Legal issues with fan fiction
Encyclopedia
Legal issues with fan fiction arise due to the prospect that a piece of fan fiction
may constitute a derivative work
, most prominently (but not exclusively) under United States copyright law
.
able creative work
s such as motion pictures, television programs, music, and computer gaming works are produced in the United States
. In addition, a significant amount of fan fiction is created in the United States. For these reasons, although every nation's law is different and different laws may apply to different works of fan fiction, U.S. law is often centrally relevant when determining the legality of writing and/or sharing fan fiction.
Under U.S. Copyright law, the legality of a given work of fan fiction will depend principally on three legal doctrines: (1) copyrightability of the underlying source work; (2) the derivative work right; and (3) fair use.
To have copyright protection under U.S. law, a work must be an "original [work] of authorship fixed in any tangible medium of expression . . . from which [it] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Such works of authorship include but are not limited to literature, music, plays, pictures and architectural works. Copyright can NOT be applied to ideas, concepts, facts or other broad principles regardless of whether they are expressed in a tangible medium or otherwise. Copyright goes into effect automatically, even if a work is not published. For works created in 1978 or later, copyright protection persists for the life of the author plus 70 years; in the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from publication, or for 120 years from the year of its creation, whichever expires first.
According to current United States
copyright
, copyright owners have the exclusive right "to prepare derivative works based upon [their] copyrighted work." A derivative work is any work, including fanfiction based upon one or more preexisting works. In the case where a copyright owner chooses to exercise his/her exclusive right to prepare derivative works against a work of fanfiction, s/he can sue the fanfiction writer for copyright infringement
. To prove infringement, an owner must present evidence establishing that the accused has copied protected elements of the original work and the accused work does not constitute fair use
. The possible remedies available if infringement can be proven include an order to cease sharing and/or to destroy the work (known as an injunction), or monetary damages. The remedy is dependent on the harm done to the copyright owner, the intent of the infringing person, and the grievousness of the infringement. An example of injunction as remedy was seen in the case of Anderson v. Stallone
. There, Sylvester Stallone successfully pursued an action for copyright infringement against Anderson, an author who wrote a proposed script for Rocky IV
, by proving that the copyright-protected characters used in the previous Rocky movies were central to the new script. The court enjoined Anderson from pursuing the creation of a movie or other published work based on his script.
Fanfiction is not infringing if it constitutes fair use
of the underlying copyrighted work. In determining whether a particular use constitutes fair use, courts consider the following four factors:
Fair use is assessed on a case-by-case basis. While such genres as parody
and criticism
are enumerated by statute and case law as presumptively fair uses of a copyrighted work, fan fiction has not historically been recognized by U.S. courts as necessarily constituting these or other enumerated fair use genres, and thus neither falls categorically inside nor categorically outside the presumptive boundaries of fair use. Works of fanfiction are more likely to constitute fair use if they are “transformative” with respect to the original work, if they are non-commercial, if they appropriate relatively little of the original work, and/or if they do not tend to detract from the potential market for or value of the original work.
In a recent case, United States District Court
judge Deborah A. Batts permanently prohibited publication in the United States of a book by a Swedish writer whose protagonist is a 76-year-old version of Holden Caulfield
of J.D. Salinger's The Catcher in the Rye
. Judge Batts explicitly rejected arguments of parody and criticism, stating, "To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody."
Although this ruling may ultimately hold, the case has since been vacated and remanded by the U.S. Court of Appeals for the Second Circuit with orders to apply the eBay v. MercExchange test in determining whether publication of a work can be prohibited on a theory of intellectual property infringement before the case has gone to trial. The case has not yet been heard on remand.
In contrast, in Suntrust Bank v. Houghton Mifflin Co.,the United States Court of Appeals for the Eleventh Circuit
vacated a temporary restraining order and preliminary injunction sought by the copyright holders of Margaret Mitchell's Gone With the Wind
against Alice Randall's The Wind Done Gone
. In determining whether Randall's work rose to the level of transformative, Circuit Judge Birch used the guidelines for transformative works laid out in the Supreme Court's Campbell v. Acuff Rose Music. Birch found Randall's work to be transformative because it "[provided] social benefit, by shedding light on an earlier work, and, in the process, creating a new one." Campbell had already established that the greater the transformative value a work held, the less important the other factors in the fair use
test became. Despite Randall and Houghton Mifflin having released The Wind Done Gone
as a commercial work, and Randall having used a substantial portion of Mitchell's work in her own, Birch found that the highly transformative nature of Randall's book overcame the other prongs of the fair use
test.
Current federal trademark law follows the Lanham Act
, otherwise known as the Trademark Act of 1946. Under the Lanham Act
, a trademark
is “any word, term, name, symbol, or device, or any combination thereof” used in commerce to identify a service or good. Under this definition, it is possible for the names and likenesses of television, film and book characters, fictional settings, or other elements of entertainment products to act as trademarks. Unlike copyright
, however, trademark
rights are not automatic. To establish a right in trademark
, the rights-seeker must establish that his/her mark acts as a distinctive "source identifier" ” for a particular type of good or service. Thus, trademark rights may arise when a fictional character’s name or likeness may serve to identify the source of an entertainment product or related good. For example, the use of Mickey Mouse’s name or likeness may serve to identify a particular book or toy as originating from Disney. One way to establish that a mark acts as a distinctive source identifier is to establish that the relevant purchasing public has developed a strong association between the mark and its originating source. In legal terms, this is known as “secondary meaning.”
If the trademark holder can show that its creation acts as a distinctive source identifier, s/he still must prove a likelihood of confusion to prevail in a trademark infringement
claim. Different courts consider similar but not identical factors when deciding likelihood of confusion. Common factors that may be relevant to fanfiction include:
The courts can weigh the factors in individual cases, and may consider additional factors as they please.
To the extent that fanfiction uses source-identifying characters, settings and such, the marks are often well known are identical to the original, and are used in similar types of goods (i.e., written fiction). In this way, the first three factors relayed here weigh for the trademark holder.
However, fanfiction writers generally do not intend to deceive the consuming public as to the source of the work, and often include prominent disclaimers at the outset of their works stating that the works are not the products of the original creators, both to honor the original creator and to prevent any possible confusion as to source. In addition, as a consuming audience, fanfiction readers are generally sophisticated regarding works' status as fanfiction, and are aware that fanfiction is not written or endorsed by those who hold the trademarks. As such, the last three factors tend to weigh in the direction of fanfiction writers.
Trademark holders may also allege that the use of trademarked characters, settings, etc. may constitute trademark dilution. The concept of trademark dilution is that overuse or improper use of a mark, even when it does not create consumer confusion, can lessen the mark’s uniqueness and value as a source identifier. A dilution claim requires that the mark in question be famous throughout general consuming public and that the use of the mark create a likelihood of either “blurring” or “tarnishment.” A likelihood of blurring occurs when the use of the mark creates an association that is likely to impair the distinctiveness of the famous mark; a likelihood of tarnishment occurs when the use of the mark creates an association that is likely to harm the reputation of the famous mark.
Even if a likelihood of confusion or dilution were found, trademark law provides various defenses to alleged infringement. These defenses fall into the categories of “fair use” and “First Amendment.”
Trademark “fair use” differs significantly from fair use
under copyright law. In trademark law there are two types of fair use
: descriptive
and nominative use
. Descriptive fair use permits the use of a descriptive mark in a descriptive way; for example, an advertisement could say that a particular dress shoe “feels like a sneaker” even though the phrase “Looks like a pump, feels like a sneaker” is the trademark of another company. Nominative fair use permits the use of a mark to identify the product that bears that mark, when (1) the product or service in question is not readily identifiable without use of the trademark; (2) no more of the mark is used than is reasonably necessary to identify the product or service; and (3) the user does nothing beyond use of the mark that would suggest sponsorship or endorsement by the trademark holder. For example, a news story about the New Kids on the Block can use the mark “New Kids on the Block” to identify the band. Nominative fair use is often particularly relevant to fanfiction, since a fanfiction writer’s use of trademarked names, settings, etc. to identify characters, story settings, etc. will generally meet the three requirements for nominative fair use. For this reason, fanfiction is harder to succeed on than an allegation of copyright infringement.
