Copyright Myths from the World of Fan Fiction

If you’ve never experienced the uniquely creative and often surreal world of Internet fan fiction, then you’ve missed out on one of the most creative offshoots of the online revolution. Fan fiction, for the uninitiated, is just what it sounds like: works of fiction written by fans of the worlds, characters, and plot lines created by other authors.

There are millions of works of fan fiction available for free on the Internet – and some fan fiction stories have been read by millions of readers. There is fan fiction out there set in the world of Pride and Prejudice, Sherlock Holmes, Harry Potter, Twilight, The Lord of the RingsSookie Sackhouse (True Blood), Harry Dresden and nearly every other popular book series, movie, or TV show you can think of.  To find free stories based on your favorite characters, just search for the name of your favorite series or book and add the words “fan fiction” to the end.

Some of it is so good you’d gladly pay for it.  My grandson loves G. Norman Lippert’s amazing James Potter series and I like Melinda Leo’s The Seventh Horcrux far more than the final Harry Potter book.

Of course, some of it is so bad you won’t make it more than a few paragraphs in before giving up in dismay. Note: If you’re just starting to look at fan fiction, look for works marked “Complete”, and pay attention to warnings. The phrase “slash” refers to a sexual relationship between two characters (sometimes the description will simply say “slash”, other times “Harry/Draco” or “Gimli/Legolas” — but a story marked as “slash” includes a sexual relationship between same sex characters). If you see these words in the description, take them seriously: mature, character death, violence, and graphic content. Some fan fiction is safe for pre-teens, while some is explicit. I review stories that our 11-year-old wants to read before he’s allowed to read them, and other parents will probably want to do the same.

Most authors — notably J.K. Rowling and the estate of J.R.R. Tolkien — simply ignore the fan fiction sites so long as the authors do not attempt to sell or profit from their work. They ignore fan fiction because they don’t want to alienate their fans, and because a thriving fan community equals money in the bank for them. Older works like Pride and Prejudice are in the public domain, and many successful fan fiction authors now post “previews” of stories they are selling on on the fanfiction sites.

However, even those who take a tolerant attitude towards fan fiction will go after writers who cross an invisible line. J.K. Rowling, for example, went from giving an award to The Harry Potter Lexicon and writing “This is such a great site…my natural home” to suing the site’s creator for what his publisher believed to be a legal reference work.

Others, such as the estate of Star Trek creator Gene Roddenberry, Star Wars creator George Lucas, 1632 or Ring of Fire series creator Eric Flint, and the Vampire Diaries TV show license their worlds to other writers and have published anthologies that include their own work plus stories by other authors.

Many of today’s top best-selling writers got their start writing spin-off titles for Star Trek or Star Wars. New York Times best-selling author Alan Dean Foster wrote the very first Star Wars novel Splinter of the Mind’s Eye as well as a script for what became Star Trek II, Meg Cabot (The Princess Diaries and the Airhead series) got her start with Star Trek fan fiction, and the list goes on and on with names like Lois McMaster Bujold, John Scalzi, and Orson Scott Card among those whose first published works were fan fiction.

The biggest fan fiction “success story”, however, is a writer called Snowqueen’s Icedragon.  Her story Master of the Universe attracted legions of fans a few years ago with a shocking (and explicit) twist on Twilight’s vampire love story.  The erotic story was so popular that the author decided to rename the characters in her fan fiction story, edit out the vampire references she’d borrowed from Stephanie Meyers, and publish her novel commercially.

So Bella and Edward became Anastasia Steel and Christian Grey, and Snowqueen’s Icedragon became E.L. James, and 50 Shades of Grey made publishing history. (By the way, it seems a bit surprising that James and her publishers seem to be actively pursuing writers who attempt to publish works that are “derivative” of 50 Shades of Grey.)

Screen Capture of the Masters of the Universe Twilight fan fiction story before it was removed by E.L. James.

Screen Capture of the Masters of the Universe Twilight fan fiction story before E.L. James took it down.

Fan fiction is a great way for beginners to learn the ropes of publishing and that includes the legal rules and restrictions that apply to all writers, whether they publish on fan fiction sites, self-publish an eBook sold on Amazon, or sell their work to a commercial publisher.

