- “Fanfiction authors don’t own anything about their stories. Fanfiction cannot be copyrighted.” – Sorry, guys, it’s not that simple.
- Derivative or Transformative – The distinction that makes all the difference
c. The Case of Twilight and Fifty Shades of Grey – Derivative or Transformative?
- Is all source material copyrighted?
a. Test: Sufficiently Delineated characters
b. Test: The “Story being told”
c. The Problem with Character Copyright
- So what if the source material/character is copyright protected?
- What does fair use mean?
- Can authors such as Anne Rice or Marion Zimmer Bradley forbid fanfiction?
- What about another fan stealing my story or republishing it without my consent?
a. Why do people still claim they have the right to take a fanfic because the author doesn’t have any rights to the story?
- So what can I do to protect myself and my stories?
If you are a writer or reader of fanfiction, or are simply active in online fandoms or online communities, you have surely come across the debate concerning fanfiction and its supposed missing copyright protection. These online debates are scarcely filled with actual information, but rather an abundance of opinions disguised as facts. Many involved debaters seem to draw their info from their own set of morals, and argue on the basis of what SHOULD be law in their opinion instead of looking at what we are actually dealing with.
Since I myself became victim of not only plagiarism, but also copyright infringement several times last year, I decided to tackle the issue the way it makes most sense to me: by getting information. Not from the internet—instead I did a quick research for actual published works in the field of legal and cultural studies by professionals.
From my own master’s degree in cultural and literary studies, I know that fanfiction has been heatedly debated in several academic fields for almost a decade now: usually in the realms of cultural and literary studies. So, I figured, if cultural scientists write papers—and whole books—analyzing fanfiction and its cultural impact and significance, there have to be works that analyze the legal standing of fanfiction from a copyright perspective.
And I was right. I stumbled across Aaron Schwabach’s book “Fanfiction and Copyright – Outsider Works and Intellectual Copyright Protection”. Schwabach is a professor of law at the Thomas Jefferson School of Law in San Diego, California. One of his focus points is intellectual property. So his work provided an excellent starting point, for I knew I was dealing with a law professional who knows what he’s talking about. Which, in my world, is leaps better than dealing with opinionated people online who base their arguments on wishful thinking or obscure sources (“a friend of a friend” and so on).
Luckily, my university library was able to order his book from another library, since purchasing it from amazon (even the Kindle edition!) would have cost over US$100. So shout out and major credit to Free University of Berlin here, without whom I wouldn’t have been able to get my hands on the book.
I won’t summarize his book in detail in this article—because that would a) come close to plagiarizing and b) be way too extensive. I will only give a general overview to give you an idea of the rights you enjoy as a fanfiction author.
But if you’re interested in the legal standing of fanfiction, I also encourage you to try to obtain a copy of Schwabach’s work. It will give you a detailed overview of the legal situation, including a number of real life examples from fandom. Schwabach elaborates on most issues and details a lot of court cases already fought. He also takes into account previous court decisions and argumentations when deciding what infringes on copyright and what doesn’t.
1. “Fanfiction authors don’t own anything about their stories. Fanfiction cannot be copyrighted.” – Sorry, guys, it’s not that simple.
If there’s one thing, Schwabach makes abundantly clear right at the beginning of his book, it’s that the question of whether a work of fanfiction does belong to its author has to be answered on a case by case basis. There is simply no general rule, although it’s fair to say that most authors have more rights than they think.
Many factors play into what kind of protection a work of fanfic enjoys, the most important one being whether your work is a derivative or a transformative.
2. Derivative or Transformative – The distinction that makes all the difference
Even though most fanfiction would probably be classified as derivative in the literary sense, Schwabach immediately points out that the literary definition and the legal one differ vastly. In fact, he states that most fanfiction falls into the category “transformative”, and goes on to claim that “much or even most fanfic is probably not copyright-infringing”. (p. 15)
It’s important to keep the vagueness of his statement in mind (“probably not infringing”), though, because it again makes clear that a general rule simply cannot be given: the decision has to be made on a case by case basis. So what’s the difference between derivative and transformative?
In order to define what exactly a “derivative” work is in the legal sense, it makes most sense to look at Section 101 of the U.S. Copyright Act, in which the term is defined:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. (Source. Underlining added by author of this article.)
