Fanfictions are stories created by amateur writers. The stories are based on the work of others. These writers borrow familiar characters and story elements and then they bind them together, in a new imaginative story. Mainly these stories are created by fans of existing characters from movies, TV shows, novels, etc.
With the advancement in technology, the popularity and quantity of fan fiction has gradually increased. Easy access to the internet has played a great role in it. Now, it becomes easy for fan fiction creators to explore, create, and publish it. It’s mainly wrote down to recreate characters of the fictional world and their stories. They are generally published and shared online.
But this popularity of fan fiction has not only attracted the readers, but also the legal consequences. Now, liabilities can be imposed under Copyright Law and Trademark Law, in case of its infringement by fan fiction writers.
A person having copyright ownership, has a right to prohibit anyone from copying, distributing, performing, modifying, or displaying the work or characters in the copyrighted work without his/her permission, or creating “derivative works” of the copyrighted work. [1]
“Derivative Work” is a work, which is based on someone else’ copyrighted work. Fanfictions may be put into the category of derivative works because they make their storyline by using copyright-protected characters from someone else’s creation. Due to this reason, copyright owners often get offended, as fan fiction is created and posted online.
Even after the copyright in the work has expired, the moral rights of an author empowers him/her to take against any distortion, mutilation of his copyrighted work. Fanfictions can affect the moral rights of an author, if created work distorts or mutilates the original work or the reputation of the author.
‘Trademark’ is any word, name, symbol, or device, which is used by a person, to identify and distinguish his goods, from that of others. This trend has started by authors of various books, novels, and movies. They have started registering their characters as trademarks. The authors having a trademark on their creation, have the exclusive right to use or to license the mark, to avoid confusion among customers and to refrain others from making a profit out of the owner’s intellectual property.
Fanfiction is generally created using famous characters from movies, novels, etc. This can attract liability under Trademark dilution. Walt Disney used this concept, to stop pornographers from using Snow White or Sleeping Beauty, in their works. In addition to other intellectual property violations, the writers of fan fiction can also hold liable for Trademark Dilution, if they make available their work to the world for commercial purposes.
Fanfictions can be used as a fair means, under the Copyright Law, because:
- The importance of original work didn’t lose by the copied work.
- They not only promote the original work, but also create awareness of the original one.
- Fanfiction writers usually don’t work for profit. They didn’t intend to have commercial benefits.
- They didn’t compete with the market of original ones.
Fanfictions can be exempted from copyright infringement, if they proved to be a fair use, under Copyright Law. There’s four steps analysis:
- Purpose of work: It’s generally created by fans, to experiment with the characters and story plot.
- Nature of work: They don’t usually work for a profit.
- Amount of work copied: The famous characters are used in completely different horizons of adventure, in fan fiction.
- Effect on the original work: They usually don’t attempt to compete with the original work.
Fanfictions are healthy, as they give opportunities to amateur creators to create a world out of their imagination. As a coin has two sides, likewise, many authors promote it, while on the other hand, many dislike it, by considering it lame practice. J.K. Rowling, a famous author, has said, “I find it very flattering that people love the characters that much.” Unlike authors such as Anne McCaffrey or Anne Rice who discourage their fans to write on their books and also asked the fan fiction sites to remove all stories, related to their work.
However, the biggest concern of authors of original work is that fan fiction shall remain a non-commercial activity.
In the case of Warner Bros. Entertainment Inc. & J. K. Rowling v. R D R Books[2], here the defendant was sued for copyright infringement, as he attempted to publish the print version of his online Lexicon, which was based on J. K. Rowling’s bestseller Harry Potter series. The plaintiff’s argued that the defendant published it for profit and therefore, it was not protected by the defense of fair use.
The plaintiff contended that she wanted to write a similar book and the publication of this encyclopedia before her original work will affect the motive behind its formation, as she plans to give that to charity.
The Court held that “Plaintiffs have shown that the lexicon copies a sufficient quantity of the Harry Potter series to support a finding of substantial similarity between the Lexicon and Rowling’s novels.”
This case clearly shows that fanfiction can’t be tolerated, when they work for commercial benefits.
Intellectual Property Rights are granted to promote innovation and creativity and to encourage the creators, to create more. Fanfictions are creations by amateur writers, who if given opportunity, may create something good in the future, therefore lenient and balanced approach must be taken towards them because we can see that fan fiction writers are walking on thin ice.
References:
[1] Sec. 14 of the Copyright Act, 1957
[2] 575 F.Supp.2d 513 (SDNY 2008)
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