Some books and movies are so moving or interesting that people like to image what happened before or after the book or movie took place. When this occurs, people write books that follow on the books or movies, known as fanfictions.
Fanfictions can be high-quality labors of love written by people who possess an encyclopedic knowledge of stories and are often shared with others.
The problem with fanfictions is that they rely on legally protected works (the original book or movie). By writing stories featuring someone else’s characters is treading on risky legal ground.
If a thing is in the public domain then it can be used freely in any work. This includes characters such as Robin Hood, Hercules, and Tarzan (which is why there are so many movies and books starring these characters).
There are several ways a story can enter the public domain, the author could give up their rights to the work or the copyright could have expired after enough time passes. For example, in the US an author retains their rights over a work for the entirety of their life, plus the 70 years that follow their death. If the work is published anonymously or for hire, the rights last 95 years from publication or 120 years from creation (whichever is shorter). This varies from country to country but is generally the norm.
There are many public domain characters who are famous because of facets added by later works. For example, Universal studio made Frankenstein's monster memorable by adding their unique take on the character and Disney took public domain stories like Aladdin and made the character come to life
This means that you can write about Aladdin, but if you add some catchy songs a funny genie and a smart monkey you are encroaching on Disney's copyrights, and Disney will almost certainly come after you.
The only way to tell which aspects of an existing character aren’t public domain is to do your research. However, if you work solely from the original material and add your own character inventions, you’re likely okay.
In most countries (including the US), authors have copyright over their creations. Copyright gives the author the sole right to create derivative works (works that rely on the original material).
There are three ways fan fiction writers may still be free to use copyrighted elements for derivative works, but note these are exceptions to the rule and you still need to be careful before proceeding under these exceptions.
1. Parody and satire
Authors are allowed to use derivative elements of a work in order to parody that work. The extent to which a work is a valid parody is based on how ‘transformative’ the new work is in relation to the source material. If a parody is found to transform the copyrighted aspects it uses into something new, then it’s likely to be a legal parody.
A satire is different than a parody because a satire is a more general critique of the work and is not unique from the original source it is critiquing. Satires have limited protection under copyright law and you have to be much more careful when creating a satire.
2. Fair use
Fair use is a provision made for authors so that some aspects of copyrighted work can be utilized for further creativity and is a legal use of the original work.
Fair use considers four conditions:
- the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
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 fanfiction is a new story that does not adversely affect the original work, then you should be legally protected. Fair use often depends on how much of the original work you used and whether you are selling your work. Typically, as long as you don’t intend to sell your work or offend the writer, many copyright owners are happy to allow fan fiction to flourish.
3. Author permission
Because fanfictions often come from dedicated fans, many authors are happy for fan fiction to exist. Authors such as J.K. Rowling have publicly stated they do not have a problem with derivative works (with caveats). J.K. Rowling has stated that she does not allow pornographic fan fiction starring her characters. However, other authors like Anne Rice have zero tolerances policies for fanfictions. If you go ahead with a fanfiction do your research and be respectful of the author’s wishes.
Practicality vs. Legality
Copyright law is designed to protect creators financially while allowing as much further the creative processes where possible and most authors are friendly to fan fiction writers. Be respect of any wishes the author have expressed for the source material. In all fanfiction cases, it’s a good idea to begin with a disclaimer identifying the author of the source material.
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