Concerning Fanfiction

By Sarah Levesque (Rated G)

The Lord of the Rings, Harry Potter, The Chronicles of Narnia… There’s no doubt about it, we readers and writers love fanfiction. After all, without fanfiction, we wouldn’t have details about Eowyn’s life before she met Aragorn, we wouldn’t know of the liaison between Hogwarts and the Muggle school system, or what happened when the Pevensies returned to London after the events of The Lion, The Witch and the Wardrobe. And this is just a small sample of the fanfictions I have written myself!

Without fanfiction we’d never be able to mix and match characters like our own Amanda Pizzolatto does so well. We would have no outlet for the possibilities that swirl around our minds, those what ifs that plague us until we write them. What if the Doctor was the one to save Superman? What if Bilbo had never met Gollum? What if Thanos had had a better childhood?

How many books and movies could be considered fanfiction? Christopher Robin (the recent movie) could be considered fanfiction, as it was not written by the original authors of either the books or the Disney cartoons. Many of the Boxcar Children books could be considered fanfiction as well, as Gertrude Chandler Warner only wrote the first nineteen. Rick Riodan’s works are new slants on old myths. Death Comes to Pemberley is the fanfiction follow-up of Pride and Prejudice (not to mention Pride and Prejudice and Zombies), and I’m sure there are countless other stories that fall into the category of fanfiction. The only difference between these and what is typically published online on blogs and various sites is that these listed above all either were published by the original copyright holders (i.e. Christopher Robin was also put out by Disney), or they were different enough from the original to avoid copyright laws, or – as in the cases of Rick Riordan and Death Comes to Pemberley – the original stories are not under copyright these days.

Now, of course, stories such as the ones I write are not by the original copyright owners, and so they may not be sold or they would infringe upon copyright laws. However, some copyright holders, such as the Tolkien Estate (1) and George RR Martin (2), believe that even circulating free fanfiction (like fanficion.net and other sites do) is an infringement of their rights. Some copyright holders (such as Marion Zimmer Bradley) go so far as to say that just writing fanfiction (without the intention of publishing it) is an infraction of their rights (3). 

Each of the above copyright holders has spoken publicly about not wanting their worlds and characters used in fanfiction. Some people who have spoken out have legitimate concerns, such as J.K. Rowling who, though typically an upholder of fanfiction, is concerned that the children who are the main readers of her Harry Potter books will find works of fanfiction containing adult content (4). Other copyright holders’ reasons are less clear.

The question each of us needs answered is this: How far do the laws extend, what counts as infringement and what are the repercussions of violating the laws? For untold years, most fanfiction writers have dismissed copyright laws by citing the rules of fair use and by arguing that unpaid fanfiction does not hurt an author but may instead give the original work positive publicity. In any case, I think the old adage rings true – imitation is the highest form of flattery. If people are writing fanfiction about your works, I’d say you’ve made it. Be that as it may, let’s look at what is covered by the actual laws of the USA.

What is copyright?

“Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works” (5).

What does copyright protect?
“Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed” (5).

What doesn’t copyright protect?

“Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work” (6).

What about characters and fictional places?

Names are not protected by copyright, but a character or a fictional place – name and description together – could be protected by copyright (sources are conflicting) but may be protected trademark if the owner registered it, so using borrowed characters and places may be legally tenuous. To use a common example, Mickey Mouse is one of Disney’s trademarks, so legally the company could sue anyone using that character. 

What about Fair Use?

“…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors” (7).

A law firm called Morse Barnes-Brown Pendleton reprinted an article from Writer’s Digest that clarifies these four factors: 

1. “The purpose and character of the use. Certain uses, such as nonprofit educational use, non-commercial research, news reporting, criticism, satire and parody, receive wider latitude for copying. The key issue is whether the use is “transformative”—that is, as the Supreme Court wrote concerning 2 Live Crew’s “Oh Pretty Woman” parody song, whether the use transforms the original work into a new creation “with a further purpose or different character (8).”

2. “The nature of the copyrighted work. Fiction receives greater protection than nonfiction. This makes sense given that a main purpose of copyright is disseminating information to the public. Although unpublished works are also subject to fair use, the courts are very solicitous of the right of “first publication,” so any copying or paraphrasing should be done with caution” (8)

3. “The amount and substantiality of the portion used. …generally, if the user copies the critical heart of the work, this will often be considered unfair even if few words are copied” (8).

