“Fan Fiction” and Copyright Liabilities: An Analysis from the American Legal Perspective

“Fan Fiction” and Copyright Liabilities: An Analysis from the American Legal Perspective

This piece has been authored by Anamika Unni, 2nd year BA LLB (Hons.), National University of Advanced Legal Studies

KEYWORDS: Fanfiction, Copyright, American Jurisprudence, Fair Use


Fan Fiction is a historically relevant and recognised form of derivative art that has ballooned into a sizeable industry in the present day. Regardless of its popularity, such works’ legality is frequently questioned. As such, the analysis of jurisprudence in such cases is beneficial. This paper explores the current climate and history of fan fiction and the various instances of cases relevant to fan fiction and enumerates the principles followed by Courts in deciding such cases.


Fan Fiction, popularly abbreviated as fanfic, is a form of writing based on existing literary works written unofficially by amateur writers. The legal status of fanfic is a grey area, with various cases revolving around the extent of the applicability of the Fair Use doctrine. Courts also take into consideration whether such works are derivative or transformative through an analysis of the facts of the case. Regardless of the legality of fanfic, it is seen that this casual endeavour is in and of itself a massive economic venture, with millions of works published on various websites. The historical use of fellow creators’ works in the era before copyright law must also be noted. The rise of fanfic authors and readership, as well as the surrounding culture around fanworks, coincides with the rising influence of the internet on popular culture. Considering the increasing lucrativeness of the publishing industry, with cascading implications for related industries such as the cinema industry, especially when combined with the indescribable outreach and awareness opportunities made possible by the internet, the rise of fanfic is of interest. While specific issues are often addressed by courts on a case-by-case basis, it is possible to glean the underlying principles behind judgements.

Historical and Current Examples of Fanfiction:

Fanfic has a long history, albeit in a different form compared to the present day. Legendary authors such as Shakespeare have been known to have taken the plots of their works from their contemporaries. Classic dramas such as Romeo and Juliet, Othello, and As You Like It, among many others, were copied from his fellow authors. Consider the example of John Milton’s iconic Paradise Lost, a retelling of the Book of Genesis. From a modern perspective, it could be said to be an early example of fanfiction.Even in modern times, many popularly published authors find inspiration and subsequent success from writing fanfiction.

To cite an oft-repeated example: E L James’ Fifty Shades of Grey was reportedly inspired by Stephenie Meyer’s Twilight series. It is evident that there exists a history of profiting off the work of others, without due acknowledgement, even in the post-copyright era. The transformative nature of human inspiration has proven itself to be notoriously difficult to quantify in concrete terms.

Most fanfic works exist unmonetised and are published on sites such as FanFiction.net, Archive of Our Own, Wattpad, and others. The legal liability of such authors is even more unclear, and it has proven nearly impossible to construct a rigorous framework to regulate such works.

The Legal Issue of Fan-Fiction:

In the technical sense, fanfics are undoubtedly violative of the original author’s copyright, even if specific authors do not mind or even encourage/tacitly support unmonetised fanfiction. On the other hand, many authors actively speak out against fanfic writers and file suits against such writers, who often face strict penalties if such a suit succeeds. Precedent is, for the most part, not always helpful, and most disputes are adjudicated on a case-by-case basis. One case may go against the original author, yet another may be decided in favour of the original author.

Derivative vs Transformative Works & The Fair Use Doctrine:

Two principles govern such disputes: the Fair Use Doctrine and the principle of Derivative vs Transformative Works as given by the Supreme Court in Campbell v. Acuff-Rose Music[1]. The Fair Use Doctrine establishes certain copyright exceptions, falling under four distinct categories:

“The purpose and character of the Use, the Nature of Copyrighted work, the Amount and Substantiality of the portion used in relation to the work as a whole, and the effect of Use upon potential market value for the copyrighted work.”[2]

It is to be noted that these exceptions can be vague and do not define in strict terms precisely what kind of works are exempt. While it seeks to protect legitimate uses such as criticism, teaching and parody, it is debatable how much these apply to fanfic. Whether a work is “transformative” refers to the first criterion in the Fair Use doctrine, wherein the nature of the work differs from the original and introduces new elements. The court queries whether the new work has new aesthetics and gives new interpretations and understandings of the original work. 