There are formal guidelines for writers who choose to publish commercial Star Trek stories, and the guidelines are strictly enforced. Star Trek writers learn quickly that some topics are taboo and the rules for using the characters require that manuscripts be submitted through an authorized publisher and survive an editorial review process.

The major fan fiction sites have their own rules which they enforce. Unfortunately, some of those sites perpetuate copyright myths through their own rules. The sites are almost all staffed by volunteers (many of then young teens), and there is no consistent editing or review process. This is why fan fiction quality varies wildly, and why some unfortunate myths have grown up within the fan fiction forums. Here are the top three legal myths out there that get fan fiction writers into trouble.

Myth #1: Disclaimers Protect You

Go to any fan fiction site, and you’ll see disclaimers at the top of nearly every story. I copied these three from a Harry Potter fan fiction site.

  • Disclaimer: Everything belongs where it should, with the amazing JK Rowling.
  • Disclaimer: I do not own any part of the Harry Potter universe and no money is being made from this story.
  • Disclaimer: All JKR’s, not mine.

It’s not a bad idea to publish a disclaimer that says that you have no intention of committing copyright infringement. Such a disclaimer might help to mitigate any damages — especially if you’re a minor under 15 who might reasonably be expected not to know the law.  But a disclaimer offers zero protection from a DMCA takedown notice or lawsuit.

Everybody involved in fan fiction seems to be convinced that that the two rules for staying out of trouble are publishing a disclaimer and not charging for your work.  This couldn’t be farther from the truth.  No author is required to allow others to publish stories set in the fictional world they created, or use characters they created.

There is no exception in copyright law for fan fiction, disclaimer or not. No exception for kids. No exception for writers who don’t get paid. The fan fiction phenomena exists because the rights holders allow it to exist, and any rights holder can change his or her mind at any time and force the removal of infringing content. (There is a growing acceptance that “transformative works” based on a work under copyright are acceptable as long as they are non-commercial. For details on the specific tests a transformative work must pass, click here.)

A second common belief about disclaimers is that they somehow allow you to use anything you like from the original author’s work. Dozens of fan fiction writers have each published 6 or 7 novels that retell the Harry Potter stories (lifting whole chapters of Rowling’s novels in the process) with plot twists such as Harry’s parents surviving Voldemort’s original attack, Harry being short for “Harriett”, Snape adopting Harry, Harry having a new best friend so that the “Golden Trio” becomes a quartet, or Sirius surviving and becoming Harry’s guardian.

Each of these authors, I am sure, believes that they have the right to use the storylines, characters, situations, and (in many cases) thousands of pages of dialogue and description because of the disclaimer and the fact that they aren’t being paid for their work. They also seem to believe that the changes they have made (new characters, an alternate ending, plot twists) turns the story into a brand new tale that they own. Both beliefs are false unless the work meets the criteria for a transformative work — and even then, their ownership is limited to the parts they create .

The truth is that disclaimer or not, the owner of the original copyright can have such content removed or sue for damages. The disclaimer states that the fan fiction writer does not intend to violate the law. But saying that you didn’t intend to break the law doesn’t give you the right to break it.

It isn’t just authors who can force the removal of fan fiction titles, or sue fan fiction writers of course. Many fan fiction writers quote popular music, movies, or TV shows, and use photos taken from movies or other sources as part of the “banners” or icons used with their fan fiction stories. Those secondary rights holders can take action against the fan fiction writer, too, even if the original author does not.

A fan fiction writer is most likely to receive a DMCA takedown notice over a copyrighted image. I can’t say this frequently enough: using graphics, photographs, screen captured images from movies or video games, and images you find in a Google or Bing search and copy using your computer is illegal. If you didn’t pay for it, or get specific permission to use it through a Creative Commons license or written permission from the copyright holder, you can’t use it on a website or in any printed work. For more on using images legally, click here.

Myth #2: Fan Fiction Can Be “Original”

You’ll often see disclaimers on fan fiction titles that read something like this: “I don’t own anything except my original characters and ideas” or “Anything you recognize belongs to the original author; I own everything else.”

