Are Fan-Made Works Legal?
So, you’ve sat down with a nice cup of tea, and you’re ready to read the newest installment of your favorite Harry Potter/Glee crossover fan fiction when you think: Is this legal?
Or maybe you’re a fan fiction writer, and you’ve been living in fear that, one day, J.K. Rowling will send you thousands of letters. No, not to tell you that you’ve been accepted to Hogwarts, but to sue you for everything that you’ll ever own.
Worry not. In this article, we’ll uncover whether or not fan-created works are illegal, and if you can enjoy your favorite fan creators without getting hauled off to jail.
The Origins of Fan fiction
We think of fan fiction and fan art as modern creations, but they aren’t. Fan fiction has been around — and written by acclaimed writers — for centuries.
Proust wrote fan fiction, and so did James Joyce and Franz Kafka. Only these writers didn’t call it fan fiction. The fancier, literary term is “pastiche.”
A pastiche is defined as a deliberate imitation of the work or style of other artists or writers, and as far as I can tell, is indistinguishable from fan art and fan fiction.
Some have proposed that there is a dividing line between pastiche and fan fiction — that a pastiche is a deliberate homage to the original author's works, and fan fiction is more of a revision or deconstruction of those works.
I disagree because there are so many different kinds of fan fiction. Yes, some fanfic authors simply insert the names of famous fictional characters into their own original stories, but many are thoughtful works of imitation. And fan fiction readers are quick to point out stories where the characters or the plot don’t feel authentic to the original.
Fan fiction lives in a legal gray area.
The only genuine difference is that the pastiche exists in the realm of “serious,” mostly male artists and writers, whereas young women often make fan art and fanfics.
This gender bias isn’t anything new in the creative world. Society often considers topics dominated by women to be frivolous or trivial. The same prejudice can be seen against genres like romance and young-adult fiction.
But is fan fiction legal?
But quality aside, is fan fiction legal? The answer is yes — and no.
Technically, there are no barriers to entry. Anyone can post a fan-made work and have it seen by huge, dedicated audiences. Websites like Fanfiction, DeviantArt, and Archive of Our Own exist to warehouse art and stories derived from copyrighted materials. Millions of users publish works on these websites every year.
The fan fiction website Archive of Our Own even won one of genre literature’s most prestigious honors, a Hugo Award, because of the community fostered by its creators.
But, legally, how can fan creators defy copyright laws? Well, fan fiction lives in a legal gray area.
In the United States, fanfic writers usually cite the “fair use” doctrine when defending their use of copyrighted characters and materials.
Fair use dictates that people can use copyrighted works under limited circumstances:
- The work is used in an educational or non-commercial way
- The work is demonstrably true (a generally known fact)
- The work doesn’t include a substantial percentage of the original (the free sample chapter you can get of a novel before you buy it)
- The work doesn’t infringe on the reputation or value of the original
- The work is “transformative”
- The work is used for critique, parody, or review
Fan-made works hinge on their non-commercial aspect and how they transform or parody the original.
Arguing ‘fair use’ is like arguing ‘going with the flow of traffic’ for a speeding ticket.
Now, I am not a lawyer, and this isn’t legal advice, but I do know if you use a copyrighted work, no matter how much you believe it falls under the fair use doctrine, the original creator (or the estate of the original creator) can still sue you. Fan creators can only use the above criteria as a defense against charges of copyright violation.
First, you have to be accused of infringement. Then, you can explain to a judge why it falls under the fair use doctrine.
And, arguing “fair use” is like arguing “going with the flow of traffic” for a speeding ticket. There’s a chance it might work, but you’d still end up spending your day at the courthouse.
But down to brass tacks. If brands and authors can sue fan creators at any given moment, why don’t they? Well, in the past, they did.
Authors like Anne Rice and Diana Gabaldon have been very vocal about their dislike of fan fiction. Back in the infancy of fandom — the 1980s — these authors and others like them asked fan fiction websites to take down stories that feature their characters or fictional worlds. They also sent strongly worded emails to fans who continued to post fanfics elsewhere.
But most writers and creators, especially those who understand the power of social media, don’t go down that path.
Why?
Because suing fans or sending them cease-and-desist notices can become a PR disaster.
It’s not worth it for huge brands and famous authors to come after fans who post a few drawings of a Marvel superhero or write fanfics about Harry Potter.
They understand that the people who take the time to create this kind of art are hardcore fans. And, in the last decade, fandoms have become more powerful. Angering any online fan community is now a dangerous proposition in the age of Twitter.
Fan-made works can also help a book or series remain relevant. There can be a lot of time between seasons of some shows or novels in a series. Fan-made creative works can keep the hype going strong — a win-win scenario.
What about selling fan art?
This question is less murky: a person shouldn’t profit from the sale of someone else’s work. It’s a clear violation of copyright.
Sure, in some cases, the art might be “transformative” enough to pass the fair use test, but the moment money enters the equation, the fight can get dirty.
The original inventors of the brand, series, or novel now have a financial incentive to stop fan creators. Every shirt, drawing, or keychain a fan creator sells is a profit the copyright holder could have made through authentic merchandise.
It’s also risky for the rest of the fan creator community. If original creators decide to crack down on people selling fan art, that would have a chilling effect on all fan-made work.
Andie Cranford is the founder of The Narrative ARC, an online resource for writers.