It is a fascinating fact that some of today’s bestselling authors began their journeys in fan fiction communities. Author E.L James of Fifty Shades of Grey fame started off as a fan fiction writer of the Twilight Series and her work named Master of the Universe was rewritten and published as Fifty Shades of Grey. The trilogy has sold more than 165 million copies so far. Another example is Cassandra Claire, the author of City of Bones. Her writing career started off as a fan fiction writer of the Harry Potter series. Both these authors transitioned from fan fiction writing to mainstream writing and publishing, and their works have become hugely popular and later adapted into block buster movies.
The term Fan Fiction writing is self-explanatory. It’s nothing but creative writing by fans of novels, movies, TV shows or games. often building on the main characters or plot lines of published works. Fan fiction writers often write such content for personal enjoyment rather than for profit and publish their writings for free on online platforms and communities dedicated to such fan created content.
Does fan fiction writing amount to copyright infringement? In many cases, yes. As per Section 14(a) and (d) of the Copyright Act, 1957 (hereinafter referred to as the Act) the author of a literary or a dramatic work and the producer of a cinematographic film have rights of reproduction, distribution, performance, display, transmission, adaptation, translation, make copies, sell or give on commercial rental and communication of the work to the public.
Fan fiction is a derivative work as certain characters and plots from already published literary, dramatic or cinematographic films are used by the writers to create plot twists or stories of their own. Derivative work is not defined in the Act, but as per Section 14, exclusive rights for adaptation and translation of literary and dramatic work are only bestowed to the Author. This effectively covers derivative works. The Berne Convention for the Protection of the Literary and Artistic Works, 1886 Article 2(3) says that “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work” This means adaptations can themselves be protected, but they cannot override the rights of the original author. So derivative works cannot be created or exploited without authorization from the original right holder.
Fanfiction being a derivative work, if based on published literary, dramatic or cinematographic films, can amount to copyright infringement. If the characters created or the plots used, the locales mentioned are not new and bears resemblance to the ones used by the original creator there is infringement. If the new characters created cannot have an independent existence outside of the general matrix of the original story there is infringement of the rights of the Author. Even if new characters are created, if they have borrowed traits that belong to the characters of the original literary work, there is still infringement.
Defense of Fair Use
Fan fiction writers may use the defense of fair use if their work falls within the exceptions mentioned in Section 52 of the Act. These exceptions cover uses such as private or personal use, research, criticism, news reporting, reproduction of the work for a judicial proceeding, performance by students and staff of educational institutions of a literary, dramatic or musical work, the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, amongst others. Generally, fan fiction is published in online communities and is accessible to a worldwide audience and would rarely fall within these categories mentioned in Section 52.
Defense that the work has entered public domain.
Section 22 of the Act says that copyright subsists in literary, dramatic, artistic and musical work published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies. Regarding cinematographic films, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the film is published. After this period, the work enters the public domain and no longer enjoys copyright protection. So, any fan fiction based on a work that has entered public domain does not constitute infringement
Defense of Disclaimer being used
Most of the fan fiction writers use disclaimers stating that all rights belong to the original creator. But disclaimers only acknowledge ownership, it does not indicate or prove authorization or a license. They do not give much protection other than mitigating the damages if infringement is proven.
Defense of absence of commercial interests
Most fan fiction is shared freely in online communities by writers without commercial gain. Such non‑commercial nature is often cited as a defense, as the works are not monetized and are intended purely for creative expression. If the fiction created is transformative and different from the published work on which it is loosely based then it is less likely to attract legal challenges. The attitude of authors towards fan fiction also varies. Famous author JK Rowling has indicated that she is not against the idea of Fan fiction if the use is non-commercial, [1] whereas the author George RR Martin has expressed strong opposition against Fan fiction. [2] Absence of commercial intent may reduce the likelihood of enforcement by the copyright owner but it does not eliminate the risk of infringement. This is because copyright law protects both economic and moral rights, and even if non‑commercial, fan fiction may infringe an author’s moral rights such as right to integrity and attribution. Authors can object if their characters are portrayed in a manner that distort their original vision.
In 2013, Amazon came up with an idea of creating a space where authors can monetize Fan fiction created based on their original work. With this objective, the publishing platform Kindle Worlds was created with royalties to be shared between the Fan fiction writer, the Author and Amazon at the rates of 35%, 35% and 30%.[3]. But in 2018, Amazon Kindle Worlds became defunct as it struggled to grow and had limited participation.
To conclude, Fan fiction will continue to be there as long as fans continue to write. Legally, fan fiction will infringe the rights of the original creators unless the work is new and transformative in all aspects. Works that have entered public domain may be freely adapted by Fan fiction writers. If fair use can be proven by the fan fiction writer, then creativity can be defended. Fan fiction remains a vibrant form of cultural expression, but its legality depends on how closely it adapts the original and whether lawful fair use exceptions apply.