An additional defense to trademark infringement or dilution relies on the First Amendment guarantee of freedom of speech.
courts have shown reluctance to curtail creative uses of trademarks in expressive works. For example, in Mattel v. MCA Records
, United States Court of Appeals for the Ninth Circuit permitted the band Aqua
’s use of Mattel’s trademark in “Barbie” to sell songs, that MCA had a valid parody defense, as Aqua needed to use the word “Barbie” in its song Barbie Girl
, based on the fact that the use of the mark was (1) artistically relevant to the song and (2) not explicitly misleading as to the source of the song. Because there was a relatively small likelihood of confusion, the Ninth Circuit held that the First Amendment protected Aqua’s use of the mark. The First Amendment defense has not stood up where the trademark holder was able to prove the existence of significant actual confusion. An example of this is a parodic publication running a parody ad for a product, and the parody not being well done enough or labeled clearly enough for people to realize it is not a real ad.
Because of these differences in the legal doctrines of trademark
and copyright
, trademark law is less likely to come into conflict with fanfiction.
A brief note on non-U.S. perspectives: while other countries do not necessarily weigh the interests of trademark owners and other speakers in the same way, noncommercial and expressive uses may receive protection under other nations' laws as well. For example, in South Africa, a T-shirt company was able to sell T-shirts parodying Black Label beer.
, have the right to assert claims against fanfiction authors based on rights of publicity.
To date, though, no recorded right of publicity suits have been brought regarding noncommercial fan fiction about real persons. This may be, in part, because most states’ right of publicity laws only apply to uses for commercial gain. But despite the ruling in White, courts have shown hesitation in other suits to shut down even commercialized artistic pursuits based on the right of publicity. Some courts have relied heavily on Circuit Judge Konzinski's strong dissent from the White decision in order to deny a Right of Publicity claim. Others have relied directly on the First Amendment. In ETW v. Jireh, the U.S. Court of Appeals for the Sixth Circuit rejected a right of publicity claim brought by Tiger Woods against an artist who depicted Woods and other golf legends, holding that the transformative nature of the work exempted it from right of publicity liability under the First Amendment. In contrast, in Parks v. LaFace, the U.S. Court of Appeals for the Sixth Circuit held that the Outkast song “Rosa Parks” violated the civil rights icon’s right of publicity because it was not sufficiently transformative. The court explained that the use of a name or likeness is not transformative for right of publicity purposes when it “is used solely to attract attention to a work that is not related to the identified person.” Based on these cases, it is not clear that a court would be willing to abridge free speech by holding that fictional writing about a real person constitutes a violation of that person’s right of publicity.
(OTW). OTW has since advocated the legitimacy of fan fiction due its transformative
nature. OTW's position is that fan fiction and other fan labor
products constitute copyright fair use under 17 U.S.C. § 107 because they add "new meaning and messages to the original" work, and thus fall under the exemption to U.S. copyright law the Supreme Court carved out in Campbell v. Acuff-Rose, and which was later revisited and followed in Suntrust Bank v. Houghton Mifflin Co. OTW's vision includes seeing "all fannish works recognized as legal and transformative and ... accepted as a legitimate creative activity." Toward this end OTW works to educate fan writers and published writers about copyright laws, particularly the open legal questions around fan fiction and other fan works.
OTW also maintains its own fan fiction archive, the Archive of Our Own, commonly called AO3. All fan fiction on the site is recognized as non-profit derivative works.
While OTW provides a centralized netspace for fans to acquire knowledge and aid regarding their own creative works, and a voice for the fan community, it does not represent all fans. Fans have many different views on the legalities of fan works, from the pure question of whether these works are transformative, to differences in how fans feel fan works should be disseminated.
Fan writers who argue that their work is legal through the fair use
doctrine use specific fair use
arguments in the context of fan works, such as:
OTW is also not the only organization to support the idea that fan works are transformative. In Salinger v. Colting, the New York Times and other major media conglomerates filed an amicus brief supporting Colting's book, as did the Library Copyright Alliance.
, J.K. Rowling, D.J. MacHale
, Stephanie Meyer, Terry Pratchett
) do not take issue with authors of derivative works, a number of authors do. They may request that fan fiction archival sites remove any pieces of fan fiction based on their original works. Many also request that bans be put in place to prevent fan works being posted without their direct permission and ability to control the works.
To date, no fan fiction archive has failed to comply with an author’s request to remove works, and many archives feature a full list of authors whose work cannot be the source of a fan fiction on their site. Generally, authors who do not want fan works being written without their direct permission and/or the ability to control it, request that major fan fiction archives remove and ban such works.
To aid fan fiction authors so that they know which fandoms are prohibited on the site the fan fiction site MediaMiner has compiled a list of authors whose works are banned from the site. As they state, “This is a right they [the copyright owner] have as an author or owner of the work. No copyright owner has to allow fan fiction or even tolerate it.”
Most major studios and production companies tolerate fan fiction, and some even encourage it to a certain extent. Paramount Pictures
, for example, allowed the production of Star Trek: The New Voyages
and Star Trek: The New Voyages 2
from Bantam Books
, fan fiction anthologies which followed Bantam's Star Trek Lives! by reprinting stories from various fanzines; as well as Star Trek: Strange New Worlds
, a series of ten anthologies from Pocket Books
in which the short stories were selected through an open submissions process geared toward novice writers.
Due to the ongoing nature of television production, some television producers have implemented similar constraints, one example being Babylon 5
creator J. Michael Straczynski
. His demand that Babylon 5 fan fiction be clearly labeled or kept off the Internet confined most of the Babylon 5 fan fiction community to mailing lists during the show's initial run. J. K. Rowling
has also complained about sexually explicit Harry Potter
fan fiction. However, lawyers on behalf of Ms. Rowling specifically noted that she has "no complaint about innocent fan fiction written by genuine Harry Potter fans."
Many writers and producers state that they do not read fan fiction, citing a fear of being accused of stealing a fan's ideas, but encourage its creation nonetheless. When Buffy the Vampire Slayer went off the air, for instance, creator Joss Whedon
encouraged fans to read fan fiction during the show's timeslot.
Noteworthy in regard to the acceptance of fan fiction is Eric Flint
, who has set up a formal site for the submission of fan fiction into his canon in the 1632 series
at Baen's Bar and has to date published twenty four issues of The Grantville Gazette
in electronic form and five book form. These feature fan fiction and fan non-fiction alongside his original work (paying first semi-pro, and now SFWA
rates). Flint (a former labor organizer and socialist) contends that this collective work allows the expansion of his alternate history universe into something approaching the complexity of reality. It can be argued, however, that since work published in the Gazette is paid (at professional rates) and cleared by Flint for canonicity, that this is not actually "fan fiction" in the commonly-understood sense of the term.
Also noteworthy is the series of Darkover
anthologies published by Marion Zimmer Bradley
, beginning in 1980, consisting largely of fan fiction extended into her canon. These books led to a much talked about (and exaggerated) controversy. MZB read something in a fan story that meshed well with a Darkover book she was currently writing, so she wrote the fan author, Jean Lamb, offering her "a sum and a dedication for all rights to the text." In a 1991 Usenet post, Jean continued, "I attempted at that point to _very politely_ negotiate a better deal. I was told that I had better take what I was offered, that much better authors than I had not been paid as much (we're talking a few hundred dollars here) and had gotten the same sort of 'credit' (this was in the summer of 1992)...a few
months later I received a letter from Ms. Bradley's lawyer threatening me with
a suit." The rumor, however, was that MZB had a skirmish with a fan who claimed authorship of a book identical to one Bradley had published and accused Bradley of "stealing" the idea, and the resultant lawsuit cost Bradley a book. Either way, her attorney advised her against reading fan fiction of her work. Versions of this incident are credited by many to have led to a "zero tolerance" policy on the part of a number of other professional authors, including Andre Norton
, and David Weber
. Mercedes Lackey
used to strictly disallow any posting of fan fiction in her universes on the Internet, though she did allow stories to be published in approved fanzines with signed releases for each story. Recently, she has changed her stance to allow non profit fan fiction of her works so long as the fan fiction is licensed as a derivative work and uses a Creative Commons license
.
