Fifty Shade of Grey started as fan fiction of Twilight. Zachary Hiller Law Houston, TXHave you ever been so obsessed over a book, film or TV show that you didn’t want it to end? For many diehard fanatics of a genre, fan fiction is a way to perpetuate the story after the original author has set down their pen. For those who are unfamiliar, Fan Fiction is writing by fans and is based on the characters, plotline or worlds that these works are set in. They have blown up online and if you search for anything under these stories’ names you would find that there are hundreds of thousands of fan fiction stories about just about any major work of the last decade. Fan fiction has been around since the Internet existed for social interaction, but took off in the late 90s and early 2000s. There is fan fiction set in the world of Harry Potter, Twilight, The Lord of the Rings, and nearly every other popular book series, movie, or TV show with a cult following.

The question of fan fiction has always been, ‘is it legal and does it violate copyright law’?  Typically fan fiction authors are careful to include disclaimers on their work to protect them from lawsuits, stating that they are writing under the ‘Fair Use’ clause. But, there is an argument over this notion of “Fair Use.” Fan Fiction falls in a gray area, as it doesn’t copy the work directly but it most certainly utilizes much of the original and copyrightable ideas.

The truth is that, disclaimer or not, the owner of the original copyright can have the fanfic content removed or sue for damages. The disclaimer states that the Fan Fiction writer does not intend to violate the law. But saying that you didn’t intend to break a law doesn’t give you the right to break it. Disclaimers don’t completely protect you from copyright infringement. It is important to respect the author’s legal right to their own material. Under the Copyright Act of 1976, a copyright owner has the exclusive right to reproduce, adapt, distribute, perform and display their work. Any person who infringes upon the right of a copyright owner without their permission has violated the copyright.

Fan fiction authors who argue that their work is legal through the fair use doctrine use specific fair use arguments, such as:

  1. Fan works do not deprive the owner of the source material of financial income.
  2. Fan works could work as free advertisement and promotion of the source material.
  3. Fan works are typically non-profit.
  4. Fan works do not copy, or substitute for, the original source work.

While there have been many lawsuits against Fan Fiction authors writing for monetary gain, there have been no documented lawsuits against Fan Fiction authors who write solely for a hobby.

When we mention lawsuits and Fan Fiction, we have to bring up the Fifty Shades of Grey issue. The characters in the fanfic version were named Edward and Bella, and most readers imagined the Twilight characters in this free story. The fanfic story became so popular that its fans had their own convention with the author, raising tens of thousands of dollars for charity.

Since the story’s popularity was built on its association with Twilight, it raises some issues. Without its association with Twilight, the story wouldn’t have received its huge following. Because of the huge following, the author changed the names of her story, split her story into thirds and charged for the books. These same fans from before bought these books. This raised the ethical and legal question of ‘did she use someone else’s characters and fanatical fandom ties for monetary gain?’

So what does this mean for fanfic authors? In cases of 50 Shades of Grey where the work is inspired by other characters and written in an alternate universe, is the work different enough? Under United States copyright law, to qualify as an original work the level of originality is a low bar that protects almost all manners of work so long as the work was created by the author. Considering this, most fan fictions are considered original due to the authors having no connection to the originating author other than inspiration.

To avoid legal issues fanfic authors should search for self-published fiction copyrighted under Creative Commons and contact the authors directly.

What are your thoughts on legal issues with fan fiction and copyright? Share with us.

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