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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