Even though the underlined part may, at first glance, seem to include most fanfiction, in reality the boundaries are not that clear-cut. Which is why there is even such debate about what kinds of protection a fanfiction has, and who owns its rights. Legally, courts usually define adaptations or translations as derivatives—meaning material that’s basically an exact retelling of the original source.
We can already see that fanfiction differs wildly from a mere adaptation, since very few fanfic actually retells the story of the original material. Schwabach sums it up quite nicely by stating that
“Fanfic rarely infringes by direct imitation of the work; that would defeat the purpose of fanfic.”
He lists a number of examples from previous court cases which make abundantly clear that courts and judges have a much narrower definition of derivative than literary critics.
Especially in cases where a fanfiction adds aspects to the story that aren’t present in the source material, or changes existing aspects (example: turning a heterosexual character into a homosexual in a fanfiction), it would legally fall under the category transformative rather than derivative.
What makes derivative works somewhat problematic is mostly §106 (2) of the U.S. Copyright Act, which states that
[…] the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: […]
(2) to prepare derivative works based upon the copyrighted work; (Source.)
That does indeed mean that the copyright holder of the original material does own all the rights to the derivative as well.
But transformative works do not fall under this paragraph. Which means that the copyright holder of the original material does not own any rights on transformative works created based on his or her original material.
Transformative works are not derivative in a legal sense. Schwabach gives an example of a transformative work on page 67 of his book where he states,
“A retelling of the events in “Gone With The Wind” from the point of view of a slave may be transformative, even though the characters, settings, and many of the events described are the same; the dramatic viewpoint shift, and the recasting of the relationship between the characters, make the retelling a new, original work, commenting on and critiquing the original.”
He draws this information from a specific court case between Suntrust Bank and Houghton Mifflin Co., where the transformative work in question was Alice Randall’s novel “The Wind Done Gone”.
We can see how the above example would be considered transformative rather than derivative, since it adds new aspects of the personality of the slave—along with a distinct voice and new way of storytelling—that take the novel away from being a mere derivative (adaptation or retelling of the original).
Now keep in mind that in the literary sense, a book like “The Wind Done Gone” would still have to be considered derivative. The same can be said for most, if not all fanfiction. As Schwabach puts it:
“All fanfic is derivative in a literary sense; in order to be fanfic, it must include enough elements of the underlying work to place fanfic within the fandom. Most fanfic, however, is not derivative within the meaning of section 106(2). A steamy Harry/Draco romance, a trailer for a nonexistent “Lockhorns” movie, a video using original music and clips from the Lord of the Rings movies to show Gollum as a hip-hop star—all of these things actually exist, and are all substantial transformations of the original work.”This content is property of http://www.kimberley-jackson.com.
So does that mean that all fanfic falls into the category transformative? On the contrary. Especially fanfiction that stays very close to its source material unfortunately moves into the realms of derivative rather than transformative.
If you write fanfic about a canon couple (such as Castle and Beckett from the television crime show Castle for example) you are more likely to be derivative, unless you significantly change the circumstances under which they meet or aspects of their relationship and character. Putting Castle and Beckett into a BDSM relation for example would be such a drastic transformative change that adds aspects not seen in the original canon material. The closer you stay to canon though, the more likely your story is to be derivative.
So called AU (alternate universe) stories are the closest to transformative you can get. In short: the more you change the original material to incorporate new aspects, plots or even altogether different settings, the more likely you are to be in the realms of transformative.
But even stories that remain very close to their source material (for example missing or extended scenes) can be transformative if they introduce new aspects to the characters that are not written or implied in the original material.
Hardly any fanfiction just retells the exact happenings from its source—what would be the point in that?
However, it’s important to remember that the borders between derivative and transformative are not clearly defined. Therefore, it’s best to move on the side of caution. I strongly advise against trying to get your fanfiction published for money unless it is so significantly different from its canon material that it cannot be recognized anymore.
c. The Case of Twilight and Fifty Shades of Grey – Derivative or Transformative?
I think after the above listed arguments and examples, it’s crystal clear that Fifty Shades of Grey cannot be considered a derivative work in the legal sense. Even though the main characters Anastasia Steele and Christian Grey may be loosely based on Bella Swan and Edward Cullen, the rest of the stories have practically nothing in common, and similarities only exist in aspects that cannot be copyrighted.