While it is true that the original characters created by any writer belong to them, a character who could not exist outside the framework covered by the original copyright can’t belong to anyone except the original creator. For example, if I create an original character who happens to be one of the blue-skinned Na’vi from Avatar then that character couldn’t exist without drawing on the copyrights held by James Cameron.

If Cameron or his film company went to court asking for an injunction against me, they’d get it in a heartbeat. No matter what I call that character, or how unusual and creative my story is, I didn’t come up with the idea of 10′ tall blue striped beings with long sweeping tails,  James Cameron did. So I can’t write about a Na’vi without infringing on his copyright.

I can write about a wizard or a vampire, but if my wizard attends Hogwarts or my vampire sparkles in the sun, then I may be infringing on copyrights owned by others.

Want to know if you own a character you created for a fan fiction story? Here’s the test. Can you remove the character and the plot from the original “world” and put it in a world of your own? If you can, congratulations! You own it so long as you do what E.L. James did and strip away anything you didn’t create. But if your characters rely on another author’s ideas in order for them to exist or function, you don’t own them.

As long as “your” characters and stories are set in a framework that belongs to someone else, your ownership is limited.

There is a significant exception to this rule: stories that are in the public domain because the copyright has run out.  For instance, anyone can write a sequel or spin-off story set in the world of Jane Austen’s Pride and Prejudice.  When they do, they own it, can publish it commercially, and prevent others from violating their copyright.

Myth #3: You Can’t Plagiarize Fan Fiction

A young family friend has published several works of fan fiction set on sites devoted to Harry Potter, Firefly, and The Lord of the Rings. Recently, he was quite upset to find that another young writer had taken a story he had written and created a sequel to it that used many of the characters, plot lines, and unique elements that he had created.

When he sent the site’s administrator a request to have the story taken down because it infringed on his original work, the administrator said, “It’s fan fiction — it isn’t plagiarism, because you don’t own it.” A direct message to the second author was more productive, and resulted in a credit for the original author and a link to his story, along with an apologetic disclaimer.

The fan fiction site was correct when it told the original author that he didn’t hold copyright to his story — and the author was equally correct when he told the second writer that borrowing from his work for a new story was plagiarism. A work need not qualify for copyright in order to qualify for plagiarism protection.

An attorney I know is representing a fan fiction writer who was 14 when she published a novel on one of the Harry Potter fan sites. She’s now a 22-year-old college senior, and found a book in her campus bookstore that she says is a direct rip-off of her work. Because the details aren’t public yet, I am not going to be specific except to say that the fan fiction writer’s lawsuit against a very well known publisher includes these claims:

  • Of the 265,000 words in the paperback book, 198,000 are “exactly or substantially” the same as the “words, phrases, descriptions, conversations, and named characters” in the fan fiction story.
  • 27 of 42 named characters in the commercial book are the same as those in the fan fiction story, and the 15 characters in the fan fiction story whose names are different in the commercial work started out as well-known characters from Harry Potter.
  • The author of the commercial book left a review of the original author’s story on the fan fiction site more than 7 years ago, offering two suggestions about the plot, and the two authors exchanged several emails about the story.

The attorney for the author being sued wrote to the fan fiction writer and attempted to convince her to drop her complaint on the basis that you can’t plagiarize fan fiction, because there is no copyright protection for fan fiction. I can’t predict the future, but I think it’s a sure bet that someone is going to get a surprise if this one makes it to court. It seems that this “author” has published 17 novels in recent years…and my attorney friend thinks that at least 14 of them are lifted almost wholesale from stories that began on fan fiction sites.

I’m hoping that a judge will teach this “author” (and his publisher) that stealing from children is wrong — and stealing from children who were “borrowing” content owned by Warner Brothers, J.K. Rowling, Scholastic, and Bloomsbury is just plain stupid.

Update: February 2014: The judge dismissed the young author’s case with prejudice, saying that any action for copyright infringement would have to be filed by the copyright holder (Rowling and her licensees), not the fan fiction writer. So I guess I was wrong: You can rip off fan fiction authors with impunity. Rather sad, really.

