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 Rings, Sookie 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 Amazon.com 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.)
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!