The aspect of BDSM is completely absent in the original, “Twilight”, as are all the conflicts that arise from it. While Twilight is a story about the love between vampires and humans—with a clear Romeo and Juliet theme—“50 Shades of Grey” is the story of a poor college girl meeting a dominant, brooding billionaire—a Cinderella theme.
It’s true, those who know both works may detect some vague similarities between the characters—especially in the looks of Anastasia Steele. But aspects such as character looks or traits in fiction are too vague to be copyrighted. If you could copyright character looks, we would have about as many stories as there are variants in hair color, because then authors would run out of legally usable characters.
In the worst case scenario, “50 Shades of Grey” would be a transformative, which still leaves all rights for the BDSM romance with E.L.James, since creators of the original materials hold no power over the creation of transformative works—as explained in the section above.
I would argue (and this is my personal opinion and analysis as a literary scientist) that plot, themes and conflicts are too different to consider 50 Shades of Grey even a transformative work. It’s true, James may have originally written a fanfiction starring Edward and Bella, but the fact that she could simply rename the characters and have a completely unrelated, new story works against the argument of “50 Shades of Grey” being a transformative work. Most people don’t even recognize it as related to Twilight until they are told that it used to be a Twilight fanfiction. (For a further analysis, please look at the article regarding Myths about Plagiarism in Writing that I published a couple of months ago, where I provided my personal comparison of “Twilight” and “50 Shades of Grey”.)
What’s more, character names cannot be copyrighted. So if you write a story where character names are all it has in common with its canon material, you’re moving on pretty safe ground legally. As you can see, though, it still won’t protect you from the wrath of jealous and envious fans. ;)
Of course I have heard from other people who fiercely disagree with me on that matter—though I have hardly heard any sound arguments that were NOT influenced by obvious jealousy and envy about James’ success, or anger about her misrepresentation of BDSM. The latter is certainly a valid point, however it’s entirely unrelated to the question whether 50 Shades of Grey should be considered transformative or not. Literary quality is not a defining factor in this issue.
And last but not least the fact that, to this day, Stephenie Meyer has not sued E.L.James, although both authors’ could certainly afford a lawsuit, seems to conclude the argument definitively. On the contrary, Meyer has repeatedly spoken out defending James, and doesn’t seem to take offense that the story started out as fanfiction with its main characters called Edward and Bella.
When asked in a 2012 MTV interview what she thought about the fact that without “Twilight”, Fifty Shades might not exist, she answered:
“It might not exist in the exact form that it’s in. Obviously, [James] had a story in her, and so it would’ve come out in some other way.”
And that should solve the case once and for all: “50 Shades of Grey” cannot legally be considered a derivative of “Twilight”.
Author’s Note: I seriously can’t believe I just spent over 600 words defending 50 Shades of Grey. ;)
3. Is All Source Material Copyrighted?
It may come as a surprise to most of you (I know it sure as hell did to me), but not all material out there in books or on television is actually copyrighted. Sometimes even characters don’t enjoy copyright protection—which means, you can use them without committing copyright infringement.
In order to understand the legal situation for your own story, the first step would be to examine the underlying source material and ask whether than material (or rather the aspects you used) are even protected.
Schwabach mentions two kinds of tests which have been applied by judges in the past to determine whether a character enjoys copyright protection. Obviously not every character is protected. Character names are protected even less. These names can be trademarked, but not copyright protected, which is a major legal difference.
But when is a character “original” enough to enjoy such copyright protection?
a. Test: Sufficiently Delineated characters
Schwabach lists Tarzan and Mowgli as examples for characters who are sufficiently delineated to be copyright protected. Sufficiently delineated means they have been developed and described enough for them to be truly original and recognized in a broad cultural context. And if you are familiar with the stories, you can see why.
Another example of a sufficiently delineated character might be James Bond. Especially lines and details associated with him, such as his “martinis, shaken not stirred”, help to define the character as a very unique one. The case of James Bond would be interesting to examine further since the movie franchise and the original novels by Ian Fleming, upon which the movies were originally based, differ immensely in the way they portray James Bond.
