclaimer identifying the author of the source material from which you started.
If you find other people’s work inspiring, check out Five Experimental Novels That Will Inspire Any Writer for even more ways to get your creativity fizzing. Or, for more on writing as part of a community, try Why Joining A Writing Group May Be The Best Thing You Do All Year.
Are there any characters you wish were already in the public domain that aren’t, or do you want copyright laws that cut fan fiction authors more slack? Let me know what you think in the comments.