Is fanfiction copyright infringement?


#1

As fanfiction basically uses copyrighted characters without permission, is it technically illegal?

If so, do you think that Wattpad would be liable for hosting a fanfiction genre in its story listings?

Just curious.


#2

Yes, it’s illegal. Would Wattpad be liable? Eh, probably not.

–Wattpad’s T&Cs likely state that when you post something you are claiming that you are the owner and have the right to post it.

–YOU would be liable if yo posted it.

–Wattpad has the bigger pockets, though, so if someone wanted to make a stink they MIGHT go after Wattpad as well. Not likely, though.

Fanfiction is generally tolerated by the creative world. If someone doesn’t want fanfiction (or just fanfiction of a certain type), they usually send a takedown order, and leave it at that.

Here’s the thing though: They don’t have to leave it there. They CAN sue, and they WILL win.

I’ve heard of that happening with photos (not on Wattpad):

I’ve never heard of it happening with fanfiction unless the writer was stupid enough to post it for sale on Amazon.


#3

Fanfic isn’t illegal. Fanfiction is defined as “Any fan producing writing that uses, remixes, or subverts existing fictional worlds to create unique stories”. Otherwise Wattpad wouldn’t have 296K fanfic stories uploaded.
Wattpad has the Fanfic profile.

I suggest that you have a look at this-

https://www.wattpad.com/story/30767512-how-to-write-fanfiction

Hope this helps =]


#4

Who the hell knows? I wouldn’t post fan fiction for a number of reasons. Even if you come out on top in court (and it would probably be for a trademark issue in addition to copyright), you’re out thousands in legal fees. Don’t feed the lawyers: those signs should be posted everywhere.

There are so many other great things a keen mind can focus on, so many other original ideas and great stories to be told.


#5

Interesting. I was just reading about “Fair Use”. Sometimes fanfiction might qualify for this exception, but one of the legal sticking points has to do with whether anyone is profiting from the work. Here, on Wattpad, it’s probably safe to say that the fanfic writers are not making any money from these stories, but Wattpad does cash in on that content, using it draw more users/readers (traffic) and thus revenue from advertising.


#6

Think of it this way: If it’s not illegal, then why can’t it be published? Why did Kindle Worlds have to exist if not to provide a way to license fanfiction?

Does Fair Use apply to fanfiction? That isn’t clear, and regardless it would be on a case-by-case basis, and it would be determined in arbitration. If you want to pony up the bucks to fight that legal battle, feel free! Fair Use isn’t a defense that will keep you out of court; it’s an argument you can use IN court.

http://inyourwritemind.setonhill.edu/yes-fanworks-are-illegal-harsh-truths-about-copyright-fair-use/


#7

Let me add – I adore fanfic. I read it. I write it. I learned to write writing fanfic as a teen!

None of that makes it legal to take someone else’s work and use it in your own.


#8

Yes and no actually. Fanfiction is…a bit tricky. Sure the author can sue for using their characters but can we also focus on cover dance, song covers, and fanart. Now those are also kind of a gray area with fanfiction because 1. you’re using them when it’s not yours but 2. you’re not exactly copying but made your own style and flair to it.

In fact, we would have been in trouble maybe for using a simple ‘Happy birthday’ song to our own style I guess https://www.hollywoodreporter.com/thr-esq/warner-music-pays-14-million-863120

Overall, if your story wasn’t exactly copying the author’s story word for word or exact plot but made your own different version of plot then it’s not illegal. I don’t know many of the law and not a lawyer either but this is how I see to it.


#9

Yes, it’s copyright infringement (unless the original story is old enough to be out of copyright). No, you won’t get sued for posting it unless you try to make money from it, or the copyright owner has specifically said they don’t want people writing fanfiction of their work. Most copyright owners are smart enough to know that headlines like “Millionaire author sues biggest fan” don’t make for good publicity.

You could make a case that websites that allow users to post fanfiction are profiting from copyright infringement (if they show adverts next to the stories), but they’ve been getting away with it for 20 years or more, and I’ve not seen any indication that any copyright owner wants to go after any of them.


#10

No. Truly. You can’t take another creator’s universe and characters and do with them as you see fit. You really can’t. Not LEGALLY.