But all of the above are highly recognizable characters who somehow stand out—even though upon closer analysis, Schwabach himself concludes that
“we are left with nothing that makes Tarzan unique but Judge Werker’s circular conclusion: “He is Tarzan.” (p. 28)
Which, interestingly, seems to bring up the factor of cultural significance of a character. Tarzan has become a cultural icon in most Western cultures, and has thereby become recognizable. Tarzan was also one of the first characters of his kind, which might play an additional role.
Nowadays, it’s extremely hard to invent a character that has never been in some way, shape or form written before. Furthermore, genre fiction often relies on certain character “stereotypes” without which a genre won’t work: think of the genre romance or erotic romance. There’s a certain type of hero required to make the story work: usually ruggedly handsome, often brooding or dark, usually upstanding and just—but never an unredeemable scoundrel. If you go into deeper analysis, you could even make the argument that many heroines are similar as well.
So what makes characters like that stand out? If Pride and Prejudice were written today, would Mr. Darcy and Lizzy Bennett enjoy the same iconic status even though they are not different from countless romance characters that came afterwards. Their unique standing is the result of them being among the first ones of their kind, and so they have become recognizable.
b. Test: The “Story being told”
There’s another test that has been applied in the past to determine whether a character enjoyed copyright protection: the “story being told” test. It’s important to notice that this test is applied less frequently nowadays, because it exempts a lot more characters from copyright protection than the sufficiently delineated test would.
In essence, the judges look at the original material to determine whether the plot revolves around that character, or whether that character is just an (interchangeable) means to tell the main story.
Here’s my own example: in the case of Buffy the Vampire Slayer it can be argued that the entire story (as the title indicates) is indeed the story of Buffy. Therefore, the character “Buffy” should most likely be copyright protected. Additionally, the character has become somewhat of a cultural icon, especially in the field of gender studies.
But what about Stargate SG-1? SG-1 is a team name, so are the characters composing that team (Jack O’Neill, Samantha Carter, Daniel Jackson and Teal’c) necessary to tell the story? Couldn’t the same stories have been told with different characters?
Every Stargate fan immediately thinks of Seasons 9 and 10 now, where in fact new characters were introduced and old ones left the show, but not much changed in the structure or storytelling. The show went on just like before, the stories being similar to the ones before.
Of course, fans grow fond of the characters, but the stories in Stargate SG-1 are not the stories of Sam and Jack and Daniel and Teal’c. They tell the stories of a team of soldiers going off-world to other planets through a wormhole created by the Stargate. And the players on said team are interchangeable.
The Stargate is the “main character” of the show—not the characters on the team. Therefore, according to the “story being told” method, evidence suggests that the characters on Stargate SG-1 would not be copyright protected at all. Which means, technically one might be able to publish stories featuring Sam Carter and Jack O’Neill, as long as these stories have nothing to do with the Stargate SG-1 television show or the team SG-1. Or, in other words: as long as these stories don’t include any of the copyrighted materials of the show.
However, as Schwabach states and as I already mentioned above, the “story being told” test is applied very infrequently in courts nowadays, because of its liberal application of copyright laws. According to this test, many characters might not enjoy copyright protection.
In order to gain a more realistic answer, it would make more sense to examine in how far the Stargate characters are sufficiently delineated to qualify for copyright protection—and that’s where the case becomes more complex.
We don’t learn much about the character’s private lives, but there are significant details that make the characters unique. Especially the character of Sam Carter would be worth examining, since she has become somewhat of a cult character among science-fiction fans—almost a cultural icon.
So who is Sam Carter? Strong, tall, blonde, highly intelligent astrophysicist who spends all her time at work and has no social life.
In a way, the “nerd” parts of her character seem almost stereotypical—so stereotypical that they are hardly original enough to be protected.
Aside from that, in television history of the 1990s, female scientists make frequent appearances, especially in science fiction. Jadzia Dax from Star Trek: Deep Space 9 predates Sam Carter by four years. Kathryn Janeway and B’Elanna Torres from Star Trek: Voyager predate her by two years. And Dana Scully from The X-Files predates her by five years.
The concept of the strong female scientist wasn’t anything original anymore by the time Sam Carter made her first appearance on screen. One could even argue that, at her core, she is a copy of those earlier female scientists.