Anne Rice
has consistently, and aggressively, objected to fan fiction based on any of her characters (mostly those from her famous Interview with the Vampire
and its sequels in The Vampire Chronicles
) or other elements in her books, and she formally requested that FanFiction.Net remove stories featuring her characters. Similar efforts have also been taken by Annette Curtis Klause
, Robin Hobb
, George R.R. Martin, and Robin McKinley
among others. Many authors do this, they state, in order to protect their copyright and especially to prevent any dilution, saturation, or distortion of the universes and people portrayed in their works.
One curious case is that of Larry Niven
's Known Space
universe. In an author's note in The Ringworld Engineers
, Niven stated that he was finished writing stories in this universe, and that "[i]f you want more Known Space stories, you'll have to write them yourself." Internet writer Elf Sternberg
took him up on that offer, penning a parody
in which members of Niven's hyper-masculine Kzin
species engage in gay sex and BDSM
. Niven responded by denouncing Sternberg's story in the introduction to Man-Kzin Wars IV (Baen Books
, 1991) and issuing a cease-and-desist for copyright violation. To date, Sternberg holds that the story is constitutionally protected parody, while Niven maintains that it is a copyright violation that lies outside of protected speech, though he has not legally pursued the matter further.
Copyright holders may have been changing their policies towards fan fiction.
Some companies like CBS
and LucasFilms Ltd.
, which had been historically hostile to fan fiction, changed parts of their model in order to be more fan friendly. This included trying to encourage fan works and integrating them into official sites.
When not hosting the fan fiction
or being openly tolerant of existing fan sites, companies created partnerships with other companies like FanLib to aid them in the task. The reaction from fans to such alliances and interference in their activities has been mixed, with some people thinking that it violates the basic rules of fan fiction communities. Those fans seem to be increasingly in the minority, as acceptance of such interference is tolerated because of the positives that can result.
Many tie-in novels and novelization
s have the ambiguous status of being officially sanctioned, for-profit fan fiction - though once again, this largely depends on one's definition of fan fiction. Series from Star Trek
to Charmed
have numerous books that exist outside the officially canonical world of the series, much like fan fiction, but which have the official sanction of the show's creators or owners. The refusal by Paramount Pictures
(owners of the Trek franchise) to allow printed adventures to be considered part of the canon has led many fans to consider the books to be a form of fan fiction despite their legal and licensed status, and a similar attitude prevails amongst fans of Buffy, where the series' creator has explicitly declared that the novels and novelizations based on the series are not canon
material.
The attitude of copyright holders toward incorporating fan fiction into the canon varies. It is generally the case that the writers hired for a television series or movie are under strict orders not to read fan fiction out of fear that doing so will cause the copyright holder to be sued later for infringement. However, some copyright holders, such as the BBC
in the case of Doctor Who
, have mechanisms to allow for unsolicited submissions of stories into the official canon, and it is also the case that the writers of canon stories have sometimes been recruited from the ranks of fan fiction writers. In the case of the Doctor Who novels published by Virgin Books
, once the BBC reclaimed the license to publish novels regarding the Doctor, many readers immediately categorized all the Virgin New Adventures
as non-canonical fan fiction.
Finally, there exists a sect of science fiction authors who have admitted to writing fan fiction before they became published, or in other ways have outed themselves as pro-fan fiction. A small sample includes: Naomi Novik
has mentioned writing fanfic for television series and movies, and says she'd be thrilled to know that fans were writing fanfic for her series (though she also said she'd be careful not to read any of it); Anne McCaffrey
allows fanfic, but has a page of rules she expects her fans to follow; Anne Harris has said, "I live for the day my characters get slashed"; J. K. Rowling has mentioned fan fiction approvingly, and her lawyers have confirmed she's okay with fanfics. In 2008, Steven Brust
published a Firefly novel with a CC copyright notice. A larger list, with citations, can be found on the Fanlore page Professional Author Fanfic Policies. Fanlore is a fandom-focused wiki and is an offshoot of the Organization for Transformative Works.
author Terry Pratchett
, while emphasizing that he is careful not to read fanfics, has voiced the opinion that "everything works if people are sensible" and doesn't mind "so long as people don't put it where I can trip over it". However, Pratchett emphasizes that the Discworld and all its characters are ultimately his intellectual property, and stresses that "it is not a franchise".
Neil Gaiman another English author who has written such works as Stardust, Coraline, and American Gods, says he does not mind fan fiction as long as the author notes that the characters are the intellectual property of another and so long as the fiction is not for profit.
In countries such as Russia
, where copyright laws are more lenient or less well enforced, it is not uncommon to see fan fiction based on the work of popular authors published in book form. Sergey Lukyanenko
, a popular science fiction author, went as far as to incorporate some fan fiction based on his stories into official canon (with permission of the writers of the said fan fiction). Perhaps the most famous case, however, is Dmitri Yemets
' Tanya Grotter
book series, a "cultural response" to Harry Potter
, which provoked a lawsuit from J. K. Rowling's estate.
In Japan, the dōjinshi
subculture is similar to a combination of the United States subcultures surrounding underground comics, science fiction fanzines, and fan fiction. Many dōjinshi works are manga
-format fan fiction, which in Japan is, while not strictly legal, generally tolerated and usually encouraged, being looked upon as a form of free advertising or a breeding ground for new talent, most famously the group CLAMP
and Love Hina
author Ken Akamatsu
.
Fan fiction
Fan fiction is a broadly-defined term for fan labor regarding stories about characters or settings written by fans of the original work, rather than by the original creator...
may constitute a derivative work
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...
, most prominently (but not exclusively) under United States copyright law
United States copyright law
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
.
United States copyright law
Significant amounts of copyrightCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
able creative work
Creative work
A creative work is a tangible manifestation of creative effort such as literature, music, paintings, and software. Creative works have in common a degree of arbitrariness, such that it is improbable that two people would independently create the same work. Creative works are part of property...
s such as motion pictures, television programs, music, and computer gaming works are produced in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. In addition, a significant amount of fan fiction is created in the United States. For these reasons, although every nation's law is different and different laws may apply to different works of fan fiction, U.S. law is often centrally relevant when determining the legality of writing and/or sharing fan fiction.
Under U.S. Copyright law, the legality of a given work of fan fiction will depend principally on three legal doctrines: (1) copyrightability of the underlying source work; (2) the derivative work right; and (3) fair use.
To have copyright protection under U.S. law, a work must be an "original [work] of authorship fixed in any tangible medium of expression . . . from which [it] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Such works of authorship include but are not limited to literature, music, plays, pictures and architectural works. Copyright can NOT be applied to ideas, concepts, facts or other broad principles regardless of whether they are expressed in a tangible medium or otherwise. Copyright goes into effect automatically, even if a work is not published. For works created in 1978 or later, copyright protection persists for the life of the author plus 70 years; in the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from publication, or for 120 years from the year of its creation, whichever expires first.
According to current United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, copyright owners have the exclusive right "to prepare derivative works based upon [their] copyrighted work." A derivative work is any work, including fanfiction based upon one or more preexisting works. In the case where a copyright owner chooses to exercise his/her exclusive right to prepare derivative works against a work of fanfiction, s/he can sue the fanfiction writer for copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. To prove infringement, an owner must present evidence establishing that the accused has copied protected elements of the original work and the accused work does not constitute fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
. The possible remedies available if infringement can be proven include an order to cease sharing and/or to destroy the work (known as an injunction), or monetary damages. The remedy is dependent on the harm done to the copyright owner, the intent of the infringing person, and the grievousness of the infringement. An example of injunction as remedy was seen in the case of Anderson v. Stallone
Anderson v. Stallone
Anderson v. Stallone, 11 USPQ2D 1161 was a copyright infringement lawsuit against Sylvester Stallone, MGM, and other parties over a script for Stallone's film Rocky IV...
