Fan fiction – created by fans of a work of fiction, set in the world created by popular authors is not a new phenomenon. It does not have to be in the form of a book: fans can also create comics, movies, computer games, cartoons, anime, manga, anything that can tell a story. While fan fiction can take many forms, it poses a risk to copyright holders. Copyright law is a crucial tool for navigating the increasingly complex relationship between creators and passionate fans.
In this article, our copyright solicitors explain what constitutes copyright infringement when it comes to fanfiction and the steps copyright owners can take to enforce their intellectual property rights.
Contents:
- What precautions can fanfiction authors take to avoid infringement allegations?
- Can UK fanfiction writers seek permission from copyright holders to avoid infringement?
- If a person does not benefit financially from fanfiction can it still be considered infringement?
- Can fanfiction writers rely on fair dealing to avoid infringement claims?
- How can copyright owners determine if fanfiction is copyright infringement?
- Can fanfiction authors be held legally responsible under UK copyright law?
- Trade mark infringement and passing off
- What actions can UK IP holders take against copyright infringement?
- Summary
What precautions can fanfiction authors take to avoid infringement allegations?
Treading a careful line to avoid infringing copyright is never easy. Much depends on the attitude of the copyright owner: some encourage fans to write their own stories, most are probably indifferent, and some are distinctly against fanfiction – to the extent that they might even take legal action to stop it, especially if the fan is creating something that the copyright owner might wish to do themselves, or which reflects badly on the author.
Copyright is carefully calibrated to strike a balance between the interests of authors and of users of the copyright work – readers, of course, but also other stakeholders including subsequent authors who wish to allude to what the first author has written. As a general principle, though not one that is stated in so many words in UK copyright law, there is no copyright in just the idea, and to attract copyright protection a work must be substantial enough to be worthy of the name – a single invented word is not a “work”, and neither is a song title.
So just using the name of a character from the earlier work is unlikely in itself to be a problem. Copyright is infringed when someone takes the whole or a substantial part of the copyright work: a character’s name will not be protected by copyright in its own right, but the names of a number of key characters, as well as their back-stories and characteristics, might well be regarded as a substantial part of the work.
Even if copyright would not protect the name of a single character, if a person writes a new story about that character – even if, apart from the hero or heroine, they carefully use a completely new cast for their story – the author or publisher of the original story might well have registered the character’s name as a trade mark. Even without a trade mark registration, if a person uses that character’s name in the title of your work they could be accused of passing off – misrepresenting a persons work so as to take advantage of the goodwill in the character’s name.
Can UK fanfiction writers seek permission from copyright holders to avoid infringement?
The obvious solution is to ask the author for permission. This is a much more reliable solution than relying on the fact the author concerned has indicated publicly that they don’t object to fan fiction.
Authors will often publish their work under Creative Commons licences. There are several “flavours” of CC licence, so check which terms apply, but it might be that the author has given everyone the permission they need to write fanfiction. Even if the licence doesn’t go that far, the fact that an author is a Creative Commons fan probably indicates that they will be receptive to a request for permission.
Keep in mind that the authors might not be in a position to give permission. Often they will have assigned their copyright to a publisher, and publishers usually have shareholders who are likely to be unimpressed when someone else uses the company’s property. Check with the chosen author, and if necessary ask the publisher – but be prepared for rejection.
If a person does not benefit financially from fanfiction can it still be considered infringement?
Even private activities can constitute copyright infringements. Even if a person has not made money from an activity doesn’t stop it being unlawful. If they have not made money the copyright owner might not be able to get an award of damages against the infringer.
Can fanfiction writers rely on fair dealing to avoid infringement claims?
Most of the discussion about fanfiction on the Internet is US-centric and you must not assume that what is OK in the US will be OK here too. Or vice versa!
What we do have in UK copyright law is a permitted act covering fair dealing for the purposes of caricature, parody or pastiche. Although the Copyright, Designs and Patents Act dates from 1988, this is a 2014 amendment that helps us to understand its scope. We cannot even say with certainty what is caricature, parody or pastiche, though it seems highly likely that fanfiction would fall into at least one of these categories. What is clear is that, to be seen as “fair dealing”, a pastiche may not compete commercially with the proprietor’s exploitation of the copyright work. Fanfiction does not substitute for the “real thing”, of course, and indeed may boost sales of the original author’s books, but it could deprive the author of an opportunity – in the worst case, perhaps, a fan could publish a story that pre-empts the latest story that the author has just completed and submitted to the publisher.
Another important factor in determining what is fair would probably be the attitude of the copyright owner. If they have been encouraging to fans writing their own stories, a person may be more likely to argue that the fanfiction is fair dealing: if they have denounced fanfiction, it’s unlikely that a judge is going to allow a fan to do something that the copyright owner clearly does not believe is fair.