There are certain characteristics—or rather actions—that do seem to make her unique though, and which might fall under copyright protection: she shared her body with an alien symbiont. She blew up a sun. She’s basically what Trixie was in Chip’n’Dales’ rescue rangers: whenever there’s a problem, she can fix it. Even though she has a degree in astrophysics, she seems to be a genius in other fields as well.
All these traits and happenings are rather unique to the character, but they are also tied into the plot of the show as a whole. So one might argue that it is rather the plot as such that’s copyright protected—and not the character. And if you took the character out of the show’s universe and put her into a completely new universe? According to the sufficiently delineated test, you’re not infringing on any copyright, since the basic characteristics of that character are too commonplace to be copyrighted as original creation.
Another problem posed by the Stargate characters (except maybe Teal’c) is, that they are really just a means to tell the story. With few exceptions, we don’t learn much about their private lives and we never see them in any actions not related to the Stargate related-plot of the story. (We rarely even see them out of uniform!)
In addition, their identities as soldiers are unspectacular. They are soldiers and as such they are forced into a set of rules and regulations that doesn’t leave a lot of room for individuality (and originality on the part of the creators). Furthermore, the military organization used in Stargate is the Air Force, which is a real life organization and can therefore not be copyrighted. (If you compare that to the fictional Starfleet from the popular Star Trek franchise—which does seem like at least some aspects might be copyrighted—you can see the difference very clearly.)
The aspects that make up their personalities don’t seem to be extraordinary enough to be copyrighted. Character traits such as “intelligent”, “sarcastic” or “bookworm” cannot enjoy copyright protection. And a military organization per se takes away individuality in the simplest sense by even removing a character’s personal style in the form of fashion choices. (Which is something that, for example, Buffy tVS had also going for her, seeing that the show Buffy was often responsible for inspiring new fashion trends among its viewers.)
Due to the absence of personal stories of the characters, they largely remain superficial—soldiers, serving in the U.S. Air Force with the mission to go through the Stargate. And as such they are interchangeable (at least from the story perspective—show marketing is a different issue ;) ).
The case points strongly towards an absence of character protection—which, if this were in fact the case, would mean that fans could freely use the Stargate characters (with the exception of Teal’c) for stories which don’t make mention of the Stargate.
In any case, it’s much easier for fanfics revolving around characters without much personal life in their original material to be classified as transformative, because those fanfics usually introduce new aspects, storylines or even relationships to the character that are absent from the source material, because the source material only treats them superficially.
Thereby the fanfic is not a derivative of the material, but rather transforms it by adding to it.
c. The Problem with Character Copyright
Despite all of the above, Schwabach points out in the section on “The future of copyright protection of characters” that in recent years (he wrote his book in 2011), courts have taken a much stricter approach to determining whether a character is copyrighted or not. That’s mostly due to the fact that the line or arguments have moved more and more into the realms of literary criticism.
Therefore, it’s wise to assume that whatever main character you come across in books or on television enjoys some form of copyright protection.
4. So what if the source material/character is copyright protected?
So maybe now you have found out that the underlying material you’re writing fanfic for is in fact copyright protected. Does that mean you’re not allowed to write any fanfic?
But if you’re planning on publishing your story commercially at some point, you have to determine whether your story falls into the category derivative or transformative.
You can absolutely not publish a derivative work for money without the permission of the copyright holder of the original material—at least not without getting into trouble.
The case is different for transformative works, though. The more transformative your fanfic is, the better. Circumstances seem to be best when your fanfic shares nothing but some basic character traits with the original material anymore.
Many so-called AU (alternate universe) stories take existing characters and put them into completely different settings—sometimes even a different time frame. For example: Buffy, the Vampire Slayer, is turned into a soldier in the army, and Angel becomes an enemy spy whom she has to fight but falls in love with. Or, as in my current story “If Only”, Sam Carter becomes a slave in Ancient Rome and Jack O’Neill becomes a Prefect investigating a murder.
One can clearly see the transformative nature of such a story. And even though the transformative story can sometimes share some aspects with its original (such as an underlying Romeo and Juliet theme in the Buffy example), these aspects aren’t original enough to be copyrighted.
As a transformative work, your story then enjoys full copyright, and you can publish it commercially as long as you changed the recognizable names of existing characters. (Not because these names are copyrighted, but because one might argue that the combination of character traits and name create a reference to an original character that might be copyrighted.)