Important Author’s Note:

During the summer of 2014, I was contacted by Fiction Alley co-founder Heidi Tandy, who is also an intellectual property attorney. Ms. Tandy provided some important updated information, and also explained several points from this article in more detail. If you are interested in the legal aspects of fan fiction, please read the related post, A Fresh Look at Copyright & Fan Fiction which includes Ms. Tandy’s updates and corrections.

In March, 2016, Jonathan Bailey of Plagiarism Today allowed this blog to republish his brilliant article How Money and Fame Changed Fanfiction — it’s a must read for anyone seriously interested in the question of copyright, plagiarism, and profitability and fanfiction. Please check these two updated articles out instead of relying solely on this older piece. Thanks!

Disclaimer & author’s note: I am not an attorney. Don’t mistake anything in this blog post for legal advice. Consult a licensed, competent attorney before making any decision relating to your rights or the rights of others. The opinions expressed here are mine, and you shouldn’t rely on my opinions when you make a decision about your copyright or anyone else’s.

About debmcalister

I'm a Dallas-based marketing consultant and writer, who specializes in helping start-up technology companies grow. I write (books, articles, and blogs) about marketing, technology, and social media. This blog is about all of those -- and the funny ways in which they interesect with everyday life. It's also the place where I publish general articles on topics that interest me -- including commentary about the acting and film communities, since I have both a son and grandson who are performers.
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29 Responses to Copyright Myths from the World of Fan Fiction

  1. steve says:

    Quick side question…in terms of fanficiton in cases where it is copyright infringement, does the original author own new elements created in the fanfiction?

    Using an example from the article, if someone wrote a new story about the Na’vi, and it was found to be a violation of copyright, would James Cameron then own the story, and the new elements therein? Could he then turn it into a screenplay of his own, without permission from the person who wrote the illegal fanfiction?

  2. jillyx says:

    Hi Deb, Clarifying question about copyrights for online works—and I’m not really thinking about fanfic but more about novels published solely online, such as through Amazon’s self publication system.

    Several comments above seem to allude to online content not being considered publication and/or that you only have copyright when you register it OR it’s published in a book form. I assume printed book?

    In any case, in perusing the website, it says:

    “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.”

    So if I put an original novel on my website, why wouldn’t that be protected by copyright without registering or professional publication?


    “Do I have to register with your office to be protected?
    “No. In general, registration is voluntary. Copyright exists from the moment the work is created.”

    This says the moment it was created, so, again, why is internet publication not sufficient to have a copyright?

    Thanks for helping to clarify a very confusing topic.

    • debmcalister says:

      I agree that it can be confusing! Copyright exists as soon as something is in “fixed” form — that is, when it is written down, photographed, recorded, drawn (or whatever). But in order to collect damages for copyright infringement, it’s important to register the work.

      So, yes, your work is protected as soon as it’s on your website, or hard drive, or on a sheet of notebook paper. But when it comes to proving copyright infringement in court, and collecting damages, registration not only makes winning easier, it can get much higher damages. And there are jurisdictions where only REGISTERED copyrights are recognized.

      My IP attorney won’t handle cases where copyright is not registered either with the copyright office, or one of the professional organizations like the Writer’s Guild, SAG/AFTRA, BMI, ASCAP and so on that handle rights for creators. Some other attorneys will, but I’ve had very good luck with my attorney for over 20 years (he replaced my prior attorney, who was tragically killed), and I simply take his advice, and budget to pay the registration fees for major works.

      One of the biggest problems US authors have with online publications (including Amazon and other publishing venues) is a thief in another country who lifts their work, republished it, and may even register a copyright to the stolen work in the thief’s home country. It’s hard enough going after foreign copyright infringers, but nearly impossible if they go ahead and register a copyright to YOUR work in their name, in their home country. If your copyright is registered with the US copyright office, we have treaties with most other countries that protect you. If it’s not registered, it descends into a “he said/she said” situation where the “proof” of who published first can be very difficult — and if the thief registered it and you did not, it can be nearly impossible.

