How Does Intellectual Property Law Apply to Fanfiction?

We live in a time when anyone with computer access can “write” a book.

Catherine Cavella, ESQ.

We live in a time when anyone with computer access can “write” a book. We use quotations here because much of the content you see online is now written by AI programs, which is just the latest in a line of many tools artists and writers have used over the years to enhance their work. In fact, some outlets expect more fanfiction (commonly referred to as “fanfic”) due to the advancement of AI.

As this becomes even more common, it prompts the question: How does intellectual property law apply? After all, fanfiction is merely using existing characters and stories and creating new stories with those characters, often within the same timeline as the original novel, to create another angle or view of the story. It can be a completely new story or the same story told from a different perspective or in a new way.

Ultimately, IP laws still apply—even if some fanfic writers have been blatantly violating these laws.

You Can’t Typically Sell Fanfiction for Profit

Copyright law protects artists from having their work copied, repurposed, and reproduced by others who wish to profit from the work of others. In the case of fanfics that use existing artists, characters, and storytelling elements, you are much more likely to get in legal trouble for copyright infringement if you attempt to profit off of the work (unless the characters being used are part of the public domain – but even then, be careful because trademark law might apply).

Almost all fanfiction you find online either will be available for free or has been officially licensed. However, some writers have successfully turned fanfiction into their own work by changing enough of the story and merely using the original as inspiration.

Copyright Law Still Applies—Even Without a Profit

What many people don’t seem to realize, however, is that even if you aren’t selling the work for profit, it is still possible to be held liable for copyright infringement. Copyright laws do give artists the ability to recover profits made by others off of their works, but damages can still be awarded even if the infringer made no money. 

Damages in copyright law can include the financial impact a work has had on the original. Is the fanfic interfering with sales of the original? Has the fanfic become so popular and notable that people prefer it to the fictional world the original author created, interfering with the author’s sale of sequels? Is the fanfic interfering with the original author’s ability to license the work for movies, books, plays, video games?  Is the fanfic using characters in crude ways that damage the reputation of the original work and its author?

Fanfic produced purely for enjoyment or educational purposes can still violate copyright laws, but authors are traditionally hesitant to sue their fans. Statutory damages (up to $30K or even $150k) can be collected even when there is no profit from the infringement.

When You Can Sell Fanfiction

Did you know that Fifty Shades of Grey started as Twilight fanfiction? Still, Stephanie Meyer, who wrote Twilight, has not received any royalties or licensed her work to E. L. James, who wrote Fifty Shades. This is because the Fifty Shades characters and storyline are merely derivative of those found in “Twilight” and have been reshaped enough to avoid copyright infringement. Another example of this is the Manacled fanfiction set in the Harry Potter universe that turned into Alchemised by SenLinYu.

Ultimately, all art is inspired by something and someone. There are plenty of original artists and creatives out there, but no matter how original they are, they would all be able to give you examples of art that inspired them to create. You would likely be able to find touches of inspiration in their work simply by comparing what inspired them and the end result, but these artists are creative and hardworking enough to start something of their own rather than riding the coattails of others.

That said, we acknowledge there is a place for fanfic. It can be a fun way for fans to connect with a popular franchise, such as Star Wars, Star Trek  or Harry Potter. Just be aware that whenever you are using the fictional world and characters of someone else’s creation, you are using, and very likely infringing, their copyright and likely also their trademarks.

So be careful! Seek permission, keep it to inspiration only, or, if you must, post in a fancentric place for free and be ready to take it down immediately if you get a cease & desist.

POWER YOUR IDEAS® with IP Works Law

Whether you’re an artist or author who is looking to protect your work from fanfics produced by others or you’re a fanfic artist looking for pathways to protecting your work, IP Works Law is proud to be a part of your IP journey. We work with creatives of all types to help them secure and defend intellectual property protection. Contact us today to POWER YOUR IDEAS® or sign up for the IP Works Law newsletter to stay in touch with IP matters that impact your work.