5. What does fair use mean?
Fair use is a term you often hear in connection with fanfiction. As Schwabach points out, that term might be among the most commonly misunderstood.
Fair use refers most importantly to the way in which the source material is used. Schwabach points out that
“There is, for example, a widespread but incorrect belief that noncommericial uses are presumptively fair uses. This may reflect the way things often work out in practice—there is a tendency on the part of many copyright owners to overlook noncommericial fan works, while fan works published for profit are often quick to attract legal action.”
In order to determine whether a fanfic makes fair use of its original material, courts usually take several factors into account, such as: the purpose of the use, 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. (Source.)
Especially the last factor may be one of the most crucial, since many producers and authors consider fanworks to be free advertising for their original works.
If you were, however, to write detailed fictional stories retelling every single episode of The X-Files, and thereby making watching the actual show redundant, courts may judge that your stories do not make fair use of the original material anymore, regardless of whether you publish it for free online.
Schwabach concludes his chapter on fair use by reminding the reader that
“The higher the degree of creativity in a fan work, the more likely the work is to be transformative and the less likely it is to be derivative. An analogy may be made here to the degree of creativity required for a derivative work to be independently copyrightable.”
6. Can authors such as Anne Rice or Marion Zimmer Bradley forbid fanfiction?
An author can forbid derivative works from being created. An author can, however, not forbid the creation of transformative works.
As we learned, most fanfic does fall into the category transformative, so technically the widespread bans on fanfiction as we often see online are completely without legal consequence.
Schwabach points out, though, that these bans are moving on legally unsteady ground. None of these bans have ever been issued by a court, so it’s basically an author taking the law into their own hand and deciding what’s copyright infringing and what isn’t. Thereby they overstep their authority—they are neither judges, nor lawyers.
So technically speaking, the problem is that a case of a general ban on fanfiction has never been brought in front of a court. And if it were, it would probably fail, since there is no general rule for when fanfiction infringes on copyright or when it doesn’t–so how could there be a general ban on all fanfiction?
Schwabach underlines this argument by exploring the case of Marion Zimmer Bradley, who banned fanfiction after having been sued by one of her fans for allegedly stealing her fanfiction and turning it into a novel. That accusation essentially prevented Marion Zimmer Bradley from publishing her novel. Despite her assurances that her story had existed before the fan had even published hers, her publisher refused to publish the story, most likely to avoid unnecessary legal fees required to solve the issue.
Still, these bans, albeit legally without consequence, are usually honored by major fanfiction archives such as fanfiction.net. It’s important to differentiate between legal ban and courtesy ban, though.
So should you ignore an author’s ban and still write fanfiction for their works?
That is for every person to decide for themselves. My personal opinion is, that bans by authors should be honored. If your story is original enough to be transformative, you can still change the character’s name and publish it as a completely new story. Or you can write it and keep it on your computer hard drive without publishing it. Acting against the author’s explicit wishes is always a bad idea.
Many authors who have issued these informal bans have effectively destroyed their own fandom by doing so—which is a rather drastic step that probably cost them quite a bit of income. So whatever reason drove them to take such a step, we as fans and writers should honor another author’s wish.
7. What about another fan stealing my story or republishing it without my consent?
Ah, and now we’re getting to the real interesting part. After you have read all of the above, I am sure you can answer that question yourself.
If your story is indeed derivative, then, sadly, you are somewhat screwed as, according to the U.S. Copyright Act, all rights to your story lie with the creator of the original material. Most fanfiction archives and platforms are still very strict about plagiarism, though, regardless of copyright protection. Plagiarism has much more to do with authorship rights (ergo: the right to be named as the author of that particular story) than with copyright. But, as we’ve learned above, only a minority of stories even fall into the category derivative.
If your story is a transformative fanfic, you, as the author, are in luck. You retain all rights as you would for an original story. That means that nobody can steal or republish your work without your consent.
They can, however, create transformative works of your story and publish that as their own—fanfic of your fanfic so to speak. But creating transformative or derivative fanfiction NEVER entails copying the original word by word, or even retelling the exact story of yours. If somebody does that and then publishes your story as their own, they are plagiarizing.
If they simply republish your story without your consent under your name, they are committing a copyright infringement, and you’ll have to decide on a case by case basis whether the increased exposure is worth refraining from issuing a takedown notice.
