Every memorable film, show, book and comic owes at least part of its success, or in some cases such as ‘Fifty Shades of Grey’ all of its success to a dedicated fanbase whose imagination revolves around their favorite characters.

All this imagination required an outlet, hence the formation of fanfiction. As the fanfiction database has grown exponentially over the years with millions of fans being able to write, publish and read stories regarding their favorite characters, so has the legalities of such a creative outlet.

The legal debate has been present ever since the first fanfiction was published in a “Star Trek” fanzine in the late 1960s. The biggest concern for these fan created stories is that authors are now publishing their stories and making profit from characters and or content that still very much belongs to the original creators while bypassing copyright procedures.

Fanfiction is classified as “derivative work” in the U.S. and falls under copyright law. Derivative work means a piece which is based on a pre-existing work. For something to be considered as a derivative work there must be some form of modification which then separates it from the original work – the extent of which is not specified. The effect of identifying fanfiction as a form of derivative work allows fans the right to write their fanfictions so long as they contest within the copyright laws of the original work and do not breach the doctrine of fair use. The issue here however, is that almost no one who writes fanfiction is aware of or if they are, how to abide by the terms of a derivative work. As a result they are liable to be sued by the content creators.

An example of a fan being sued was a Swedish fanfiction writer for his “Coming through the Rye” which featured a 76 year old version of Holden Caulfield from the novel The Catcher in the Rye by J.D. Salinger. The case was heard in the United States District Court which held the fanfiction to be a direct parody of Salinger’s book and banned it from being published in the States.

However there are people whom have a much more relaxed approach in determining whether or not a fanfiction has breached copyright laws, as seen with the following case between ,Suntrust and the Houghton Mifflin Company. Alice Randall’s “The Wind Done Gone,” which is based of the classic Gone with the Wind was accused of copyright infringement. Here the judge ruled in favour of Randall’s fanfiction, stating she [the judge] found that it “provided social benefit by shedding light on an earlier work, and in the process, creating a new one.”

The stance of the original creators is on the fence. While there are some authors who take legal action against their fans, there are other who enjoy and encourage their fans to write fanfictions. Few even go as far as to “canonize” their fans work through competitions or other means.

For fanfiction writers based in Australia, the rules are a little different. Should an Australian fan be sued by an American original creator there is the issue of jurisdiction. For example does a U.S. court have jurisdiction to try an Australian fanfiction. As seen with the The Catcher in the Rye case the only action that could be taken against the swedish writer was to ban the publication of his work in the U.S.

Australia derives its copyright laws from the Copyright Act 1968 . This act provides artists with copyright protection. However, unlike in the U.S. these rights differ depending of what form is the artist’s work, ie, film, book, art etc. Also unlike the U.S and its “derivative work” protection Australia does not provide copyright protection against independent creations based of the Original creator, which is essentially fanfiction.

Fanfiction draws a milieu of views. While there are a few instances of legal action being taken against fanfictions, fans must still be wary of the legal implications should they go too far as there is no legislation to provide such guidelines and the present law is derived from cases. Nevertheless fanfiction provides an outlet for people’s creativity and love for characters and stories and for the most part fanfiction is harmless fun.

It depends on how you look at, there are fifty shades of fanfiction.

Let us know your thoughts on the copyright and fanfiction by tagging us #lawpath or @lawpath.

Nina Marie Bishay

Nina is a Paralegal working in our content team, which aims to provide free legal guides to facilitate public access to legal resources. With a passion for copyright law, her research focuses on small businesses, and how they can navigate convoluted legal procedures.