Fanfiction is a form of literature which is based on an existing work of fiction. This trait therefore classifies fanfiction as a derivative work. Most authors of fanfiction understand that their work is not original; most of these same authors also have not received permission from the authors of the original work to publish their fanfiction. Therefore, fanfiction is seldom published.
Regardless of whether a work of fanfiction is published, authors must nevertheless abide by all existing copyright laws in force. Failure to do so constitutes an infringement of the copyright protection over the original work. For this reason, there have been several legal controversies related to fanfiction over the years.
Fanfiction and Fair Use
Many disputes over copyright laws related to fanfiction have to do with fair use. Fair use is a concept which promotes freedom of expression by allowing the unlicensed use of certain copyright-protected works. Most works of fanfiction do not abide by fair use principles. For this reason, the publishing and distribution of such works of fanfiction constitutes an infringement of copyright laws.
There are certain instances in which fanfiction can be considered to abide by fair use principles. In most cases, examples of such fanfiction include works which are deemed to be sufficiently transformative of the source material.
Today, no country imposes any absolute laws related to fanfiction and fair use. Therefore, all legal cases regarding fanfiction and copyright are assessed on a case-by-case basis. Courts use general guidelines to reach rulings; this in turn leads to much ambiguity and various possible legal outcomes.
Distribution of Fanfiction and Copyright Laws
If a work of fanfiction is sufficiently transformative, entirely distributed online, and does not involve any profit-making activities, it can usually be legally distributed. Such works of fanfiction include those which have fundamentally altered the source material with regard to characters, concepts within the source material’s canon, or underlying themes of the source material. Furthermore, in such an instance, no one makes any money from the unauthorized use of elements of the copyrighted work.
On the other hand, works of fanfiction which are distributed by being sold for money are usually outlawed according to copyright regulations. Only fanfiction based on source material in the public domain may be sold in this way. This form of fanfiction comprises a relatively small portion of all available fanfiction.
The distribution of fanfiction which is printed in physical form violates copyright laws. This is because the act of printing the fanfiction is a commercial act involving a financial transaction; even though the fanfiction author might not make a profit out of the physical copy, other entities do.
Fanfiction and Creator Permission
Certain creators of original content might allow fanfiction based on their work to exist. They often believe that fanfiction benefits them as well because it allows the popularity of their original work to spread. By granting permission in this way, the creator of the original copyrighted content thus legalizes all fanfiction as well as its distribution based on that original content.
In situations in which the original content creator has not explicitly stated a stance on fanfiction, authors of fanfiction are advised to seek permission from the original content creator. This is especially necessary if the fanfiction author intends to distribute this fanfiction online. Some original content creators are particularly protective of their rights provided through their copyright; they forbid all instances of fanfiction as well as fan-created content based on their work.
Copyright Laws and Publishing of Fanfiction
The publishing of fanfiction in an unauthorized manner is generally an infringement of copyright laws. However, it is possible for such works to be published within legal boundaries. Fanfiction which has had all copyrighted elements retroactively removed may be published without any legal consequences. This is because the fanfiction would no longer be recognizable as a derivative work.
The legality of published fanfiction is often determined by the substantiality of the copyrighted content used in relation to the source material. This means that the less of the copyrighted material in the fanfiction, the more likely that the work of fanfiction may be published. Legal cases involving the publishing of fanfiction are usually judged on a case-by-case basis.
This article is brought to you by Exy Intellectual Property Malaysia and Singapore.