Exemplar Case Law:

In the example of Suntrust Bank v. Houghton Mifflin Co., a parody of Margaret Mitchell’s Gone With the Wind from the perspective of one of the enslaved people, The Wind Done Gone was decided to be falling under Fair Use due to it being very much a critique of the original work with new characters and themes.[3]

Suppose it merely adds onto existing material and offers nothing new. In that case, it might be seen as a derivative work, which is the sole domain of the original author, as seen in Anderson v. Stallone, in which a fan-written movie script for Sylvester Stallone’s Rocky movies was deemed to be under the copyright of Stallone himself.[4]

In Salinger v. Colting, wherein a Swedish author wrote a sequel to Salinger’s Catcher in the Rye set 70 years in the future, the court deemed the work to be derivative and thus violative of copyright.[5]

In Klinger v. Conan Doyle Estate, a writer sought to put Conan Doyle’s Holmes and Watson characters, whose initial works had fallen into the public domain, into his settings, the court decided that even though many later books were still under copyright, due to the original work being out of copyright, it was perfectly reasonable to use those characters, even in a commercially published work.[6]

To consider the inverse, taking the same ideas and reformatting them, such as in Castle Rock v. Carol Publishing, where the latter came out with a Seinfeld Aptitude Test, even though the relevant copyrighted material was arranged in an entirely different format (a trivia book), it was held to be violative of copyright.[7]

Principles Developed through Case Law:

In conclusion, while such cases are often ambiguous, the Courts tend to follow certain principles that are of significant interest to both authors of original works and fan works. As far as principles of Fair Use are relevant, wholly transformative works using new characters, settings, plotlines, and themes are more likely to be exempted, as are works that seek to critique, parody and satirise the original.

To use a metaphor, taking the “ingredients” of an author’s work to create something new is acceptable from the legal perspective – but to simply add on to it rarely is. The more the work directly borrows from the original, the more likely it is to be ruled against in the event of a lawsuit, and mere reorganisation of details may not be sufficiently transformative. Fanfic of derivative novels is less likely to be prosecuted compared to that of media such as original movies, wherein most of the material is entirely new.

The moral rights of the author are also relevant, in the sense that the wishes of the authors being respected is likely to be the safe choice. Various authors make it a point to encourage such works, especially at the amateur level. Outright freedom is of course rarely given, carrying with it implications for losing copyright altogether.

As far as economic impact is concerned, if a work is decided to be falling under Fair Use, it might be acceptable to market and profit off of a fanwork as in the case of obvious parodies and satires. As mentioned above, profiting off of works simply expanding upon existing material is highly likely to be deemed violative. It is nevertheless an incredibly vague clause, giving no standard for defining economic impact.

Whether a work counts as truly transformative generally can only be decided through the vagaries of a copyright infringement lawsuit, with practitioners often being unable to follow any type of standardised benchmark with which to compare such works. It is not incomprehensible to consider that certain landmark judgements could have gone the other way in the present time. Trademark violations form a wholly different perspective on the issue, which deserves its own consideration.


The field of copyright law regarding works of fiction is rapidly evolving. Taking into consideration the size of the publishing industry and the stringent penalties imposed on violators of copyright, following the case law regarding such issues proves to be expedient for both legal practitioners and creators of such works. There remains ample scope for litigation due to the ambiguity of legislation, making the field ripe for analysis.

[1] Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)

[2] 17 U.S. Code § 107

[3] Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001)

[4] Anderson v. Stallone,1989 U.S. Dist. LEXIS 11109 (C.D. Cal. 1989)

[5] Salinger v. Colting, 641 F. Supp. 2d 250 (S.D.N.Y. 2009)

[6] Klinger v. Conan Doyle Estate, 755 F. 3d 496 (7th Cir. 2014)

[7] Castle Rock v. Carol Publishing, 150 F.3d 132 (2d Cir. 1998)

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