      There have been cases of well-known authors who had their work stolen, and republished on Amazon under someone else’s name. Yes, Amazon will pull the work if plagairism or copyright theft is proved — but if the author is based overseas, they can keep selling the pirated material.

      I am not sure what specific comments made you think I was saying that publishing something online isn’t really publishing. That was not my intent.

      However, remember that if you publish fanfiction — regardless of where it is published — you do not own the copyright to the complete story, but only to those parts that are wholly original (such as an original character who does not have any of the attributes covered by the underlying copyright, such as the blue skin, tail, and biology of the Na’avi in James Cameron’s Avatar series). The exception, of course, is fiction like that of Jane Austen that is in the public domain — if you write Pride & Prejudice fanfiction, you can copyright the entire work and publish it for profit.

      Best of luck with your publishing ventures, be they online or in print!

      Regards, Deb

  3. I had ushered writers from the Edgar Allan Poe fandom on my magazine back in 2007 but there is a love/hate relationship with fan fiction writers in the small press circles in horror. I had seen the views from my own rosters over the years, Nicholas Stember who wrote The Third Rule on The House of Pain E-Zine weighed in first. I decided to be a wiseass and sneak a creative nonfiction yarn on that sniped at brick size pseudo-novels as the Another Hope shitstorm unfolded as I sold to Tales of the Talisman for 2.4 with a work of horror fiction. The publisher wanted a story a classmate developed the character as I wrote this with his notes. I had outed a fanfiction writer in 2008 when she sabotaged some of my submission calls as she lifted my science fiction story bastardizing the thing as “Fossil Lake” and publishing a number of fake named writers which took from my screen names over the years.

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  6. Somebody says:

    Since the case isn’t happening anymore, is it at all possible for you to give any more info about the books that might have been plagiarized from fanfics? I’d be interested to know if any of them are anything that I’ve read or heard about.

  7. Lea says:

    I have a few questions…

    1. I was wondering, in that case, at any given moment, could a fanfiction writer be sued for using characters?

    In the case that the answer is No, then how can you protect yourself?

    If the answer is yes, is there any way to protect yourself? What if you wrote a fanfiction and didn’t post it or publish it? What if you kept it somewhere (i.e. written in a notebook, or in a Word document) and never published it? Could you show it to someone personally or would that also be not allowed?

    2. Has there been any major case in which a fanfiction writer has been sued for using characters or a setting?

    Thank you!

    • debmcalister says:

      Hi, Lea –

      From a copyright standpoint, a work does not exist (legally) until it is in fixed form. That normally means until it is published, or submitted for copyright registration, or performed/presented in public. So if you write something, and share it with friends in private, I don’t think see how a copyright holder would even find out about it. (That said, remember, I am not a lawyer.)

      As to the question as to whether a fanfiction writer can be sued for using characters, I think that Fiction Alley co-founder and copyright attorney Heidi Tandy can explain it better than I can. Here’s a link to what she had to say. Ms. Tandy explains exactly how to protect yourself by creating a “transformative” work that meets the guidelines for avoiding a losing case.

      As for a case where a fanfiction writer has been sued, the recent Axanar case, about a Star Trek fan film, is the most recent example of many. Here’s a link to the guidelines published as a result of that case

      Although these guidelines (seem to) apply only to the Star Trek universe, Plagairism Today writer Jonathan Bailey (a well-known expert on such issues) explains clearly why the guidelines came about, and how they apply to fan fiction writers.

      The best way to protect yourself from litigation is, of course, not to break the law. There are many well recognized fan fiction sites like and Fiction Alley, and if you follow their rules and publish your not-for-profit work there, you should avoid making yourself a target.

      Best of luck with your writing!

      Regards, Deb

  8. Jenny L. says:

    Alan Dean Foster did not write the novelization of Star Trek: The Wrath of Khan. That was Vonda McIntyre.

    • debmcalister says:

      Thanks, Jenny — you are correct, and the copy has been updated. According to Wikipedia, Alan wrote a treatment for what became Star Trek II (The Wrath of Kahn), back when it was supposed to be a second series on Paramount Television, rather than a feature film. My error! Thank you for the correction!

