Navigating Fan Fiction, Public Domain, & Fair Use

By now, nearly everyone knows what fanfic is. What was once the realm of only the most devoted followers of certain books, shows, or movies is now public knowledge, thanks in large part to the success of 50 Shades of Grey, by E.L. James, which was originally fan fiction based on the immensely popular Twilight series. But when the author decided to take her sexy writing mainstream, she needed to be aware of the legalities facing fanfic writers.

We’ve talked before about fair use and how you can safely reference characters, books, movies, or products in your fiction. But what happens if your entire work is based on someone else’s world and you want to make money?

The safe answer, obviously, is to do what E.L. James did. Retool your fanfic to take place in a different world and use different character names and identifying characteristics. Basically, you use your fanfic as an outline to write a new piece of original fiction. This method is even recommended by some writing teachers who suggest writing stories set in an established world, like Harry Potter or Star Trek, to focus on characterization, pacing, and other fine points without having to worry about developing a complete and consistent world of their own. Baby steps!

Commercial Use

So how do you protect yourself and still share your work? It all comes down to common sense. Even if the fandom you’re working in is generally in the public domain, certain characters and situations may still be under copyright and therefore not available for your free use; that’s the case with Tarzan and Sherlock Holmes. The stories are now public domain, but the characters are copyrighted by the original authors’ estates. You can apply to the estate to use the characters in your stories, and the fees typically aren’t too high. Be aware, though, that the estates may want approval of your topic to make sure that the characters aren’t being used in a way they think runs contrary to the original spirit.

You may want to consider writing for Kindle Worlds, which allows certain fandoms to publish derivative work for sale.

Most modern franchises, however, guard their rights jealously.

Plagiarism (The Flip Side)

What if you’ve researched your favorite author’s stance on fanfic, found out that the author doesn’t mind (certain authors, most notably Anne Rice, despise fanfic and are active about taking it down, whereas others tolerate or even encourage it), and put your work of creative derivative genius online…only to find out a month later that someone else has lifted huge parts of your writing and is passing it off as their own?

That’s certainly a sticky situation. Because you based your work off someone else’s copyrighted material, you’ve technically made an unauthorized derivative work. You don’t legally hold the copyright to your writing in this case because you’ve violated someone else’s copyright to make it. That means you can’t claim copyright infringement if someone steals your writing. You also can’t issue a Digital Millennium Copyright Act (DMCA) takedown notice as you don’t have the copyright to that work. Still, just because your work is a derivative doesn’t mean that it’s OK for someone else to plagiarize you.

If you do find that someone’s plagiarizing your fanfic, the first thing to do is to take a screenshot of the posted plagiarized work, preferably one that shows the date it was posted. Pair this with a screenshot showing when your own work was posted (which should be well before the plagiarism). Send these images to the person who posted the plagiarized work, calmly explaining that you wrote the work first and that you’d appreciate it if they would rewrite or remove the offending passages or pieces.

If they don’t respond, are hostile, or otherwise uncooperative, send copies to the site moderators or admins where the plagiarism is hosted, explaining the situation. Typically, fanfic site mods are very helpful and keen on keeping their communities honest and supportive. If you have solid evidence that your writing has been copied and reposted without your permission or approval, they’ll usually help you get the offending work removed.

Be prepared for some backlash. People who plagiarize on purpose aren’t the nicest, and you might get some hate mail for daring to protect your rights. But don’t back down. Just because your work is based on someone else’s original world or characters doesn’t mean that you didn’t spend a lot of time, energy, and creativity on your fanfic, and you should be proud of your work and able to protect and share it.

Kate S.

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