How can copyright owners determine if fanfiction is copyright infringement?
Every case differs on its facts, so even if a very similar case has already been decided that isn’t the end of the story, although it might not leave much wriggle-room.
The publishers who usually own the intellectual property rights that they allege have been infringed will frequently prevail over an individual, who may not have infringed at all or at worst may just have been ignorant about copyright. For fans accused of infringement, it’s usually going to be a matter of trying to mitigate – to settle the dispute at the least cost.
Can fanfiction authors be held legally responsible under UK copyright law?
A copyright owner’s first claim will be that the fan has reproduced a substantial part of the work in which they own the copyright. After that it will be a matter of investigating to find out who is responsible for other infringing acts, such as publishing the fanfiction in printed form or making it available (online) to the public, making a film from it, making sound recordings (audiobooks), translating it and so on. That might reveal that publishers, film studios, and record companies are all involved too. Internet service providers may also have played a part, though generally they will bear no responsibility for third party content using their services.
At the beginning of this chain is the fanfiction author, and they will certainly be liable for their own infringing activities. Whether the copyright owner will consider that going after them is a good idea is another matter, especially if there are companies with deeper pockets involved in the infringement, but that does not alter the question of where liability lies. If a writer has been lucky enough to find a publisher for a fanfiction book, they will have given them warranties that your work does not infringe anyone else’s rights: if the copyright owner doesn’t come after the infringer, their publisher might.
Trade mark infringement and passing off
In recent years there has been a huge uptick in the use of trade mark registrations to protect valuable properties such as characters in books and films. There are many registrations of Harry Potter trade marks in the name of Warner Bros, for example. The main reason for building a portfolio of trade marks is likely to be to support an extensive merchandising programme, but it does also place another hurdle in the way of someone writing fanfiction.
Using a trade mark in a story, to identify a character, is unlikely to amount to an infringement. Using it in the title of a story, or even worse in the title of a series of stories, is more likely to be an infringement. That’s because the essence of a trade mark is that it identifies the source of goods or services, and while a character buried in the story isn’t doing that job, offering the story to the public with his name in its title, or offering a series of stories with his name in the title, is potentially giving a message about the origin of the story or series. Something to counteract this message (using the word “unauthorised” in a prominent place, for example, or “authorised by …” if that is the case) would help but cannot be guaranteed to be a complete solution.
The law of passing off can also be used to protect such things as characters’ names, whether or not they are registered as trade marks. The essence of the passing-off action is the protection of goodwill, and (for example) Ms Rowling clearly owns goodwill in the name of Harry Potter. Whether that goodwill is damaged by a character with that name appearing in someone else’s work of fiction is, however, difficult to say – and probably pretty unlikely.
Not selling fanfiction should also help avoid problems with trade mark infringements and with passing off. If you are selling, the use of registered trade marks in any way means you have to tread carefully. Check the UK register of trade marks at www.ipo.gov.uk and make sure you cover trade mark use in any agreement you make with rights owners.
What actions can UK IP holders take against copyright infringement?
Letter of claim
A letter of claim must be sent to the defendant before any action is started, setting out clearly and fully what case they will have to answer if and when proceedings are issued. Threats are frowned upon, and in some areas of intellectual property law (including trade marks but not copyright) can be actionable in themselves.
The fan might have to undertake not to write or publish any more fanfiction that infringes the author’s rights, or perhaps just to accept restrictions on what they may and may not write. The quality of the fan’s work may well have a bearing on the terms on which an agreement can be reached, and it is not unknown for fan disputes to end with the fan being given a semi-official role. A good settlement is more likely if you can go into negotiations with something positive to offer.
Take legal action
If a letter of claim does not lead to a settlement of the dispute, the copyright owner can sue for infringement. The chances are that it will be a small claim in financial terms, and not one that requires lots of evidence and witnesses, so it is likely to be suitable for the Intellectual Property Enterprise Court which has the merit of being relatively quick and cheap. Like all courts, though, it is best avoided if at all possible.
Limitations
Copyright infringement is a tort, and legal actions for torts are statute-barred six years after the infringing act comes to the copyright owner’s attention. This does not mean that if a person wrote fanfiction more than six years ago they are in the clear, though, because there’s probably still an infringing act going on – the story is probably still on a website somewhere available to the public. So the copyright owner can still bring an infringement action, but can only claim for infringements within the past six years.
Injunctions against fanfiction creators
An injunction is likely to be the remedy the copyright owner most wants. They could be entitled to damages or an account of the infringer’s profits.
Summary
Like many contemporary developments, fanfiction poses big problems for copyright law – and copyright law poses big problems for fanfiction writers. If someone has used your intellectual property rights to create fanfiction there are several ways we can help enforce your rights. Alternatively, if someone has accused you of copyright infringement we can act on your behalf in court or negotiate a fair settlement.