      Regards, Deb

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  11. Sheogorath says:

    Didn’t see the following the last time (dyslexia): J.K. Rowling, for example, went from giving an award to The Harry Potter Lexicon and writing “This is such a great site… my natural home” to suing the site’s creator for what his publisher believed to be an legal reference work.
    That’s because Steve Vander Ark went from having a non-commercial website to professionally publishing a book, and although the former activity had J.K. Rowling’s permission, the latter didn’t. The reason Ark’s publshers thought the printed version of the HP Lexicon was legal is because they mistakenly believed that all Potterverse fan activity had permission when only non-commercial activity does.
    I would ask that you research the whole case because what you said is only helping to make a cloudy issue even murkier. In fact, I recommend you pull what I just quoted altogether since, given the background of the case, it doesn’t actually help to prove your point.

    • debmcalister says:

      I believe strongly that the fact that the court ultimately allowed publication of Mr. Van der Ark’s book — which I purchased, of course — was the correct judgement. In fact, only two small changes were made to the book before it was published.

      The right to publish a scholarly work such as a lexicon or dictionary based on a fictional world is well established in U.S. law — I myself have published several such works in the course of my long career. As for researching the case, I sit on the board of one of the writer’s groups that filed an amicus brief in the case and am very familiar with the case law Mr. Van der Ark’s law firm used to fight what I considered an unjust rights grab on the part of Ms. Rowling and her commercial partners. I was able to attend the trial itself and was in the courtroom when Ms. Rowling testified.

      So I think this is a case where I did more than adequate research, and I am sorry if what I wrote led you to think otherwise. Just to be clear, I think Ms. Rowling and her legal team attempted an unjust and unfair rights grab, and I am very, very glad that Steve van der Ark and his publisher prevailed. It is a shame that he had to fight the case at all, when most observers felt that the prevailing law was clearly on his side. I also thought the way some of those in the fan fiction community responded to the case was sad.

      Regards, Deb

  12. Sheogorath says:

    No damages [in the U.S.] without a registered copyright.
    ORLY? § 412 of the Copyright Act 1976 would beg to differ inasmuch as it clearly states that the holders of copyrights in unregistered works cannot sue for statutory damages and attorneys’ fees, and says nothing about actual damages.
    Is it different in the U.K?
    Oh, very.
    Are you a barrister or solicited there?
    IANAL, but I am an Autistic auto-didact cognoscente of UK copyright law.
    I would love to learn more about the differences in the two copyright systems.
    Okay, I’ll use Happy Birthday to You as an example. You know how the lyrics are copyrighted till the back end of never in the U.S, and the melody is copyrighted for a similar period in Europe? Well, in the UK, we can use both lyrics and melody in an advert (for example) without needing to pay royalties. This is because the lyrics entered the Public Domain on 01/01/2008 in the EU, of which the UK is a member, and since the melody of Good Morning to All entered the U.S. Public Domain during the 1912-1956 period that the UK was following the Berne Convention Comparison of Terms… As one judge noted, “A split note does not a new copyright make.”
    If you can point me to any specific case law on [the] subject [of fanfiction.]
    No case law yet, but that may be because the cases of copyright infringement and plagiarism of fanfic have thus far only been against those living in the U.S.

    • debmcalister says:

      LOL — You sound like me with that description of yourself, although I am not autistic, just a life-long follower of the strange ways our courts interpret copyright laws.

      The problem in the U.S. with collecting damages on an unregistered work is proving actual damages. It is very, very difficult to prove that you suffered an “actual” monetary loss on a work that was offered (a) free (b) was not registered prior to the infringement and (c) is on a public fan fiction site where nearly all of the authors declare in one form or another that they do not expect to earn any money for their work.

      Judges and juries have occasionally awarded damages to people with unregistered copyrights, but more often, the creator finds it very difficult to even get to court because of the very high costs and lack of legal help available. Some courts have even ruled that you can’t sue even if you have applied for a copyright, but haven’t received it at the time of the infringement.

      Thanks for the Happy Birthday example of the differences. As for the lack of U.K. case law, you’re definitely correct that most fanfic litigation has been in the U.S. Thank goodness for lawyers like Heidi Tandy and the team at the EFF who have gone to bat for fanfiction authors here!

