A few months ago, a fan created a reboot trailer of the 90s hit show “The Fresh Prince of Bel-Air” (1990 – 1996). The video went viral on YouTube, so much so that the original show’s star, Will Smith, caught wind of it. He loved it and sat down for an interview with the trailer’s director. The comments on the video’s YouTube page indicate thousands of people hoping to see the reboot come to life as a real series or even a feature film.
As lawyers, this got us thinking about fan-made projects, specifically fan fiction. Can fans legally create and distribute work that uses existing plots and characters from their favorite books, shows and movies? And if so, to what extent and under what circumstances?
What is fan fiction anyway?
The Oxford Dictionary defines fan fiction, or “fanfic,” as “fiction written by a fan…featuring characters from, a particular TV series, film, etc.” Fan fiction was actually popularized by Star Trek fans. It developed through the Star Trek-inspired fanzine (an unofficial magazine created by and for fans) called “Spockanalia.”
First published in 1967, “Spockanalia” was the first publication to introduce modern fan fiction. Since then, fan fiction has grown tremendously. This is due especially to the ease with which it can be shared on the internet.
FanFiction.Net has over 10 million registered users and hosts stories in over 40 languages. Archive of Our Own has around 2 million users. These sites have helped proliferate the community. More recently, video sharing platforms like YouTube and Vimeo have helped spur the distribution of fan-made video projects. More fan fiction, much like the Fresh Prince-inspired video noted above, is getting made. That video received over 4 million views in only two months. One thing is clear: the fanfic community is growing.
Legally, however, fan fiction has had its share of bumps in the road. So if you’re interested in creating fan fiction or you already have a project underway, listen up. It’s important to understand the legal implications of distributing this type of work online.
Copyright law and derivative work
Generally speaking, copyright law protects original creative works, such as books, images, music, videos, and so on. It’s granted automatically when a creative work is completed, although also registering your work with the U.S. Copyright Office provides added benefits. Original authors, through copyright protection, can reproduce their work, distribute copies of their work, publicly perform or otherwise display their work, and (most important to this article) create derivative works.
What exactly is a derivative work? Well, under the Copyright Act, a derivative work is defined, in part, as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Fan fiction almost always falls under the definition of a derivative work.
Fan fiction almost always falls under the definition of a derivative work.
Because of this, the copyright owners of the original work (i.e., the underlying work that is the basis of fan fiction) have the right to sue fan fiction creators for copyright infringement. After all, the argument goes, the fan fiction piece is based on their characters, plots, storylines, etc. And there have been cases where copyright owners sued and won.
For example, famously, author J.D. Salinger sued a Swedish author who wrote a book entitled “60 Years Later: Coming Through the Rye.” It’s an account of Holden Caulfield decades after the original story. The court held that while “60 Years Later” was its own separate work with its own plot and text, the main character was borrowed from the original. Therefore, it infringed on J.D. Salinger’s copyright. Importantly, the court rejected the Swedish author’s defense that his work fell under the “fair use” exception.
Which begs the question: What is the fair use exception?
The Fair use exception
Fair use describes a carve-out in copyright law that protects a content creator from allegations of copyright infringement when they use someone else’s work without permission, including a derivative work. According to the U.S. Copyright Office, a few examples of instances where fair use is acceptable include criticism, comment, news reporting, teaching, scholarship, and research.
So where does fan fiction sit in the fair use spectrum? Well, the government weighs four factors when considering whether fair use applies:
- Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. Is the fan fiction creator using protected characters, plotlines, etc., in a nonprofit or educational context? Or, are they trying to sell their work and make money?
- Nature of the copyrighted work. If the underlying work that was protected is pure fiction, fair use is less likely to be granted. If it’s nonfiction, fair use is more likely. Since fan fiction is mostly based upon previous works of pure fiction, this factor typically weighs against fan fiction as fair use.
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole. In other words, how much of the original work makes up the new work? If the fan fiction includes large portions of the original work, fair use is less likely. Whereas if the fan fiction includes only a few small portions of the original work, it’s more likely.
- Effect of the use upon the potential market for or value of the copyrighted work. How might the fan fiction affect the market value of the original work like sales, brand dilution, etc.?
Don’t assume fair use
For the most part, fan fiction is created and distributed on the internet purely for the love of the story. Written fan fiction is printed online by fans for fans and usually isn’t for sale.
There are exceptions, of course. In Warner Brothers v. RDR Books, a “Harry Potter” super-fan created a “Harry Potter” “encyclopedia.” It was so good that J.K. Rowling was said to have used it herself. However, when the super-fan was about to sign a book deal to have his work published and sold, in came a lawsuit.
Ultimately, the court ruled against the fan. His work was commercial in nature, not critical or satirical. It was mostly made up of rearranged elements of the original “Harry Potter” books. Plus, it was going to be in direct competition with an upcoming “encyclopedia” that J.K. Rowling herself was planning on publishing.
The same thing goes for video. If you make a fictional short that’s based on an original work of fiction, and that short leads to commercial opportunities, don’t just assume it’s going to fall under the protection of fair use.
Two rules of thumb
While every piece of fan fiction is different, based on the above, there are a few good rules of thumb.
First and foremost, don’t try to commercialize your fan fiction. While it’s only one of the factors courts look at when deciding on fair use, it’s a big one. Fan fiction was started as a creative outlet, and it feels like published authors try to keep it that way. Look at it as a way to share your love of a certain character or story with fellow fans. Don’t see it as a way to make money and achieve stardom.
If you do decide to try and sell your fan fiction, try to use the underlying work as mere “inspiration” rather than treating it as a “prequel” to your work. While the J.K. Rowling case was an extreme example where the fan fiction author seemed to merely rearrange things from the original books, the J.D. Salinger case is more telling, where the book was about the main character in “Catcher in the Rye,” but set in a totally different time and place.
Ultimately, even famous authors differ on fan fiction. J.K. Rowling, while taking lengths to protect her work in the example noted above, actually supports fan fiction. She has been known to express how flattered she is by the fact that so many people have taken such an interest in her work. “Fifty Shades of Grey” (2012) author E.L. James also supports fan fiction. Indeed, that’s how she got her start. “Fifty Shades of Grey” was her response to the “Twilight” vampire series. Other content creators are not as fond of fan fiction.
At the end of the day, it’s important to know the legalities underpinning fan fiction. Whether you’re publishing it for free as a creative outlet or you’re using it to jumpstart your career in content creation, keep in mind where your work sits on the fair use “spectrum” and proceed accordingly. In an ideal world, you’d be able to contact the original copyright owner and get their blessing. But if that’s not possible, make sure to talk to an attorney about how to navigate your fan fiction in a lawful manner.