Loyola University Chicago School of Law, JD 2019
Over the years, the Internet has become a vast space for people to create and view content shared by millions of Internet users. The abundance of content makes it nearly impossible to regulate everything that is posted. This has created a problem for authors, songwriters, and artists whose work is protected by copyright laws, because it has become increasingly easy for anyone to use, copy, and share copyrighted works that they do not have the right to use. Copyright law exists to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” While the Copyright Act clearly grants artists certain exclusive rights to their work, claims of infringement often cause courts to engage in subjective analyses that leave some areas of copyright protection unclear. This has been especially problematic with fanfiction. In Fanfiction, fans of existing books, movies and television shows used different elements of those works to write their own stories, which are often then posted on websites such as, fanfiction.net. Fanfiction raises questions of copyright infringement and whether online forums should be more strictly regulated to monitor compliance with copyright laws.
How copyright law applies to fanfiction…or does it?
Section 106 of the Copyright Act of 1976 grants owners of copyrighted work the exclusive right to produce derivative works based on the copyrighted work and the right to display the copyrighted work publicly. A story based on an already existing novel, written by anyone other than the original author, is a derivative work and is therefore, subject to a copyright infringement claim. Websites, such as fanfiction.net, have hundreds of thousands of fanfiction stories, categorized by the title of original copyrighted works; this begs the question: why haven’t these websites been shut down?
This is a highly controversial issue; the law surrounding derivative works is not exactly straightforward or well known by many fanfiction writers. In the event that an original copyright owner sues a fanfiction writer, the court must determine whether the piece of fanfiction is classified as a derivative work or falls under the doctrine of fair use. Section 107 of the Copyright Act of 1976 is a limitation on the exclusive rights granted to copyright owners. Essentially, fanfiction writers may legally use elements of copyrighted works if they comply with the requirements of Section 107. Fanfiction that transforms the original work such that it is ultimately used for commentary, teaching, criticism, or research will not be subject to copyright infringement.
Where Fanfiction Crosses the Line: Distinguishing Infringement from Fair Use
In many cases, the distinction between a derivative work, under Section 106(2) of the US Copyright Act, and work that falls under Section 107, the fair use doctrine, is not clear. For example, Alice Randall published a novel, “The Wind Done Gone”, that was based on Margaret Mitchell’s classic novel, “Gone With the Wind”. In 2001, SunTrust, Mitchell’s publisher, and Mitchell’s estate filed a lawsuit against Houghton Mifflin, the publishers of Randall’s book, and argued that Randall “appropriated characters, scene, setting, plot and even some passages straight from ‘Gone with the Wind’.” “The Wind Done Gone” was written from the perspective of a slave during the Civil War, and Randall argued that this was commentary on the apparent racism found throughout “Gone With the Wind” and was simply a parody. A federal district judge in Atlanta issued a preliminary injunction that prevented publication of Randall’s novel. Randall and her publisher appealed and the US Court of Appeals overturned the injunction and remanded the case. The three-judge panel called the injunction, “an unlawful prior restraint in violation of the First Amendment” and one judge thought “The Wind Done Gone” was transformative because it “provided social benefit by shedding light on an earlier work, and in the process, creating a new one.” The Court of Appeals did not find that SunTrust established a likelihood of success on the copyright infringement claim, and a year later, the parties settled.
Randall and Houghton Mifflin had a strong case given that the message and purpose of the novel was a critique of the messages in “Gone with the Wind”. If that is the case, “The Wind Done Gone” complies with Section 107 and qualifies as fair use. But with many fanfiction pieces, the message and purpose are consistent with the original, which requires the court to engage in a more subjective analysis under Section 107. Four factors are to be considered when ascertaining whether an allegedly infringing work falls within Section 106 but can be entitled to a fair use defense:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for, or value of, the copyrighted work
The Great Debate: “Twilight” vs. “Fifty Shades of Grey”
These factors only come into play where a copyright owner alleges that another work has wrongfully copied their original work without permission. In contrast to the Mitchell estate’s allegation, “Twilight” author, Stephenie Meyers, has chosen not to take legal action against “Fifty Shades of Grey” author, E.L. James, despite speculation that James directly copied Meyer’s work to write “Fifty Shades of Grey.” James wrote a fanfiction piece based on “Twilight” under the name “Snowqueen Icedragon” called, “Master of the Universe”, and posted it on Fanfiction.net. (“MouT”) MouT was a sexually explicit adaptation of “Twilight” with the same characters from “Twilight”, Edward and Bella.
MouT was taken down from Fanfiction.net because it was too provocative for the site, but the popularity of MouT led her to “rewrite” it with the title, “Fifty Shades of Grey” and post that to her own website, 50shades.com. James then signed a 7-figure book contract and the rest is history. Since the release of her first novel, sequels and movies have been created, with millions of dollars going directly to James. Meyers could have a strong case for copyright infringement against James if the court finds that James’ work is substantially similar enough to constitute a derivative of “Twilight”. Since websites like fanfiction.net are not monitored or regulated by the government for copyright infringement, it is up to Meyers to make that claim.
While it is important to recognize the value in promoting creativity and artistry in every form, authors of original, creative works deserve full protection from infringement. JK Rowling is among the authors who fully support writers of fanfiction, yet still has concerns about where to draw the infringement line. Many supporters of fanfiction, including Rowling, believe fanficiton should not be profitable. This debate between preserving copyright holder’s rights and promoting the creation of artistic works has been ongoing for years. Public platforms, like fanfiction.net, need a stricter monitoring system to enforce compliance with copyright laws in order to better serve the needs and rights of original copyright owners. While there is a strong argument that these sites encourage artistic creation and expression, all authors of original works deserve full protection from infringement. Many times fanfiction writers may not know whether their work is inspired by the original or illegally infringing it, but stricter monitoring and enforcement can help inform writers of the laws and legal claims that their work is subject to. Heavier monitoring would continue to allow fanfiction writers to post their creative content, ensure that they are in compliance with copyright laws, and protect all authors from possible infringement claims.