Writings of an Aficionado: Fan Fiction and Copyright

Writings of an Aficionado: Fan Fiction and Copyright

[This piece has been authored by Shruti Navayath, a student at the NMIMS, Kirit P. Mehta School of Law.]



Fan fiction refers to stories that have been written by fans, involving popular fictional characters, and are often posted on the internet.[1] In recent years, as the internet has grown in popularity, so has the number and popularity of this fan fiction. If found to be infringing, fan fiction may be subject to liability under the Copyright and Trademark laws.

Can copyright affect fan fiction?

The copyright rules kick in as soon as the author starts writing fan fiction. Previously, two important tests have come into play.[2] The first was in Nichols v. Universal,[3] in which the Supreme Court ruled that copyright protection cannot be extended to the characteristics of stock characters in a story, whether it’s a book, play, or movie. The second criterion was established in Warner Bros. Pictures v. Columbia Broadcasting System,[4] where the court declared that characters would not be protected by copyright until they “really form the story being told” and are not merely a “chessman in the game of delivering the story.”

A copyright owner has the legal right to prevent others from copying, distributing, performing, modifying, or exhibiting the work or characters in the copyrighted work without his or her permission, as well as from creating “derivative works” of the copyrighted work.

Derivative work is any new work that is built on someone else’s copyrighted work. Because they use copyright-protected characters from someone else’s original, fan fiction may be categorized as derivative works. Authors of fan fiction create and distribute their work by uploading it online. Copyright owners are usually offended by this type of work.

An author’s moral rights enable him to pursue legal action against any mutilation, distortion, or other infringement of his copyrighted work, even after the copyright has expired. Fan fiction can jeopardize an author’s moral rights if the work mutilates or distorts the original work or the author’s reputation.[5]


In Eastern Book Company v. D.B. Modak, the Supreme Court used significant references from US Copyright law to define a derivative work as “a contribution of original material to a pre-existing work to recast, alter, or adapt the pre-existing work.” It also mentioned the Indo-Canadian originality test, which states that in order to claim copyright in a derivative work, the author must use “skill and judgment with a flavour of creativity,” which may not be creativity in the sense of being novel or non-obvious, but is not merely a product of labor and capital.” This, however, is vague and insufficient to reach a judgement in the case of fan fiction, especially given the diverse character of derivative works and the lack of explicit legal provisions in Indian Copyright law dealing with them. There is no one-size-fits-all solution to this problem.

Section 106 of the current US Copyright Law grants the owner of a copyright the sole right to create derivative works based on the copyrighted work. Most fan fiction isn’t parodies of the original work, nor is it sufficiently transformative to be classified as transformative works (where the original work has been substantially changed by transforming it to appeal to a new audience), which would have made them significantly protectable, unlike derivative works. In her retelling of the story from the point-of-view of Scarlett O’Hara’s half-sister Cynara, Alice Randall proved her “The Wind Done Gone” to be a transformational work, defeating Margaret Mitchell’s Gone with the Wind, and now holds all rights linked with her book.[6]

In Section 52 of the Indian Copyright Act, 1972, Indian law has adopted the ‘fair dealing’ theory, which tries to distinguish between a valid bona fide use of a work and a blatant copy, similar to the ‘fair use doctrine in the United States. While the Indian legislation is restricted, providing a relatively tight and exhaustive list of exclusions that fall within the scope of fair dealing, deeming anything outside of the exceptions to be an act of infringement, the US Copyright Act of 1976 is significantly more open-ended and demonstrative on the subject.

How can fan fiction be defended?

Copyright law’s non-rivalrous nature serves as a defense. The significance of the original work is not diminished by the copy. These fan fiction, in general, promote the original works. They also bring attention to the original. Further, there is no commercial benefit intended. Fan fiction does not try to compete with the original work’s market. There are no plans to replace the original work.

The defense of fair use can also be applied. Applying the four-factor test (purpose of work; nature of work; amount copied and effect of original work), we understand that the work is generally created by fans, through their own imagination, not for profit, in completely new stories, without competing with the original work thus leaving it unaffected.


Under copyright law, fan fiction can be considered fair use. Some authors support fan fiction, while others do not. Authors who even approve of fan fiction are most concerned with ensuring that the fan fiction stays a non-commercial endeavor.

In circumstances where fan fiction authors publish their work for economic gain, there may be ramifications, as seen in the case of Warner Bros. Entertainment, Inc. and J. K. Rowling v. RDR Books.[7]

Intellectual property rights are issued with the intention of promoting innovation and encouraging producers to produce additional work. They operate as a motivator to produce the task. They should never be used to stifle creative thinking. Fan fictions are works by amateur creators who, if given the chance, could create something great in the future; consequently, they must be treated with caution and balance.

[1] https://www.merriam-webster.com/dictionary/fan%20fiction

[2] https://desikaanoon.in/do-fan-fictions-have-a-copyright-protection-in-india/

[3]  Nichols v. Universal, 45 F.2d 119 (2d Cir. 1930).

[4] Warner Bros. Pictures v. Columbia Broadcasting System, 102 F. Supp. 141 (S.D. Cal. 1951).

[5] https://www.mondaq.com/india/trademark/348370/legality-of-fan-fictions.

[6] https://spicyip.com/2015/01/14526.html.

[7] Warner Bros. Entertainment, Inc. and J. K. Rowling v. RDR Books, 575 F.Supp.2d 513 (SDNY 2008).

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