. There, Sylvester Stallone successfully pursued an action for copyright infringement against Anderson, an author who wrote a proposed script for Rocky IV
Rocky IV
Rocky IV is a 1985 American film written by, directed by, and starring Sylvester Stallone. It is the fourth and most financially successful entry in the Rocky franchise...
, by proving that the copyright-protected characters used in the previous Rocky movies were central to the new script. The court enjoined Anderson from pursuing the creation of a movie or other published work based on his script.
Fanfiction is not infringing if it constitutes fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
of the underlying copyrighted work. In determining whether a particular use constitutes fair use, courts consider the following four factors:
- "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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.”
Fair use is assessed on a case-by-case basis. While such genres as parody
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
and criticism
Criticism
Criticism is the judgement of the merits and faults of the work or actions of an individual or group by another . To criticize does not necessarily imply to find fault, but the word is often taken to mean the simple expression of an objection against prejudice, or a disapproval.Another meaning of...
are enumerated by statute and case law as presumptively fair uses of a copyrighted work, fan fiction has not historically been recognized by U.S. courts as necessarily constituting these or other enumerated fair use genres, and thus neither falls categorically inside nor categorically outside the presumptive boundaries of fair use. Works of fanfiction are more likely to constitute fair use if they are “transformative” with respect to the original work, if they are non-commercial, if they appropriate relatively little of the original work, and/or if they do not tend to detract from the potential market for or value of the original work.
In a recent case, United States District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
judge Deborah A. Batts permanently prohibited publication in the United States of a book by a Swedish writer whose protagonist is a 76-year-old version of Holden Caulfield
Holden Caulfield
Holden Caulfield is the 16-to-17 years old protagonist of author J. D. Salinger's The Catcher in the Rye. He is universally recognized for his resistance to growing older and desire to protect childhood innocence...
of J.D. Salinger's The Catcher in the Rye
The Catcher in the Rye
The Catcher in the Rye is a 1951 novel by J. D. Salinger. Originally published for adults, it has since become popular with adolescent readers for its themes of teenage confusion, angst, alienation, language, and rebellion. It has been translated into almost all of the world's major...
. Judge Batts explicitly rejected arguments of parody and criticism, stating, "To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody."
Although this ruling may ultimately hold, the case has since been vacated and remanded by the U.S. Court of Appeals for the Second Circuit with orders to apply the eBay v. MercExchange test in determining whether publication of a work can be prohibited on a theory of intellectual property infringement before the case has gone to trial. The case has not yet been heard on remand.
In contrast, in Suntrust Bank v. Houghton Mifflin Co.,the United States Court of Appeals for the Eleventh Circuit
United States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
vacated a temporary restraining order and preliminary injunction sought by the copyright holders of Margaret Mitchell's Gone With the Wind
Gone with the Wind
The slaves depicted in Gone with the Wind are primarily loyal house servants, such as Mammy, Pork and Uncle Peter, and these slaves stay on with their masters even after the Emancipation Proclamation of 1863 sets them free...
against Alice Randall's The Wind Done Gone
The Wind Done Gone
The Wind Done Gone is the first novel written by Alice Randall. It was a bestselling historical parallel novel that reinterprets the famous American novel Gone with the Wind by Margaret Mitchell.- Plot summary :...
. In determining whether Randall's work rose to the level of transformative, Circuit Judge Birch used the guidelines for transformative works laid out in the Supreme Court's Campbell v. Acuff Rose Music. Birch found Randall's work to be transformative because it "[provided] social benefit, by shedding light on an earlier work, and, in the process, creating a new one." Campbell had already established that the greater the transformative value a work held, the less important the other factors in the fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
test became. Despite Randall and Houghton Mifflin having released The Wind Done Gone
The Wind Done Gone
The Wind Done Gone is the first novel written by Alice Randall. It was a bestselling historical parallel novel that reinterprets the famous American novel Gone with the Wind by Margaret Mitchell.- Plot summary :...
as a commercial work, and Randall having used a substantial portion of Mitchell's work in her own, Birch found that the highly transformative nature of Randall's book overcame the other prongs of the fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
test.
Trademark law
Separate from the legal issues raised by fanfiction’s interaction with copyright law, legal issues may also develop from United States trademark law.Current federal trademark law follows the Lanham Act
Lanham Act
The Lanham Act is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.-History:Named for Representative Fritz G...
, otherwise known as the Trademark Act of 1946. Under the Lanham Act
Lanham Act
The Lanham Act is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.-History:Named for Representative Fritz G...
, a trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
is “any word, term, name, symbol, or device, or any combination thereof” used in commerce to identify a service or good. Under this definition, it is possible for the names and likenesses of television, film and book characters, fictional settings, or other elements of entertainment products to act as trademarks. Unlike copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, however, trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
rights are not automatic. To establish a right in trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
, the rights-seeker must establish that his/her mark acts as a distinctive "source identifier" ” for a particular type of good or service. Thus, trademark rights may arise when a fictional character’s name or likeness may serve to identify the source of an entertainment product or related good. For example, the use of Mickey Mouse’s name or likeness may serve to identify a particular book or toy as originating from Disney. One way to establish that a mark acts as a distinctive source identifier is to establish that the relevant purchasing public has developed a strong association between the mark and its originating source. In legal terms, this is known as “secondary meaning.”
If the trademark holder can show that its creation acts as a distinctive source identifier, s/he still must prove a likelihood of confusion to prevail in a trademark infringement
Trademark infringement
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees...
claim. Different courts consider similar but not identical factors when deciding likelihood of confusion. Common factors that may be relevant to fanfiction include:
- How well known and distinctive the mark allegedly being infringed is;
- How similar the infringing mark is to the original mark;
- How similar the allegedly infringing goods or services are to the markholder’s goods or services;
- Whether the infringer intended to deceive the purchasing public or to trade on the good will of the markholder;
- The level of sophistication of those persons or groups likely to be the consumers of the mark;
- Whether consumers were actually confused as to the source of the goods or services.
The courts can weigh the factors in individual cases, and may consider additional factors as they please.
To the extent that fanfiction uses source-identifying characters, settings and such, the marks are often well known are identical to the original, and are used in similar types of goods (i.e., written fiction). In this way, the first three factors relayed here weigh for the trademark holder.
However, fanfiction writers generally do not intend to deceive the consuming public as to the source of the work, and often include prominent disclaimers at the outset of their works stating that the works are not the products of the original creators, both to honor the original creator and to prevent any possible confusion as to source. In addition, as a consuming audience, fanfiction readers are generally sophisticated regarding works' status as fanfiction, and are aware that fanfiction is not written or endorsed by those who hold the trademarks. As such, the last three factors tend to weigh in the direction of fanfiction writers.
Trademark holders may also allege that the use of trademarked characters, settings, etc. may constitute trademark dilution. The concept of trademark dilution is that overuse or improper use of a mark, even when it does not create consumer confusion, can lessen the mark’s uniqueness and value as a source identifier. A dilution claim requires that the mark in question be famous throughout general consuming public and that the use of the mark create a likelihood of either “blurring” or “tarnishment.” A likelihood of blurring occurs when the use of the mark creates an association that is likely to impair the distinctiveness of the famous mark; a likelihood of tarnishment occurs when the use of the mark creates an association that is likely to harm the reputation of the famous mark.
Even if a likelihood of confusion or dilution were found, trademark law provides various defenses to alleged infringement. These defenses fall into the categories of “fair use” and “First Amendment.”
Trademark “fair use” differs significantly from fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
under copyright law. In trademark law there are two types of fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
: descriptive
Fair use (U.S. trademark law)
In the United States, trademark law includes a fair use defense, sometimes called "trademark fair use" to distinguish it from the better-known fair use doctrine in copyright. As with copyright law, the trademark fair use doctrine is premised in significant part on the First Amendment guarantees of...
and nominative use
Nominative use
Nominative use, also "nominative fair use", is a legal doctrine that provides an affirmative defense to trademark infringement as enunciated by the United States Ninth Circuit, by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their...
