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Fanfiction: Is It Legal?

On January 28, 2010, in Commentary, Definitions, Fanfiction, Writing Tips, by Mokibobolink

When I started thinking about doing a blog about fanfiction, the subject of legality of course came up. Any fanficcer out there knows that fanfic is illegal, right? But I had to figure out what that meant exactly and how it was possible for sites like fanfiction.net to post stories that were, in essence, nothing but massive copyright infringements.

So I did some research and found some information that was very useful. The best resource I found was on the site ChillingEffects.org. They have an entire FAQ page about Fanfic that you can take a look at HERE.

As for me, I found three particular questions/answers from their site that helped a lot.

From ChillingEffects.org…

Question: What liabilities could ISPs face? (And what can FanFic authors expect from their ISPs?)

Answer: As more companies deal with FanFic through ISPs, it is important for ISPs and FanFic authors to know what rights they have. The Digital Millennium Copyright Act (“DMCA”) establishes a “safe harbor” from liability for ISPs that exercise no control over content other people provide. If your ISP fits under the safe harbor provisions, then it will not face monetary damages, only a possible injunction. Under the safe harbor provisions, you as the author are entited to notice that the ISP might take your story down, and you can issue a counter-notice claiming that your work is not infringing.

The DMCA also has certain other procedural requirements that allocate the burdens between copyright holders, ISPs and individuals. Specifically, the copyright holder has the burden to find the ISPs that carry the offending material. The ISP then has the burden to send notice to the offending users. The user then has the right to file a counter-notice for fair use or some other defense, at which point the ISP can remove itself and let the copyright holder and the user fight it out. If the ISP is found to be secondary liable (see “Is there an infringement”), then it pays no monetary damages and suffers only the possibility of an injunction. Nonetheless, ISPs generally prefer less liability and will often exert enough pressure on the individual such that the individual complies or is forced to find another ISP. With little resources, it is only expected that individuals face the brunt of this burden allocation. (See the DMCA section of this website for more information).

Okay so one of the biggest questions I’ve always had about fanfiction was how a site like fanfiction.net could exist. As they are obviously making some money by posting works that are in direct violation of copyright laws (as I understand them). Whether or not they “profit” I of course have no idea, I’m only basing my opinion on the fact that there are ads running on their site. Now I see that they, as an “ISP” (Internet Service Provider – in other words, the host site) must be operating under the “safe harbor” provisions since they don’t actually post anything up there, we the fans do.

From ChillingEffects.org…

Question: How do companies usually react to FanFic?

Answer: Different companies have different methods in dealing with FanFic. Some, like Paramount Pictures, see that FanFic could actually help boost their sales and so encourage the writing of FanFic. Other companies are presumably waiting for more business information and legal clarity before making a decision. For example Universal, which owns the rights to Xena: the Warrior Princess, have yet to go after the numerous copyright violations involving what fans dub the “Xenaverse.” The Universal approach is in sharp contrast to Fox Television and Viacom, both of whom resort to harsh cease-and-desist letters against unauthorized Web site creations by fans of such shows as “The X-Files,” “Millennium” and “Star Trek.”

In order for a corporation to win a cease-and-desist order against a FanFic author, it would have to prove that it was suffering financial damage, something that is hard to prove since much of FanFic actually helps boost sales. This has helped motivate companies to go after ISPs. Being caught in the middle of the battle, ISPs will often put pressure on the FanFIc authors in order to avoid liability, a decision which often leaves FanFic authors without any choice but to remove the supposedly offending material.

For me it was that last paragraph that really helped me to relax about publishing my own fanfiction, especially on an established and well-known site like Fanfiction.net. An author would have to prove that it was suffering financial damage and as I am not earning anything by posting my stories, I am not taking any money from them.

From ChillingEffects.org…

Question: What benefit does an author credit provide?

