The Legality of Fan Fiction on the Net

Fan fiction is prevalent on the Internet, but is it legal? It turns out that’s a really interesting question. For the great majority of what is available, the answer is no. ISP’s that distribute these files and the authors of unauthorized works can both be liable for copyright infringement.

What is fan fiction? Well, fan fiction is generally defined as an amateur-written story that is either set in the same setting as a popular work and/or it involves characters from a popular work. For example, “Star Trek” fans have been writing fan fiction, telling their own tales of Kirk, Spock, and McCoy, for years. Some fan fiction tends towards the mature, with what are called “slash” stories – the characters separated by the slash in the title of the work are almost guaranteed to be getting it on “hot and heavy” someplace in the story. (Some people apparently really like reading Kirk/Spock or Worf/Troi stories. Go figure.) Almost any popular work could be the subject of fan fiction, from X-Files, to Lord of the Rings, to Desperate Housewives.

So what’s the problem? Well, first and foremost fan fiction is almost always never authorized by the holder of the copyright in the work. Most of these stories are classified as an “unauthorized derivative work” and are therefore an infringement. A derivative work is one that is based upon one or more preexisting works. The right to create derivative works is one of the exclusive rights given to the copyright holder pursuant to statute. Infringers of federally registered works can be subject to monetary damages, including statutory damages which can range from $750.00 to $150,000.00 per work in the case of willful infringement. Plus, attorneys fees can be awarded by a judge in certain cases.

Now, some copyright holders are fine with fan fiction, on the theory that it boosts sales of the authorized works or otherwise keeps the authorized works alive in the imaginations of the fans. Those copyright holders are few and far between. The great majority of fan fiction existing on the Internet is still there only because it’s not cost effective for the copyright holder to sue each and every infringer. That is why some copyright holders are enamored with sending Takedown Notices under the Digital Millennium Copyright Act “DMCA”) – see my earlier posting about these notices. They’re cheaper than a lawsuit and relatively effective. They also send a lot of cease and desist letters that threaten further action. If an infringer is deriving any economic benefit from the infringement, including selling advertisements on its website, that could be enough of a commercial use for some copyright owners to make enforcement more likely.

These are really fact specific issues. If you are involved with producing or hosting fan fiction, I would strongly encourage you to consult with an attorney. If you are an author whose work is being infringed online, I also suggest consulting an attorney you trust to discuss what options are available to you. For more on the topic, I also suggest reading through the Chilling Effects Clearinghouse website, and their excellent FAQ list on fan fiction.

Leave a reply