      Just in case it isn’t clear from the post or this comment thread, I believe that fan fiction authors SHOULD have more rights than they are currently able to enforce, and that creators should be fairly compensated for their work and protected from infringement, regardless of their age, whether they were paid for their work or not, or any other factor. If I create it, I think I should own it. My intent with these articles was simply to help explain some of the difficulties writers face — not to argue against protection for them. By the way, I noticed that your original comment was on the first article I published here about fanfiction and copyrights — did you see the update that U.S. lawyer Heidi Tandy (one of the founders of FictionAlley) helped with? Here’s a link to that if you didn’t see it.

      I am enjoying the conversation — thank you again for taking time to comment!

      Best regards, Deb

  13. Sheogorath says:

    In the U.S., the copyright office will not issue a copyright for fan fiction.
    And? I live in the UK. Besides, even in the U.S. copyright on the original expression of ideas is automatic, so someone living there could still sue for actual damages, just not for statutory damages and attorneys’ fees. Simples!

    • debmcalister says:

      No, sorry. Not in the U.S. No damages without a registered copyright. You own it, and may (emphasis on the word may) be able to stop someone from using the portion of your work that is original, but you cannot collect any money.

      You can register the copyright after a judge says you own the work, and collect damages in the future if someone else infringes. But that supposes that the judge orders the copyright office to accept your registration, and there is a subsequent breach that you are able to prove in court. This is not the same thing as a DMCA takedown notice, where you ask an ISP or forum to remove infringing content.

      The real trouble is that it is very, very hard to find an attorney who will handle a copyright case relating to fan fiction on a “contingent fee” basis, so the fan fiction author who does want to protect an unregistered story must fund the entire cost of litigation themselves. So most find it prohibitive to spend thousands of dollars fighting a case where they cannot recover even their costs.

      Is it different in the U.K? Are you a barrister or solicited there? I would love to learn more about the differences in the two copyright systems.

      Here, the copyright office has recently made it much harder for anyone who publishes online to protect their work, by stating that Internet publishing on blogs and forums is not "serial publishing", so instead of copyrighting year's worth of blog posts and protecting it all, writers must file for protection on each post, paying the $35 fee for each one. I am personally hoping the new guidelines will change, but right now it isn't looking good for those of us who are primarily hobbyists wanting to protect our online rights.

      Your are of course correct in saying that "protection is automatic" but enforcing that protection is harder than it has to be. I personally know several fan fiction authors here in the US who have experienced heartbreaking plagiarism and copyright infringement only to be told by various lawyers that unless they wanted to spend $25,000 to $50,000 without recovering a cent even if they won in court. Very sad that our laws don't protect creators rights better, in my opinion, but there it is.

      Again, thanks for the comments -- I would love to learn more about your experiences with fan fiction in the U.K., and if you can point me to any specific case law on this subject, I would be quite grateful.

      Regards, Deb

  14. wwwarea says:

    I think there is a problem to the so-called “myth” of the original one..

    You can’t copyright ideas.
    Your basically saying that if I made my own ideas to the existing world of a “fiction world”, then the “original owner” owns them? That doesn’t sound right as it doesn’t change the fact that the fan author still came up with it.

    I mean if the idea expression involved a copyrighted describing thing (if that’s possible) then part of the idea expression isn’t his, but his own ideas added to it, should still be consider his/her owns rather than the ‘original copyright’ owner.
    I am not so sure though, this is just a wonder of the law, but sadly I’ve hear Copyright isn’t very clear these days and it’s a mess.
    I’ve also heard that you can consider Fan Fiction original if: The names are removed, and other types of things. Hmm..
    Yet, you can’t even copyright names, so it’s very confusing..

    Also, Fan Fiction IS original as in a whole.. I mean, nothing is really original but it’s a new form.

    • debmcalister says:

      My understanding, which I reviewed with two lawyers well-versed in this including one (Heidi Tandy) who is a founder of one of the largest fanfiction sites online, is that the only portion of a fanfiction story than the fanfiction writer owns is the original characters/situations — not any of the underlying structure of the fictional world in which the story is set.

