The Truth About Fanfiction

    From reviewing some of the questions our copyrighting division has received in recent months, it’s clear that the legality of derivative works, namely fanfiction, is causing some confusion. We’ve taken a few of these questions and answers and fleshed them out below in hopes to clarify some of these fuzzier issues. We hope it helps.

    Is fanfiction legal...or copyright infringement?

    Is fanfiction legal…or copyright infringement?

    Q: Are there any legal issues involved in publishing my fanfiction?

    A: With fan sites for everything from Spinal Tap to Star Trek to Justin Bieber, the Internet is a virtual [pun intended] haven for fanfiction, typically circulated among like-minded individuals as a part of the complete fan experience. But is fanfiction—the unlicensed creation of a reader’s own fantasy, using in their story the proprietary characters or universe of an author’s copyrighted material—legal? To answer this, there are two different issues that need to be clarified.

    1) The Rights of the Copyright Holder

    Everyone understands that copying someone’s work and passing it off as your own is copyright infringement—but what about some of the other rights copyright holders have?

    According to the US Copyright Office’s circular on Copyright Basics, the owner of a copyright has the following exclusive rights:

    • To reproduce the work;
    • To prepare derivative works based upon the work;
    • To distribute copies of the work to the public; and
    • To perform or display the work publicly.

    The first point is more or less understood. (However, notice that the copyright holder has exclusive rights to reproduce his or her work; if you reproduce or display someone’s work without asking for their permission, it’s still copyright infringement, even if you credit the copyright holder!)

    Let’s take a closer look at the second point.

    2) Derivative Works

    Derivative works must be authorized by the copyright owner.

    Derivative works must be authorized by the copyright owner.

    A derivative work, also according to the US Copyright Office’s circular on Derivative Works, is defined as “a work based on or derived from one or more already existing works.” The key issue here is that a derivative work doesn’t have to be the same type of work at all.

    For an example, consider the Harry Potter books. The movies, which were based on those books, would be considered derivative works—they could not have been made if J.K. Rowling had not agreed to them.

    You can probably see where this is going: fanfiction, based on the definitions above, would be considered a derivative work, and the copyright holder has exclusive rights to any and all derivative works. And regardless of whether the author of the fanfiction gives the original author due credit or provides their work for free—if the original copyright holder didn’t give permission, distributing fanfiction to the public is copyright infringement.

    It looks like you’ll have to keep Spock and Nurse Chapel’s steamy love affair to yourself. Bummer.

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      6 comments on “The Truth About Fanfiction
      1. ashley cain says:

        Having read “The Truth about Fan-fiction,” I still have some questions…..
        I’m wanting to get in contact with a certain company, and show them an idea i have. But, I have no idea how to contact them; as they are halfway across the World from where I stand.
        I notice that it is growing harder and harder for people now to contact certain others:So who is it that stands in my way compared to “in power” figures?
        I also want to have the rights of saying “I wrote that,” but I also want to get a share in the profits made from what I wrote.
        :How do i do this?

      2. Sarah says:

        Thanks for the comment, Ashley!

        If you go to the copyright office’s website, http://www.copyright.gov, you should be able to search for the record of what you’re looking for. Most applicants provide a name and address for people to contact with these request. Or, barring that, try going directly to the company’s website and finding a “contact us” link, or sending them an email.

        Make sure you have some sort of contract addressing rights and royalties, signed by both of you, if the project goes forward. Good luck!

      3. Maggie says:

        I have a question regarding the legality of “derivative work”. There is an obvious “gray area” in this law. There are a great deal of books that are based on the works of authors, even if they aren’t done directly the characters are still there. For example, there are a great deal of Sherlock Holmes books, Count Dracula books, ect. How is it that these authors, not all of which got the expressed consent from the original author and still not be guilty of copyright infringement.

      4. Sarah says:

        Great question, Maggie!

        In fact, most of Sir Arthur Conan Doyle’s Sherlock books were written so long ago (later 1800s to early 1900s) that the works are now in the public domain — if you have a Kindle, you’ll notice you’re able to download most of his works for free because of this! Bram Stoker, Mary Shelley, and many others whose older works are now a part of our collective history have similar situations — their works are no longer protected and are now in the public domain. You can learn a little bit more about public domain and copyright expiration in our previous blog post, “Copyright Registation: When Does It Expire?

        Thanks for reading!

      5. I blog frequently and I truly appreciate your content. This great article has really peaked my interest. I am going to bookmark your site and keep checking for new information about once per week. I subscribed to your Feed too.

      6. When someone writes an piece of writing he/she maintains the
        idea of a user in his/her mind that how a user can understand it.
        Thus that’s why this article is outstdanding. Thanks!

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