Since the past year in quarantine has given most folks considerably more free time on their hands to explore old hobbies and interests, fanfiction has notably been on the rise. In fact, at the very start of lockdown in March and April 2020, Archive of Our Own (AO3), a very popular fanfiction site, found that their weekly site visits had gone up 60% from the same time the previous year. This is not to say that fanfiction is a new phenomenon, however.
Fanfiction, or fiction written by fans of existing fictional works, has been around for a long time. It follows as a natural consequence of compelling and well-written works consumed by a passionate fanbase. Though it has existed for many years, fanfiction as most people know it today has been largely popularized by the internet. Sites like AO3 provide fanfiction authors with a forum to publish their works, as well as huge audiences from around the world to consume them for free.
While on their face, these fanfiction communities may seem like harmless outlets for fans, existing copyright doctrine actually renders much of these works as infringements of copyright. The problem is that most fanfiction could be characterized as derivative works of other already existing original works, as defined in 17 U.S.C. § 101. Derivative works are works that are “based upon one or more preexisting works, such as a … fictionalization … or any other form in which a work may be recast, transformed, or adapted.”
Fanfiction often qualifies as derivative works because it typically involves narratives operating within the same settings or universes created by the original authors, including their characters and other elements of expression. Without authorization from the original author, such works are an infringement of the author’s exclusive right to “prepare derivative works based upon the copyrighted work,” as stated in 17 U.S.C. § 106(2).
Despite the barriers to fanfiction that the derivative work doctrine raises, fanfiction writers may find relief from liability through the fair use doctrine. Some advocates of fanfiction, like the Organization for Transformative Works (OTW), argue that fanfiction falls under fair use, which would ultimately eliminate potential legal trouble for such authors. Fair use is an area of copyright law that allows for freedom of expression when using unlicensed copyrighted works in very limited and specific incidences, as established in 17 U.S.C. § 107.
Though fair use determinations involve four distinct factors, the two arguably most relevant factors when evaluating the legality of a fanfiction work would be: (1) the purpose and character of the use, including whether such use is of a commercial nature; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
When evaluating the first factor for a fanfiction, courts would look to the extent to which the unlicensed work was transformative in nature. This transformative use doctrine was first established quite recently in the 1994 case, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Simply stated, the Court in that case emphasized that the “transformative” nature of works — meaning the extent to which the works in question added new expression and value to the existing work — would be a significant factor in determining whether a work falls under fair use.
This means that by adding something new to already existing works, fanfiction authors may claim that they are not infringing on the existing rights of the original author. The fourth factor is slightly more straightforward than the analysis required under the first factor — courts would just look to whether or not the work would negatively impact the current market for the existing copyrighted work. Given these two factors, OTW claims that fair use can be an effective shield against liability for fanfiction authors, so long as their works are “noncommercial” and “transformative.”
Though this legal framework is certainly not the most straightforward or predictable, fanfiction authors need not worry too much, as the majority of their work will likely never be challenged by the original authors. This is due to the fact that most fanfiction remains online as a free resource and is thus not a huge threat to the original authors’ existing markets. Furthermore, some content owners — like Hasbro and Star Trek — have even encouraged fanfiction by providing guidelines for their fan bases to avoid legal trouble when creating such works.
As the previous analysis suggests, however, authors can run into issues if and when their fanfiction becomes commercial. This is clear from the case of Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), where an author attempted to sell an unauthorized sequel to J.D. Salinger’s Catcher in the Rye. The book, though it had original text and plot, used the same characters from the existing work and was ultimately not found to be a fair use.
Commercial use may seemingly not be a total barrier, however, so long as the fanfiction author retroactively removes copyrighted elements from their works. This was the case for E.L. James, author of Fifty Shades of Grey, which actually started out as an online fanfiction for Stephanie Meyer’s Twilight saga (titled, Master of the Universe). To get around any copyright issues when the work was going to be published, James removed copyrighted elements like the original Twilight character names and settings from her story. To this day, no litigation has been brought against James, despite the work’s undisputed origin as fanfiction and huge commercial success.
Finally, one recent trend in the fanfiction community raises some flags as it pertains to this commercial use point, namely bookbinding. As this article explains, it has lately become a popular practice to create and sell physical copies of online fanfictions, which would otherwise remain solely online. Though the parties currently charging a fee for the bindings are only doing so to recoup the costs of the materials and shipping, this certainly bleeds more into commercial territory than internet fanfiction has typically done thus far. To date, it seems there has been no litigation on this front, but as it is a relatively new issue, it will be an interesting one to watch unfold.