. Descriptive fair use permits the use of a descriptive mark in a descriptive way; for example, an advertisement could say that a particular dress shoe “feels like a sneaker” even though the phrase “Looks like a pump, feels like a sneaker” is the trademark of another company. Nominative fair use permits the use of a mark to identify the product that bears that mark, when (1) the product or service in question is not readily identifiable without use of the trademark; (2) no more of the mark is used than is reasonably necessary to identify the product or service; and (3) the user does nothing beyond use of the mark that would suggest sponsorship or endorsement by the trademark holder. For example, a news story about the New Kids on the Block can use the mark “New Kids on the Block” to identify the band. Nominative fair use is often particularly relevant to fanfiction, since a fanfiction writer’s use of trademarked names, settings, etc. to identify characters, story settings, etc. will generally meet the three requirements for nominative fair use. For this reason, fanfiction is harder to succeed on than an allegation of copyright infringement.
An additional defense to trademark infringement or dilution relies on the First Amendment guarantee of freedom of speech.
courts have shown reluctance to curtail creative uses of trademarks in expressive works. For example, in Mattel v. MCA Records
Mattel v. MCA Records
Mattel v. MCA Records, 296 F.3d 894 , was a series of lawsuits between Mattel and MCA Records that resulted from the 1997 Aqua song, "Barbie Girl"....
, United States Court of Appeals for the Ninth Circuit permitted the band Aqua
Aqua
- Music :* Aqua , a Danish pop band* Aqua , American record producer and composer of film and television scores* Aqua, album by Edgar Froese* Aqua , 1992* "Aqua", a piano piece by Ryuichi Sakamoto...
’s use of Mattel’s trademark in “Barbie” to sell songs, that MCA had a valid parody defense, as Aqua needed to use the word “Barbie” in its song Barbie Girl
Barbie Girl
"Barbie Girl" is a song by the Danish-Norwegian dance-pop group Aqua, who released the song in 1997 as their third single overall, and the first United Kingdom release...
, based on the fact that the use of the mark was (1) artistically relevant to the song and (2) not explicitly misleading as to the source of the song. Because there was a relatively small likelihood of confusion, the Ninth Circuit held that the First Amendment protected Aqua’s use of the mark. The First Amendment defense has not stood up where the trademark holder was able to prove the existence of significant actual confusion. An example of this is a parodic publication running a parody ad for a product, and the parody not being well done enough or labeled clearly enough for people to realize it is not a real ad.
Because of these differences in the legal doctrines of trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
and copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, trademark law is less likely to come into conflict with fanfiction.
A brief note on non-U.S. perspectives: while other countries do not necessarily weigh the interests of trademark owners and other speakers in the same way, noncommercial and expressive uses may receive protection under other nations' laws as well. For example, in South Africa, a T-shirt company was able to sell T-shirts parodying Black Label beer.
Right of Publicity
Many countries, and some U.S. States, have laws governing rights of publicity. In the United States, rights of publicity are governed by state statutes and state common law, and thus vary from state to state. As a general matter, the right of publicity grants a right to famous persons to control the commercial use of their "name, image and likeness," and sometimes extends to one’s broader identity or persona. The case of White v. Samsung provides an example of the right of publicity protecting a celebrity’s persona even when her name and likeness were not used: Samsung created an ad that pictured a robot in a blond wig and a red dress, in a pose that evoked Vanna White’s work on Wheel of Fortune. White prevailed under California law on the theory that although Samsung had not used her name or likeness. Samsung had used a recognizable depiction of her persona without permission for their commercial gain. Arguably, celebrities whose names, images, likenesses or personas are used in Real Person FictionReal person fiction
Real person fiction is a type of fan fiction featuring celebrities or other real people. In the past, terms such as actorfic were used to distinguish such stories from those based on fictional characters from movies or television series....
, have the right to assert claims against fanfiction authors based on rights of publicity.
To date, though, no recorded right of publicity suits have been brought regarding noncommercial fan fiction about real persons. This may be, in part, because most states’ right of publicity laws only apply to uses for commercial gain. But despite the ruling in White, courts have shown hesitation in other suits to shut down even commercialized artistic pursuits based on the right of publicity. Some courts have relied heavily on Circuit Judge Konzinski's strong dissent from the White decision in order to deny a Right of Publicity claim. Others have relied directly on the First Amendment. In ETW v. Jireh, the U.S. Court of Appeals for the Sixth Circuit rejected a right of publicity claim brought by Tiger Woods against an artist who depicted Woods and other golf legends, holding that the transformative nature of the work exempted it from right of publicity liability under the First Amendment. In contrast, in Parks v. LaFace, the U.S. Court of Appeals for the Sixth Circuit held that the Outkast song “Rosa Parks” violated the civil rights icon’s right of publicity because it was not sufficiently transformative. The court explained that the use of a name or likeness is not transformative for right of publicity purposes when it “is used solely to attract attention to a work that is not related to the identified person.” Based on these cases, it is not clear that a court would be willing to abridge free speech by holding that fictional writing about a real person constitutes a violation of that person’s right of publicity.
Arguments for the legality of fan fiction
In 2007, a group of fans who engage in creating fan works and are part of the larger fan community founded the Organization for Transformative WorksOrganization for Transformative Works
The Organization For Transformative Works is a non-profit organization that advocates for the transformative and legitimate nature of fan labor activities, including fan fiction, fan vids, anime music videos, and real person fiction...
(OTW). OTW has since advocated the legitimacy of fan fiction due its transformative
Transformation (law)
In United States copyright law, transformation is a possible justification that use of a copyrighted work may qualify as fair use, i.e., that a certain use of a work does not infringe its holder's copyright due to the public interest in the usage...
nature. OTW's position is that fan fiction and other fan labor
Fan labor
Fan labor is a term used to refer to the productive creative activities engaged in by fans, primarily those of various media properties or musical groups...
products constitute copyright fair use under 17 U.S.C. § 107 because they add "new meaning and messages to the original" work, and thus fall under the exemption to U.S. copyright law the Supreme Court carved out in Campbell v. Acuff-Rose, and which was later revisited and followed in Suntrust Bank v. Houghton Mifflin Co. OTW's vision includes seeing "all fannish works recognized as legal and transformative and ... accepted as a legitimate creative activity." Toward this end OTW works to educate fan writers and published writers about copyright laws, particularly the open legal questions around fan fiction and other fan works.
OTW also maintains its own fan fiction archive, the Archive of Our Own, commonly called AO3. All fan fiction on the site is recognized as non-profit derivative works.
While OTW provides a centralized netspace for fans to acquire knowledge and aid regarding their own creative works, and a voice for the fan community, it does not represent all fans. Fans have many different views on the legalities of fan works, from the pure question of whether these works are transformative, to differences in how fans feel fan works should be disseminated.
Fan writers who argue that their work is legal through the fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
doctrine use specific fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
arguments in the context of fan works, such as:
- Fan works do not deprive the owner of the source material of income
- Fan works may work as free advertisement and promotion of the original source material
- Fan works are usually non-profit.
- Fan works do not copy, or attempt to substitute for, the original work.
OTW is also not the only organization to support the idea that fan works are transformative. In Salinger v. Colting, the New York Times and other major media conglomerates filed an amicus brief supporting Colting's book, as did the Library Copyright Alliance.
Copyright holders' attitude towards fan fiction
While many authors, (e.g. Neil GaimanNeil Gaiman
Neil Richard Gaiman born 10 November 1960)is an English author of short fiction, novels, comic books, graphic novels, audio theatre and films. His notable works include the comic book series The Sandman and novels Stardust, American Gods, Coraline, and The Graveyard Book...
, J.K. Rowling, D.J. MacHale
D.J. MacHale
Donald James MacHale , known popularly under the pen name D. J. MacHale, is a writer, director, and executive producer. He has been affiliated with shows such as Are You Afraid of the Dark?, Flight 29 Down and Seasonal Differences...