      It was not my intention to claim that the original author — say J.K. Rowling, in the case of a Harry Potter fanfiction story — owns the work of fanfiction authors. But they don’t exactly own all of it either — that’s why it can’t be sold commercially, and why E.L. James was able to make millions off 50 Shades of Grey once she stripped away everything relating to vampires and the “Twilight” universe.

      I think we will have to agree to disagree that fanfiction as a whole is a new form. People have been writing what was once called “pastische” — additions to fictional worlds, like Dracula or Sherlock Holmes stories — for a long, long time. I think it’s natural for creative people to want to put their own spin, and add their own ideas, to the “universes” that they love.

      Thanks for taking time to leave a comment!

      Regards, Deb

      • Sheogorath says:

        The only portion of a fanfiction story that the fanfiction writer owns is the original characters/situations — not any of the underlying structure of the fictional world in which the story is set.
        Exactly. That’s why I can have a copyright notice on my fanfics, even though I don’t own the worlds or some of the characters.

      • debmcalister says:

        In the U.S., the copyright office will not issue a copyright for fan fiction. So, while you own your original work (characters and situations you create), you are not eligible for statutory damages if someone infringes on your work. Or so I have been told by several attorneys.

        Thanks for your comment, and best of luck with your writing. Regards, Deb

  15. Deb McAlister, author and writer, takes a fresh Look at Copyright Issues with Fan Fiction #copyright #fanfiction #law
    “As non-lawyer who writes often about legal topics, the last thing I want to see in my email inbox is a message from a nationally recognized legal expert who is pointing out a mistake in something I wrote: Heidi Tandy dropped me a note to correct some facts in an article I published about common copyright myths related to fan fiction. Tandy, attorney, Intellectual Property at Price Benowitz LLC, one of the top experts on fan fiction, copyright law, and contributor to “Why Fan fiction Is Taking Over the World (Smart Pop).”

  16. Pingback: A Fresh Look at Copyright & Fan Fiction | Marketing Where Technology Intersects Life

  17. Lisa says:

    Out of curiosity, how can your lawyer friend file a lawsuit against the published author if the fanfiction writer probably does not have a registered copyright with the US Copyright Office? Unless the fanfiction author has a registered copyright, which is doubtful, according to the US Copyright Office, no infringement suit can be filed and even if it can, she would not be awarded statutory damages from the profits the other author made off her her work. That’s like accusing someone of stealing a stolen care and giving the stolen car back to the person that stole it in the first place because they happened to have made alterations to it.

    • debmcalister says:

      Hi, Lisa —

      Registering your copyright is a way to prove WHEN you created something and the VALUE of it for the purposes of statutory damages. Without a registration, it’s hard to prove damages for unpublished work. But it is not a necessity in order to file a DMCA takedown request or copyright infringement suit. If you can prove WHEN you created something and place a monetary value on it, it is possible (though not as likely) that you can receive damages.

      In this case, the fan fiction writer can easily prove when the work was created, since it was published as a work in progress with installments dating several years before the commercial work was created. And, as she is an administrator on a fan fiction website, she can prove that the site received advertising revenue from ads placed on the site by Google, and there is a monetary value for the number of readers she got for her story.

      In this case, although I am not privvy to the details and everything is still pending at this point, I do not believe that the plaintiff is seeking statutory damages, simply a halt to sales of the “pirated” work. (Yes, some people CAN afford to litigate over principles instead of money — although not many.)

      You do not have to register a copyright in order to file suit for someone else for infringing on your rights. But I don’t know of a lawyer who’d take a case for an unregistered copyright on a contingent fee basis, which is why the deep pockets the plaintiff has matter in this one.

      Part of me wants to agree with your analogy that the fan fiction writer stole another writer’s work in the first place and shouldn’t profit from that, but I am also unhappy about a commercial publisher and a hack writer profiting from stealing the original work of not one, but two, other writers. So it will be interesting to see how it comes out.

      Thanks for the comment and for stopping by the blog! Regards, Deb

  18. Pingback: Copyright Infringement, Plagiarism, and Client Demands | Marketing Where Technology Intersects Life

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