Copyright and Fanfiction: A Primer
I recently found myself down a rabbit hole while researching fanfiction and copyright. I was hoping to clarify what is and isn’t legal but clarity was not my result. I ended up with a headache and more questions. I assume most people who wade into the world of fanfiction go forth without considering copyright. It seems like a real downer to think about legalities when you’re about to create the ending your favorite story deserves. Am I about to be the buzzkill? I hope not.
Rather than try to wow anyone with all my learned (non)wisdom on how to practice safe fanfiction, I figured I would lay out some of the information I found scattered across the internet. I’ll try to iron out what copyright issues are at play.
Is fanfiction technically legal?
Not exactly, according to Kristina Butke from In Your Write Mind, any derivative works created without direct permission from the copyright owner is a violation of copyright. Things get a lot more confusing than that, though.
What about Fair Use?
Fair Use is a defense – which can be hard to understand. According to copyright.gov, “only a federal court can determine whether a particular use is, in fact, a fair use under the law.” Which means that once Fair Use comes into play, it’s as a result a copyright infringement suit. However, copyright.gov defines Fair Use as a doctrine that “promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” These cases include criticism, news reporting, teaching, research, etc. Not tricky enough for you? Keep going.
What about Transformative Works?
This is where things get really confusing. According to Butke, transforming an original (derivative) work is a violation of copyright, but the transformation that results is, in fact, protected by copyright.
The idea that copyright is transformative work and therefore “protected” seems to stem from a misunderstanding of what transformative work is. According to Stanford University Libraries, “a fair use is any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work…” So what is a ‘transformative’ use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general guidelines and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition.”
It appears that the word “transformative” in this definition does not mean taking original works and expanding upon them, but rather commenting on them, for use of education or parody, for example. But, as the Stanford website notes, the term is quite ambiguous.
Why is there so much fanfiction if it’s illegal?
- Some authors allow it and even encourage it
- Authors like J.K. Rowling and Meg Cabot encourage fanfiction based on their works with some stipulations (for example, Meg Cabot does not approve of commercializing or making money off of fanfic based on her books.)
- Some authors don’t
- George R.R. Martin and Ann Rice actively request that fans not create fiction based on their copyrighted original works.
Discouraging fanfiction isn’t the purpose of this post. There are many benefits to it. Writing fanfiction is an excellent writing exercise and an argument can be made that it creates more interest in the derivative work. However, understanding the role copyright plays is still important to be thoughtful and intentional with your (repurposed) art.
- Don’t just stop creating fanfiction
- Ask for permission, if you want to be safest
- Don’t assume the author is okay with it (Butke links to fanlore.org with a list of author polices on fanfic)
- Do not make your fanfiction commercial
- Read up on copyright to understand more about how your fanfic is affected
I recommend you read the entire Butke article to get some great resources and information on copyright and fanfiction.
For more information and the resources I used to write this quick reference guide to copyright and fanfiction see the following links:
- Yes, fanworks are illegal: harsh truths about copyright & Fair Use by Kristina Butke
- The U.S. Copyright Office
- Stanford University Libraries Copyright & Fair Use Guide
- Copyright: An Interpretation of the ALA Code of Ethics
What are your thoughts on copyright? Is the law outdated? What would you change if you could?
Jacqui Higgins-Dailey worked as a public librarian for 10 years before becoming full-time residential library faculty at Glendale Community College in Arizona. She holds a bachelor’s degree in journalism from California State University, Chico and a masters in library science from the University of North Texas. She is passionate about information literacy instruction and loves to read, write, hike and travel.
Another excellent resource on the legality of fanworks is the Organization for Transformative Works, and especially their Legal Advocacy page at https://www.transformativeworks.org/legal/.