, Stephanie Meyer, Terry Pratchett
Terry Pratchett
Sir Terence David John "Terry" Pratchett, OBE is an English novelist, known for his frequently comical work in the fantasy genre. He is best known for his popular and long-running Discworld series of comic fantasy novels...
) do not take issue with authors of derivative works, a number of authors do. They may request that fan fiction archival sites remove any pieces of fan fiction based on their original works. Many also request that bans be put in place to prevent fan works being posted without their direct permission and ability to control the works.
To date, no fan fiction archive has failed to comply with an author’s request to remove works, and many archives feature a full list of authors whose work cannot be the source of a fan fiction on their site. Generally, authors who do not want fan works being written without their direct permission and/or the ability to control it, request that major fan fiction archives remove and ban such works.
To aid fan fiction authors so that they know which fandoms are prohibited on the site the fan fiction site MediaMiner has compiled a list of authors whose works are banned from the site. As they state, “This is a right they [the copyright owner] have as an author or owner of the work. No copyright owner has to allow fan fiction or even tolerate it.”
Most major studios and production companies tolerate fan fiction, and some even encourage it to a certain extent. Paramount Pictures
Paramount Pictures
Paramount Pictures Corporation is an American film production and distribution company, located at 5555 Melrose Avenue in Hollywood. Founded in 1912 and currently owned by media conglomerate Viacom, it is America's oldest existing film studio; it is also the last major film studio still...
, for example, allowed the production of Star Trek: The New Voyages
Star Trek: The New Voyages
Star Trek: The New Voyages was a anthology of short fiction based on Star Trek edited by Sondra Marshak and Myrna Culbreath featuring work by fan fiction authors...
and Star Trek: The New Voyages 2
Star Trek: The New Voyages 2
Star Trek: The New Voyages 2 edited by Sondra Marshak and Myrna Culbreath was the 1978 followup to the 1976 anthology Star Trek: The New Voyages.-Contents:*'"Surprise'" by Nichelle Nichols, Sondra Marshak and Myrna Culbreath...
from Bantam Books
Bantam Books
Bantam Books is an American publishing house owned entirely by Random House, the German media corporation subsidiary of Bertelsmann; it is an imprint of the Random House Publishing Group. It was formed in 1945 by Walter B. Pitkin, Jr., Sidney B. Kramer, and Ian and Betty Ballantine...
, fan fiction anthologies which followed Bantam's Star Trek Lives! by reprinting stories from various fanzines; as well as Star Trek: Strange New Worlds
Star Trek: Strange New Worlds
Star Trek: Strange New Worlds was an annual collection of short stories set in the Star Trek universe, written by amateur writers chosen through an open submissions process. The first volume was published in 1998, with the tenth and final volume published in 2007...
, a series of ten anthologies from Pocket Books
Pocket Books
Pocket Books is a division of Simon & Schuster that primarily publishes paperback books.- History :Pocket produced the first mass-market, pocket-sized paperback books in America in early 1939 and revolutionized the publishing industry...
in which the short stories were selected through an open submissions process geared toward novice writers.
Due to the ongoing nature of television production, some television producers have implemented similar constraints, one example being Babylon 5
Babylon 5
Babylon 5 is an American science fiction television series created, produced and largely written by J. Michael Straczynski. The show centers on a space station named Babylon 5: a focal point for politics, diplomacy, and conflict during the years 2257–2262...
creator J. Michael Straczynski
J. Michael Straczynski
Joseph Michael Straczynski , known professionally as J. Michael Straczynski and informally as Joe Straczynski or JMS, is an American writer and television producer. He works in films, television series, novels, short stories, comic books, and radio dramas. He is a playwright, a former journalist,...
. His demand that Babylon 5 fan fiction be clearly labeled or kept off the Internet confined most of the Babylon 5 fan fiction community to mailing lists during the show's initial run. J. K. Rowling
J. K. Rowling
Joanne "Jo" Rowling, OBE , better known as J. K. Rowling, is the British author of the Harry Potter fantasy series...
has also complained about sexually explicit Harry Potter
Harry Potter
Harry Potter is a series of seven fantasy novels written by the British author J. K. Rowling. The books chronicle the adventures of the adolescent wizard Harry Potter and his best friends Ron Weasley and Hermione Granger, all of whom are students at Hogwarts School of Witchcraft and Wizardry...
fan fiction. However, lawyers on behalf of Ms. Rowling specifically noted that she has "no complaint about innocent fan fiction written by genuine Harry Potter fans."
Many writers and producers state that they do not read fan fiction, citing a fear of being accused of stealing a fan's ideas, but encourage its creation nonetheless. When Buffy the Vampire Slayer went off the air, for instance, creator Joss Whedon
Joss Whedon
Joseph Hill "Joss" Whedon is an American screenwriter, executive producer, director, comic book writer, occasional composer and actor, founder of Mutant Enemy Productions and co-creator of Bellwether Pictures...
encouraged fans to read fan fiction during the show's timeslot.
Noteworthy in regard to the acceptance of fan fiction is Eric Flint
Eric Flint
Eric Flint is an American author, editor, and e-publisher. The majority of his main works are alternate history science fiction, but he also writes humorous fantasy adventures.- Career :...
, who has set up a formal site for the submission of fan fiction into his canon in the 1632 series
1632 series
The 1632 series, also known as the 1632-verse or Ring of Fire series, is an alternate history book series and sub-series created, primarily co-written, and coordinated by Eric Flint and published by Baen Books...
at Baen's Bar and has to date published twenty four issues of The Grantville Gazette
The Grantville Gazette
The Grantville Gazette is the first of a series of professionally selected and edited paid fan fiction anthologies set within the 1632 series inspired by Eric Flint's novel 1632...
in electronic form and five book form. These feature fan fiction and fan non-fiction alongside his original work (paying first semi-pro, and now SFWA
Science Fiction and Fantasy Writers of America
Science Fiction and Fantasy Writers of America, or SFWA is a nonprofit association of professional science fiction and fantasy writers. It was founded in 1965 by Damon Knight under the name Science Fiction Writers of America, Inc. and it retains the acronym SFWA after a very brief use of the SFFWA...
rates). Flint (a former labor organizer and socialist) contends that this collective work allows the expansion of his alternate history universe into something approaching the complexity of reality. It can be argued, however, that since work published in the Gazette is paid (at professional rates) and cleared by Flint for canonicity, that this is not actually "fan fiction" in the commonly-understood sense of the term.
Also noteworthy is the series of Darkover
Darkover
Darkover is the focus of the Darkover series of science fiction novels and short stories by Marion Zimmer Bradley and others published since 1958. According to the novels, Darkover is the only human-habitable of seven planets orbiting a fictional red giant star called Cottman...
anthologies published by Marion Zimmer Bradley
Marion Zimmer Bradley
Marion Eleanor Zimmer Bradley was an American author of fantasy novels such as The Mists of Avalon and the Darkover series. Many critics have noted a feminist perspective in her writing. Her first child, David R...
, beginning in 1980, consisting largely of fan fiction extended into her canon. These books led to a much talked about (and exaggerated) controversy. MZB read something in a fan story that meshed well with a Darkover book she was currently writing, so she wrote the fan author, Jean Lamb, offering her "a sum and a dedication for all rights to the text." In a 1991 Usenet post, Jean continued, "I attempted at that point to _very politely_ negotiate a better deal. I was told that I had better take what I was offered, that much better authors than I had not been paid as much (we're talking a few hundred dollars here) and had gotten the same sort of 'credit' (this was in the summer of 1992)...a few
months later I received a letter from Ms. Bradley's lawyer threatening me with
a suit." The rumor, however, was that MZB had a skirmish with a fan who claimed authorship of a book identical to one Bradley had published and accused Bradley of "stealing" the idea, and the resultant lawsuit cost Bradley a book. Either way, her attorney advised her against reading fan fiction of her work. Versions of this incident are credited by many to have led to a "zero tolerance" policy on the part of a number of other professional authors, including Andre Norton
Andre Norton
Andre Alice Norton, née Alice Mary Norton was an American science fiction and fantasy author under the noms de plume Andre Norton, Andrew North and Allen Weston...