That begs an obvious question of course.
a. With all the copyright infringement happening in the fandoms, why do people still claim they have the right to take a fanfic because the author doesn’t have any rights to the story?
We all know pages like that. They openly proclaim that fanfiction is fair game to be copied and redistributed on other websites without the fanfic author’s permission required—because, in their words, fanfiction authors “don’t own anything” and all fanfiction falls into the category derivative works.
That’s dangerously misinformed. Fanfiction authors of transformative works do indeed retain all rights to their stories. The distinction between derivative and transformative is hardly ever made by these people, because they are oversimplifying a very complex legal issue. (And, as it seems, often they’re not even aware that there’s a fundamental difference.)
The situation is even worse because the victims of these content thefts and copyright infringements usually don’t earn any money from their fanfic stories. Without an economic interest, it’d be foolish (and usually impossible due to lack of financial means) for the victims to hire a lawyer and take the case up in front of a court.
It’s therefore important to understand that the lack of existing lawsuits is not evidence that stealing or unauthorized reposting of fanfiction is LEGAL, but it’s rather witness to the tight economic situations the creators of fanfiction are often in. Fanfiction is the poor person’s medium. Often (though not exclusively) it’s teens or students writing it.
In layman’s terms: Fanfic authors simply can’t afford to sue people who steal their stories.
Is it right to steal from somebody or infringe on that person’s rights because you know that person doesn’t have the means to fight back, so there won’t be legal consequences?
No, on the contrary. To me, that’s the equivalent of stealing money from an old lady because you know she isn’t fast enough to chase you anyway.
But, as we all know there are assholespeople in this world who use the helplessness of others to gain an advantage. And knowing that you technically do have the right to sue that person, but can’t afford it, definitely doesn’t make it any better. (Trust me, I know.)
But maybe this article will offer you a bit of solace.
Remember: As a fanfiction writer, you do have rights and you do generally own your transformative stories!
Spreading the word about that may be the best way to prevent content theft, since many of the thieves still act under the illusion that they’re allowed to take fanfiction.
Maybe the knowledge that the infringers are committing a crime also offers a little bit of hope. One of these days, somebody will steal a story from the wrong person—maybe a rich kid, for whom those lawyer’s fees are going to be mere peanuts—and they will end up being sued, which may set a much needed precedence in front of a court.
The popularity of fanfiction is ever-growing, and the genre managed to be recognized in academic circles during the past two decades. If this trend keeps going, fanfiction will take its place in mainstream culture in the next two to three decades. That will call for a much clearer distinction between derivative and transformative, along with clear cut boundaries of what’s allowed and what isn’t.
We can only hope that this day arrives sooner rather than later.
8. So what can I do to protect myself and my stories?
Without money to afford legal assistance, any measures you can take are preventive. If you are writing a story that you know you might want to turn into an original and publish traditionally at some point, it’s wise NOT TO PUBLISH the story online as fanfiction at all before. If it’s not out there, nobody can steal it.
You would still retain all rights even if you published it as fanfiction, but, as E.L.James is experiencing at the moment, it’s hard to fight the unofficial distribution of the original fanfiction for free—which might harm your book sales.
By not publishing your story as fanfiction you also avoid the fanfiction stigma, since nobody knows your story started out as fanfiction.
As for stories that you don’t plan to publish, you could only make your story available on private request. If you give a private copy to one person, that doesn’t legally count as publishing the story. So if somebody then publishes your story against your will, they are acting against your authorship rights.
None of these measures can guarantee 100% protection though. If somebody’s bent on stealing your story, they will find a way of doing so. So at the moment, we have to rely mostly on fandom-internal mechanisms of outing and shaming thieves and plagiarists.
There are also a few organizations offering help to fanfiction authors, such as the OTW (Organization for Transformative Works). On Livejournal, there’s a group called “Stop Plagiarism” where you can turn to report known plagiarists—however, that group seems to have been inactive since fall 2013.
The OTW is a non-profit organization engaged in changed the legal standing of fanfiction. They argue along the same lines as Schwabach in his book, but they aren’t engaged in changing the current legal situation, because they believe that, as transformative works, fanfiction is already protected in the current laws. Check out their website, it’s worth a visit.
“The Fair Use Project (FUP) was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom and protect important public rights. It is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests.”