4. “The effect of the use upon the potential market for or value of the copyrighted work. Courts view this as the most critical factor. Quoting substantial portions of a work, such as the lines of a poem, provides the work to others without paying the author. On the other hand, creating a parody of the poem probably won’t diminish the market for it and so may be deemed fair use” (8).

In addition, there is fair use for trademarks, which comes in two types: descriptive and nominative. Descriptive simply means you can use a trademarked descriptive phrase (i.e. “Have it your way”) if it’s unconnected to the trademark (i.e. Burger King). Nominative fair use defends the use of someone else’s trademark or “mark” (i.e. name, slogan) under certain circumstances:

1. The product or service is not readily identifiable without defendant’s use of the mark
2. Only so much of the mark is used as is necessary to identify the product or service
3. The defendant did nothing to suggest the plaintiff’s sponsorship or endorsement” (9).

To sum all that up, basically your fanfiction is defendable if you

1. Can’t easily describe your “product” without the “mark” (i.e. name, slogan, etc)
2. You use the mark as few times as possible
3. You don’t claim affiliation, sponsorship or endorsement with/from the trademark’s owner and it’s not going to be confused with the owner’s product

Fanfiction often meets these requirements. But there’s also something to be said about messing with an author’s characters. Consider Anne Shirley’s reaction to her friend adding two lines in a short story so that it would win a contest put on by a baking powder company: “What do you think a mother would feel like if she found her child tattooed over with a baking powder advertisement?” (10). I myself can remember a time when my teenage self left the computer I was working on and returned only to find that my brother had messed with my story, altering random things, and particularly changing General Bardin’s name to General Burper. I was outraged, and only slightly mollified when I realized he had been smart enough to save the original separately. Sometimes, we just don’t like people messing with our literary babies. On the other hand, on the off chance I do someday publish the novel I was working on during my teens, I would not be opposed to some fan rescuing the characters that had to die in battle. I wish I could have done it without jeopardizing the story.

For one final question, is fanfiction moral? It can be thought of as stealing – stealing someone’s character, their plot, their ideas, etc. I would say it would depend on the intent. Is the intent to have fun? To defame the author and/or the original work? To make money? To learn? If the intent is to have fun or to learn, and if steps are taken to ensure the author and original work are not defamed but credited, and no money will be made off it, I see no issue. After all, a lot could be learned when one starts off with well-fleshed familiar characters and/or a completed world. I certainly learned a lot from attempting to emulate Tolkien in my Eowyn fanfic. Besides, once you let your story out, is it moral to curtail other people’s ideas about it and prohibit them from sharing their harmless joy with others?

To conclude, from a legal standpoint, there’s nothing stopping you from writing your fanfiction, though publishing it online might be dicey, and getting money from it is illegal, unless the work your story is based on is no longer in copyright. From a moral standpoint, I don’t see anything wrong with creating fanfiction that does not defame the author or the original work but credits both, again, providing that no money is made. From a creative standpoint, I think fanfiction is an amazing way to have fun, and to learn by borrowing other people’s worlds, characters and style. There are a lot of authors in favor (11), realizing it’s fun and helpful to writers, and it only helps them. So, if you’ve got some famous characters bouncing around your head, don’t be afraid to write about them. Have fun!

Notes:

1. tolkienestate.com/en/paths/faq/permissions-requests.html
2. baltimorepostexaminer.com/george-martin-game-thrones-licensed-fan-fiction/2016/05/29
3. mzbworks.com/faq.htm
4. news.bbc.co.uk/2/hi/entertainment/3753001.stm
5. copyright.gov/help/faq/faq-general.html#what
6. copyright.gov/help/faq/faq-protect.html#what_protect
7. copyright.gov/title17/92chap1.html
8. mbbp.com/news/know-your-copyrights
9. law.pepperdine.edu/competitions/moot-court/national-entertainment-law/content/briefs/2016/team-103.pdf
10. Anne of the Island by L.M. Montgomery, Chapter XV. A similar scene was played out in the movie adaptations in Anne of Avonlea.
11. fanlore.org/wiki/Professional_Author_Fanfic_Policies

If you want more detailed legal information on character copyrights, I suggest these articles:

• wikipedia.org/wiki/Legal_issues_with_fan_fiction#Arguments_for_the_legality_of_fan_fiction
• ivanhoffman.com/characters.html
• rightsofwriters.com/2011/04/copyright-in-fictional-characters-can-i.html 

If you’re interested in my fanfiction, it can be found through my website.