Answer: A credit serves as a disclaimer. Strictly speaking, disclaimers do not absolve an infringer from liability. However, disclaimers do serve an important function. Disclaimers explain the purpose and extent of the borrowing author’s use and show that they recognize their “borrowing.” Thus, disclaimers help appease original authors’ fear that they will lose control over their works. The acknowledgment of the original source and ownership of the original work can reinforce the communal aspects of fandom and show that the borrowing authors respect original author’s rights.

Now I’ll admit that I always wondered why people bothered to put disclaimers up on their stories. I mean we all know we’re reading fanfiction. We all know that the characters and basic canon don’t belong to the fanfic author, so why the disclaimer? Well now I get it and I fully plan to add one to each of my stories from now on. Just in case anyone associated with the original work sees it, I want them to know that I fully acknowledge borrowing from them and respect their work.

Another interesting piece of information I found was on FictionPress.com.

“Do You Realize Fanfiction is Illegal?” – An Essay by Leo Damascus on fictionpress.com

Now I’m not saying I agree with everything this author said, but the article did provide some more information as well as another opinion on the subject.

So basically from what I’ve been able to gather, posting fanfction on a site protected under “safe harbor” provisions, without profiting from it, and with a disclaimer, should provide a fanficcer protection from being hit with a law suit. However, please keep in mind that I am NOT a lawyer so nothing up here should constitute as legal advice. If you really want to know more, you should contact a lawyer yourself.

For those of you wondering how I could host my own fanfiction blog, my solution was to not post any fanfiction on this site. I may link to stories hosted on other sites, but I will not host any stories myself. This blog is only about the subject of fanfiction.

I hope that helped to clear up some things for anyone wondering about this stuff, I know it did for me. Feel free to let me know what you come across in your own research on the subject.


More on Fanfiction…

Fanfiction: What is it?

Fanfiction Tips: Keeping Your Characters In Character

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  • aliskye

    I’m afraid I disagree with your conclusions, that disclaimers and safe harbors protect fan fiction writers from lawsuits. If the copyright holders want to sue fan fiction writers, these things will not protect them. Fan fiction is basically a derivative work of a copyrighted property. Unless the fan fiction contains commentary about the original work (thus making it transformative), a fan fiction writer would not win a lawsuit. What protects fan fiction writers for the most part, is the expense of bringing an action against the infringer. It’s just not worth the time and trouble for most studios to bother.

  • Mokibobolink

    Well that certainly makes sense and you have every right to disagree. That’s what makes a good discussion.

    Thanks for the additional info! :)

  • KindleLyn

    Hm. Interesting stuff. I’ve often wondered about the legal ramifications of fanfiction, but I always just figured that if everyone else is doing it, it must be fine. Lol. Not typically the best way to make decisions, but I’m not terribly worried about the owners of NCIS hunting me down.

    I think the point you make about fanfiction supporting sales is so true. Fanfiction either increases a fan’s investment in the original work, or expresses the fact that the fan is already as invested as you can possibly get. Heck, half the reason I like to have NCIS on DVD is so I can refer to episodes at will to support any fics I might be working on. I can understand that some authors do not allow Fanfic to be based on their works, and I respect their right to do that…but I think most things – especially TV shows – would be wise to recognize that Fanfic is a valuable addition to their universe.

    At the same time, this is making me wonder for the first time how I would feel about it if I published a book and then people wrote Fanfic about it. Looking at it from my current perspective, I’d have to say that if I ever write a book that inspires Fanfiction I will be blown-away-pleased by the success of my work. Although, I might not ever actually READ it. :-)

  • KindleLyn

    Ps – In the interest of being clear, I just wanted to point out that I did not use the word “investment” to express financial investment, but rather emotional investment…

  • Mokibobolink

    Don’t feel bad, KindleLyn, I used to think that way myself. I just figured if big sites like fanfiction.net were posting the stuff, then I must be fine and kind of let it go at that. Having this blog means I actually have to research that stuff now. LOL.