If it were legal, you could publish it. Try it and see how far you get before you’re sued.

Seriously, fanfiction exists because creators CHOOSE to take it as a compliment and turn a blind eye, not because it’s legal.

Or, look at another world – TV and film. Think about spin-offs and reboots. Think studios do that at a whim? They pay a FORTUNE in licensing rights to be able to do that (unless, of course, they own the rights to the universe already). That’s because the entire universe of those characters belongs to whoever owns the original property.


#11

Well I agree with that but are we also agreeing that song/dance covers and fan art also illegal since they’re using without permission?


#12

Musicians who record cover versions of songs usually get permission and pay royalties to whoever owns the song. Though in some countries there’s a thing called a “compulsory license”, where you can tell the owner you’re going to be selling your version and pay them royalties at the rate set by the relevant law.


#13

Yep. They’re illegal. Here’s a lawyer’s explanation of the legalities of song covers:

And here’s one on fan art:


#14

BTW, do you know why you don’t hear covers of the Beatles music? It’s because Michael Jackson purchased it all and wouldn’t license it. That’s why you don’t hear covers of certain artists on American Idol too. The contestants can choose only the songs that the show can license.


#15

Here is an article on classic books which are essentially fanfiction

Fanfics are nothing new haha, but we are living in an age where copyright is a much bigger issue than what our ancestors worried about.

Personally, I think fanfiction is a wonderful challenge for writers when it comes to world and character building, and continuity. So many writers will allow their characters to have personality transplants, and brush it off by saying “oh, it’s my character, my book, my rules. I know them better than anyone, I created them!” with fanfiction, your reader already knows that character, and they know that they would never say or do that thing. They know the world you fail to capture, and you have no room for excuses.
For those reasons, it’s a wonderful thing to shape you as a writer, but it is very much illegal when it comes to publishing.
There are ways around it. It is legal to mention a brand/musician/book etc. as long as it doesn’t harm their reputation. I’ve seen a few self-insert style books published whilst mentioning a character’s obsession for pride and prejudice or whatever, that follow very similar styles as some fanfiction.


#16

Fan fiction is not new but because it’s inspired by original work, the artist can technically sue.

I know Anne Rice and Diana Gabaldon will sue if they find fan fiction, which is hilarious for Diana because it started out as Doctor Who fan fiction, soooo… :tipping_hand_woman:


#17

There’s a thing called Fair use.

Fair use considers four conditions:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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.
    17 U.S. Code § 107 – Limitations on exclusive rights: Fair use

Melding these factors together reveals two big deciding questions on whether fan fiction is legal a) is it transformative rather than derivative (i.e. are you telling a new story or just retelling someone else’s)? and b) what is the effect on the original work’s value?

If your story is a new story set in the fictional world, or using the characters, and it doesn’t adversely affect the existing work, then you should be legally protected. This would still depend on how much of the original work you used and would ultimately come down to a legal decision (many writers would consider going to court for this decision too much trouble).

Unfortunately this protection is less present if you’re selling your work. This is seen as creating a form of competition or trading on the original’s reputation, thus adversely affecting the original.


#18

Authors such as Neil Gaiman, J.K. Rowling, D.J. Machale, and Terry Pratchett have publicly stated they do not have a problem with derivative works, however often with caveats. Rowling, for instance, has stated that she does not like pornographic fan fiction starring her characters, and Pratchett is happy to allow fan fiction writing so long as he is not forced to encounter it:


#19

The problem with Fair Use is that it doesn’t stop you from being sued. It’s a defense in the court room, and it’s decided on a case-by-case basis. That means you still have to have the bucks to defend in court.


#20

And they will be out millions of dollars in money from fans that will never buy their work again.

Why do you think Square Soft never sued anyone? Because it’s literally career suicide.

And frankly, I don’t give a crap what a studio thinks, because these days there are enough idiot that will treat using any brand image as “copywrite infringement.”

I’m reminded of the moron on Twtter, that kept barking out “Don’t use brand names in your fiction.” That’ not a writing rule, don’t treat it as one.

http://adrianroselli.com/2011/07/more-frivolous-patents.html