, and David Weber
David Weber
David Mark Weber is an American science fiction and fantasy author. He was born in Cleveland, Ohio. Weber and his wife Sharon live in Greenville, South Carolina with their three children and "a passel of dogs"....
. Mercedes Lackey
Mercedes Lackey
Mercedes "Misty" Lackey is a best-selling American author of fantasy novels. Many of her novels and trilogies are interlinked and set in the world of Velgarth, mostly in and around the country of Valdemar...
used to strictly disallow any posting of fan fiction in her universes on the Internet, though she did allow stories to be published in approved fanzines with signed releases for each story. Recently, she has changed her stance to allow non profit fan fiction of her works so long as the fan fiction is licensed as a derivative work and uses a Creative Commons license
Creative Commons License
Creative Commons licenses are several copyright licenses that allow the distribution of copyrighted works. The licenses differ by several combinations that condition the terms of distribution. They were initially released on December 16, 2002 by Creative Commons, a U.S...
.
Anne Rice
Anne Rice
Anne Rice is a best-selling Southern American author of metaphysical gothic fiction, Christian literature and erotica from New Orleans, Louisiana. Her books have sold nearly 100 million copies, making her one of the most widely read authors in modern history...
has consistently, and aggressively, objected to fan fiction based on any of her characters (mostly those from her famous Interview with the Vampire
Interview with the Vampire
Interview with the Vampire is a vampire novel by Anne Rice written in 1973 and published in 1976. It was the first novel to feature the enigmatic vampire Lestat, and was followed by several sequels, collectively known as The Vampire Chronicles...
and its sequels in The Vampire Chronicles
The Vampire Chronicles
The Vampire Chronicles is a series of novels by Anne Rice that revolves around the fictional character Lestat de Lioncourt, a French nobleman turned into a vampire in the 18th century....
) or other elements in her books, and she formally requested that FanFiction.Net remove stories featuring her characters. Similar efforts have also been taken by Annette Curtis Klause
Annette Curtis Klause
Annette Curtis Klause is an American author and librarian, specializing in young adult fiction. Annette is currently a children's materials selector for Montgomery County Public Libraries in Montgomery County, Maryland. Born in Bristol, England, she now lives in Hyattsville, Maryland with her...
, Robin Hobb
Robin Hobb
Robin Hobb is the second pen name of novelist Margaret Astrid Lindholm Ogden who produces primarily fantasy fiction, although she has published some science fiction....
, George R.R. Martin, and Robin McKinley
Robin McKinley
Robin McKinley is a distinguished author of fantasy and children's books who has written sixteen books to date. Her latest book Pegasus was published in 2010...
among others. Many authors do this, they state, in order to protect their copyright and especially to prevent any dilution, saturation, or distortion of the universes and people portrayed in their works.
One curious case is that of Larry Niven
Larry Niven
Laurence van Cott Niven / ˈlæri ˈnɪvən/ is an American science fiction author. His best-known work is Ringworld , which received Hugo, Locus, Ditmar, and Nebula awards. His work is primarily hard science fiction, using big science concepts and theoretical physics...
's Known Space
Known Space
Known Space is the fictional setting of some dozen science fiction novels and several collections of short stories written by author Larry Niven. It has also in part been used as a shared universe in the Man-Kzin Wars spin-off anthologies sub-series....
universe. In an author's note in The Ringworld Engineers
The Ringworld Engineers
The Ringworld Engineers is a 1980 science fiction novel by Larry Niven. It is the first sequel to Niven's award-winning Ringworld and was nominated for both the Hugo and Locus Awards in 1981.-Origin:...
, Niven stated that he was finished writing stories in this universe, and that "[i]f you want more Known Space stories, you'll have to write them yourself." Internet writer Elf Sternberg
Elf Sternberg
Elf Mathieu Sternberg, born May 7, 1966, is the former keeper of the alt.sex FAQ. He is also the author of many erotic stories and articles on sexuality and sexual practices, and is considered one of the most notable and prolific online erotica authors....
took him up on that offer, penning a parody
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
in which members of Niven's hyper-masculine Kzin
Kzin
The Kzinti are a fictional, very warlike and bloodthirsty race of cat-like aliens in Larry Niven's Known Space series....
species engage in gay sex and BDSM
BDSM
BDSM is an erotic preference and a form of sexual expression involving the consensual use of restraint, intense sensory stimulation, and fantasy power role-play. The compound acronym BDSM is derived from the terms bondage and discipline , dominance and submission , and sadism and masochism...
. Niven responded by denouncing Sternberg's story in the introduction to Man-Kzin Wars IV (Baen Books
Baen Books
Baen Books is an American publishing company established in 1983 by long time science fiction publisher and editor Jim Baen. It is a science fiction and fantasy publishing house that emphasizes space opera, hard science fiction, military science fiction, and fantasy...
, 1991) and issuing a cease-and-desist for copyright violation. To date, Sternberg holds that the story is constitutionally protected parody, while Niven maintains that it is a copyright violation that lies outside of protected speech, though he has not legally pursued the matter further.
Copyright holders may have been changing their policies towards fan fiction.
Some companies like CBS
CBS
CBS Broadcasting Inc. is a major US commercial broadcasting television network, which started as a radio network. The name is derived from the initials of the network's former name, Columbia Broadcasting System. The network is sometimes referred to as the "Eye Network" in reference to the shape of...
and LucasFilms Ltd.
Lucasfilm
Lucasfilm Limited is an American film production company founded by George Lucas in 1971, based in San Francisco, California. Lucas is the company's current chairman and CEO, and Micheline Chau is the president and COO....
, which had been historically hostile to fan fiction, changed parts of their model in order to be more fan friendly. This included trying to encourage fan works and integrating them into official sites.
When not hosting the fan fiction
Fan fiction
Fan fiction is a broadly-defined term for fan labor regarding stories about characters or settings written by fans of the original work, rather than by the original creator...
or being openly tolerant of existing fan sites, companies created partnerships with other companies like FanLib to aid them in the task. The reaction from fans to such alliances and interference in their activities has been mixed, with some people thinking that it violates the basic rules of fan fiction communities. Those fans seem to be increasingly in the minority, as acceptance of such interference is tolerated because of the positives that can result.
Many tie-in novels and novelization
Novelization
A novelization is a novel that is written based on some other media story form rather than as an original work.Novelizations of films usually add background material not found in the original work to flesh out the story, because novels are generally longer than screenplays...
s have the ambiguous status of being officially sanctioned, for-profit fan fiction - though once again, this largely depends on one's definition of fan fiction. Series from Star Trek
Star Trek
Star Trek is an American science fiction entertainment franchise created by Gene Roddenberry. The core of Star Trek is its six television series: The Original Series, The Animated Series, The Next Generation, Deep Space Nine, Voyager, and Enterprise...
to Charmed
Charmed
Charmed is an American television series that originally aired from October 7, 1998, until May 21, 2006, on the now defunct The WB Television Network. The series was created in 1998 by writer Constance M...
have numerous books that exist outside the officially canonical world of the series, much like fan fiction, but which have the official sanction of the show's creators or owners. The refusal by Paramount Pictures
Paramount Pictures
Paramount Pictures Corporation is an American film production and distribution company, located at 5555 Melrose Avenue in Hollywood. Founded in 1912 and currently owned by media conglomerate Viacom, it is America's oldest existing film studio; it is also the last major film studio still...
(owners of the Trek franchise) to allow printed adventures to be considered part of the canon has led many fans to consider the books to be a form of fan fiction despite their legal and licensed status, and a similar attitude prevails amongst fans of Buffy, where the series' creator has explicitly declared that the novels and novelizations based on the series are not canon
Canon (fiction)
In the context of a work of fiction, the term canon denotes the material accepted as "official" in a fictional universe's fan base. It is often contrasted with, or used as the basis for, works of fan fiction, which are not considered canonical...
material.