    I totally agree. Fanfiction can really support sales and like you, I usually buy DVDs with one purpose being that I will use them to re-watch eps for fanfic research. I also go to conventions, buy soundtracks and tie-in novels, etc all for the same reason.

    I think most shows these days do recognize how useful fanfic is for them. Supernatural has acknowledged fanfic on their show more than once, even the “Wincest” stuff.

    I’m with you, if anyone ever made a fanfic of my work I’d probably faint first and ask questions later. LOL.

  • AZGirl

    I can’t help but ditto both you and KindleLyn, Moki…. I would see fanfic of my works as compliments – at least after I woke up from the fainting spell. ;o)

    I agree that part of the reason they don’t come after fic writers is the expense. But, I also think that producers realize that fans express their loyalty to a show, book, etc. in many different ways. Before it was just conventions or gathering to talk at the watercooler, but now we have the internet and all the possible outlets such as fan sites, fic sites, etc. If a show went after just one segment of the fan base, the news would spread like wildfire on the net which would create very bad publicity. That’s definitely something shows do not want or need to survive to syndication…

    And, thanks for mentioning Supernatural’s nods to fanfiction. I’m LOL’ing all over again at the thought of those scenes…

  • Mokibobolink

    You make some good points too, AZGirl. I think most shows have come to simply accept the fanfic out there, knowing what it would mean if they tried coming after the people writing it and realizing that it can help, rather than hinder, their ratings.

    Supernatural has been fantastic. How can I not mention them? The discussion Sam and Dean had about “slash” is one of the funniest things I’ve ever seen on tv. – “They do know we’re brothers right?” – “Doesn’t seem to matter” – LOL!!!

  • AZGirl

    LOL! I laughed so hard I cried at that slash conversation betw Sam and Dean…!

  • Mokibobolink

    Me too! Best. Scene. Ever.

  • http://gaelicspirit.livejournal.com/ Gaelicspirit

    Moki — I found this blog post extremely interesting.

    Well, actually, at first I found it panic-inducing, and then reassuring, and THEN interesting. :)

    I just posted a question/concern about fanfic.net rules, infringement, etc., over on my LiveJournal and referred people back to this post.

    If you have time, I’d love your input on that post. You seem to have a way to find the path through the murk that I need to follow…

    LiveJournal post: http://gaelicspirit.livejournal.com/76030.html#cutid1

    Thank you!

  • Mokibobolink

    Hey Gaelic,

    Just popping up really fast to let you know that I won’t be able to take a look at your post for a few days. I’m currently out of town (posting via super slow hotel wi-fi) on a job and will be back early next week. I’m very intrigued though, so I’ll be sure to check it out.

    Gotta love technology. I pre-wrote a couple posts before I left and set them up to post this week while I was away. Awesome. :)

  • http://masterit.ca LoneWolf

    Hi. Just dropping in after the #7link challenge. I know that fan fiction has been a big industry for a long time, especially in the sci-fi genre, but I always thought the major issues that the writers faced was trademark infringement rather than copyright.

    The legal world is such a complicated mess, it’s no wonder that there is so much confusion. I suppose the lawyers love it as there is a never ending stream of work for them 8=)

  • Mokibobolink

    Hey LoneWolf, thanks for dropping by and leaving a comment. That is something I hadn’t thought about but I will research and see if I can come up with any info about the subject of trademark infringement as opposed to copyright. Might be interesting to see what info is out there.

  • http://masterit.ca LoneWolf

    I remember hearing about that a couple decades ago. I seem to recall people being able to write Star Trek fan fiction but not STTNG or something along those lines.

  • Mokibobolink

    Huh, that’s interesting. I’ll have to take a look to see what I can find.

  • Eleventhdr

    do you know  what at this point i n time i realy do not give a damn  and i’m sure as hell not going to write any stories with out mkaing some money on them hell if you can write a really good story then you should make money on it that’s the way i see it and want it so you are not going to see my stories until i make money on them i have some great ides  but am not going to writ them until i make money on them i want profit for my work that’s all!



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