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A Discussion of Copyright and Fanfiction

Posted by OTB {M&D Forever} on July 7, 2013 at 10:04pm on FWAR

I feel compelled (for the first time in 3 years) to actually write a blog about fanfiction and copyright. My motivation is the continued misinformation I see all over this fandom as to who owns what.

First off, my qualifications to even speak on this subject:

I'm a professionally certified public librarian, having worked in the public library system for ten years before renewing my teaching license, where I am now in my 7th year as a middle school librarian. The respect for intellectual property and an understanding of copyright is part of my job.

I teach copyright and plagiarism to my students every year, therefore I have some in-depth knowledge in the area, not just an uninformed opinion.

Here are the facts as laid out by the U.S. Copyright Office:

1) Fanfiction is considered a derivative work, which in simple layman's terms means you don't own your fanfics, you can't copyright them, and you certainly cannot make any profit off of them without the originating author's permission (and that ain't gonna happen! LOL)

2) There is precedent to support the statement that you may not own the whole story, but you own your original characters (certainly, but only if they are not rooted in the originating author's mythology) and you own your original plot. Many authors have reworked fanfics, removed everything that tied them to the originating author, and then published them as originals, without any legal ramifications.

3) If your fanfiction is posted on the internet, there is nothing you can do to stop the sharing. Anyone can save your story to their computer, or create a PDF file to upload to a mobile device, or swap PDFs with friends via private email messages. You have NO LEGAL RECOURSE to stop any form of distribution of your stories (except in cases of plagiarism, which I will discuss in a minute). The only way to stop the sharing is to pull your stories, and even then, your most rabid fans will be one step ahead of you and will have already saved a copy in some form for later enjoyment.

But what about people plagiarizing my fanfics?? (Please note the underline. We're talking about fanfics, NOT copyrighted works.)

Is it unethical and wrong to plagiarize someone else's fanfic? YES. Is it illegal?? ABSOLUTELY NOT. Try taking a fanfic plagiarism case to court and see how far you get. Your story is a derivative work. You can't claim copyright ownership, so you have no LEGAL recourse against the plagiarizer.

Luckily, most fanfiction sites do not tolerate plagiarism and stories are taken down quickly. But let's not misunderstand. The stories are taken down because it's unethical to copy someone else's fic (not to mention lazy!), but NOT because it's illegal.

There is only one documented court case in which a fanfiction author won a lawsuit brought against an originating author. It was proven that the originating author had read this woman's fanfic and then had stolen the entire plot and put it in her next sequel, which she published and profited from, all without the permission of the fanfic author. In this instance, the fanfic author did indeed own the plot, which was unique enough for a judge to recognize that and side with the fanfic author.

Recently, there have been a spate of incidences where fanfic authors are plagiarizing COPYRIGHTED works that have been published as originals. They're changing the names to Bella and Edward, or Jacob and Bella and posting them as their own work. Now that is DEFINITELY illegal, because the originating work is not a's copyright protected. The originating author could sue the ass off the plagiarist if they wished to pursue it. In all instances, the sites housing the fics promptly took the stories down.

Is this site illegal or unethical?

Absolutely not. The stories are derivative works and the authors do not own the rights to them. If they are readily available on the internet (say, in DropBox or a similar file sharing site), then it is perfectly legal to download them for recreational reading. Of course, you cannot plagiarize them or try to profit from them in any way. That is illegal. But just housing them on a site for sharing? Nothing wrong with that at all.

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According to copyright law, fan fiction is considered a derivative work and is not protected, even those that have been pulled and reworked for publishing, therefore we provide links to copies of pulled fanfics here. Please see the disclaimer for a more detailed explanation.