The attitude of copyright holders toward incorporating fan fiction into the canon varies. It is generally the case that the writers hired for a television series or movie are under strict orders not to read fan fiction out of fear that doing so will cause the copyright holder to be sued later for infringement. However, some copyright holders, such as the BBC
BBC
The British Broadcasting Corporation is a British public service broadcaster. Its headquarters is at Broadcasting House in the City of Westminster, London. It is the largest broadcaster in the world, with about 23,000 staff...
in the case of Doctor Who
Doctor Who
Doctor Who is a British science fiction television programme produced by the BBC. The programme depicts the adventures of a time-travelling humanoid alien known as the Doctor who explores the universe in a sentient time machine called the TARDIS that flies through time and space, whose exterior...
, have mechanisms to allow for unsolicited submissions of stories into the official canon, and it is also the case that the writers of canon stories have sometimes been recruited from the ranks of fan fiction writers. In the case of the Doctor Who novels published by Virgin Books
Virgin Books
Virgin Books is a United Kingdom book publisher 90% owned by the publishing group Random House, and 10% owned by Virgin Enterprises, the company originally set up by Richard Branson as a record company.-History:...
, once the BBC reclaimed the license to publish novels regarding the Doctor, many readers immediately categorized all the Virgin New Adventures
Virgin New Adventures
The Virgin New Adventures were a series of novels from Virgin Publishing based on the British science-fiction television series Doctor Who...
as non-canonical fan fiction.
Finally, there exists a sect of science fiction authors who have admitted to writing fan fiction before they became published, or in other ways have outed themselves as pro-fan fiction. A small sample includes: Naomi Novik
Naomi Novik
Naomi Novik is an American novelist. She is a first-generation American; her father is of Lithuanian Jewish ancestry, and her mother is an ethnic Pole. She studied English Literature at Brown University, and holds a Master's degree in Computer Science from Columbia University...
has mentioned writing fanfic for television series and movies, and says she'd be thrilled to know that fans were writing fanfic for her series (though she also said she'd be careful not to read any of it); Anne McCaffrey
Anne McCaffrey
Anne Inez McCaffrey was an American-born Irish writer, best known for her Dragonriders of Pern series. Over the course of her 46 year career she won a Hugo Award and a Nebula Award...
allows fanfic, but has a page of rules she expects her fans to follow; Anne Harris has said, "I live for the day my characters get slashed"; J. K. Rowling has mentioned fan fiction approvingly, and her lawyers have confirmed she's okay with fanfics. In 2008, Steven Brust
Steven Brust
Steven Karl Zoltán Brust is an American fantasy and science fiction author of Hungarian descent. He was a member of the writers' group The Scribblies, which included Emma Bull, Pamela Dean, Will Shetterly, Nate Bucklin, Kara Dalkey, and Patricia Wrede; he also belongs to the Pre-Joycean...
published a Firefly novel with a CC copyright notice. A larger list, with citations, can be found on the Fanlore page Professional Author Fanfic Policies. Fanlore is a fandom-focused wiki and is an offshoot of the Organization for Transformative Works.
Fan fiction outside the United States
In Great Britain, DiscworldDiscworld
Discworld is a comic fantasy book series by English author Sir Terry Pratchett, set on the Discworld, a flat world balanced on the backs of four elephants which, in turn, stand on the back of a giant turtle, Great A'Tuin. The books frequently parody, or at least take inspiration from, J. R. R....
author Terry Pratchett
Terry Pratchett
Sir Terence David John "Terry" Pratchett, OBE is an English novelist, known for his frequently comical work in the fantasy genre. He is best known for his popular and long-running Discworld series of comic fantasy novels...
, while emphasizing that he is careful not to read fanfics, has voiced the opinion that "everything works if people are sensible" and doesn't mind "so long as people don't put it where I can trip over it". However, Pratchett emphasizes that the Discworld and all its characters are ultimately his intellectual property, and stresses that "it is not a franchise".
Neil Gaiman another English author who has written such works as Stardust, Coraline, and American Gods, says he does not mind fan fiction as long as the author notes that the characters are the intellectual property of another and so long as the fiction is not for profit.
In countries such as Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
, where copyright laws are more lenient or less well enforced, it is not uncommon to see fan fiction based on the work of popular authors published in book form. Sergey Lukyanenko
Sergey Lukyanenko
Sergei Vasilievich Lukyanenko is a science fiction and fantasy author, writing in Russian, and is arguably the most popular contemporary Russian sci-fi writer...
, a popular science fiction author, went as far as to incorporate some fan fiction based on his stories into official canon (with permission of the writers of the said fan fiction). Perhaps the most famous case, however, is Dmitri Yemets
Dmitri Yemets
Dmitri Aleksandrovich Yemets is a Russian author of children's and young adult fantasy literature.He is most famous for his Tanya Grotter series and spin-offs, which he calls "a parody" or, alternatively, as "a sort of Russian answer" to Harry Potter. He has been repeatedly threatened, by J.K...
' Tanya Grotter
Tanya Grotter
Tanya Grotter is the female protagonist of a Russian fantasy novel series by Dmitri Yemets. Tanya Grotter is an orphan with intentional resemblances to J. K. Rowling's Harry Potter...
book series, a "cultural response" to Harry Potter
Harry Potter
Harry Potter is a series of seven fantasy novels written by the British author J. K. Rowling. The books chronicle the adventures of the adolescent wizard Harry Potter and his best friends Ron Weasley and Hermione Granger, all of whom are students at Hogwarts School of Witchcraft and Wizardry...
, which provoked a lawsuit from J. K. Rowling's estate.
In Japan, the dōjinshi
Dojinshi
is the Japanese term for self-published works, usually magazines, manga or novels. Dōjinshi are often the work of amateurs, though some professional artists participate as a way to publish material outside the regular industry. The term dōjinshi is derived from and . Dōjinshi are part of a wider...
subculture is similar to a combination of the United States subcultures surrounding underground comics, science fiction fanzines, and fan fiction. Many dōjinshi works are manga
Manga
Manga is the Japanese word for "comics" and consists of comics and print cartoons . In the West, the term "manga" has been appropriated to refer specifically to comics created in Japan, or by Japanese authors, in the Japanese language and conforming to the style developed in Japan in the late 19th...
-format fan fiction, which in Japan is, while not strictly legal, generally tolerated and usually encouraged, being looked upon as a form of free advertising or a breeding ground for new talent, most famously the group CLAMP
Clamp (manga artists)
, is an all-female Japanese manga artist group that formed in the mid 1980s. Many of the group's manga series are often adapted into anime after release. It consists of their leader , who provides much of the storyline and screenplay for all their works and adaptations of those works respectively ,...
and Love Hina
Love Hina
is a Japanese manga series written and illustrated by Ken Akamatsu. It was originally serialized in Weekly Shōnen Magazine by Kodansha from October 21, 1998 to October 31, 2001 and was published in 14 tankōbon volumes by Kodansha. The series tells the story of Keitaro Urashima and his attempts to...
author Ken Akamatsu
Ken Akamatsu
is a Japanese manga artist from Tokyo.Sailor Moon was his introduction to anime and manga fandom.In his teens, Akamatsu applied himself to Film Study . Eventually, he became famous as an illustrator featured in Comiket . He used the pen name...
.
External links
- Katyal, Sonia. "Performance, Property, and the Slashing of Gender in Fan Fiction" Journal of Gender, Social Policy, and the Law, Vol. 14, p. 463, 2006 (Fordham Law Legal Studies Research Paper No. 103)
- Petit, Charles E. "Fan Fiction" Scrivener's Error: Warped Weft Jan.-May 2005
- Schwabach, Aaron. “The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright.” University of Pittsburgh Law Review, Vol. 70, p. 387, 2009
- Tushnet, Rebecca. "Legal Fictions: Copyright, Fan Fiction, and a New Common Law." Loyola of Los Angeles Entertainment Law Journal, 1997 (17 Loy. L.A. Ent. L.J. 651
- ———. 2004. Copy this essay. Yale Law Journal 114:535–90.