Today’s Shelf Life is about fanfiction. Let me rephrase: Today’s article in the Journal of Shelf Sciences is about fanfic. Shelf Life is rebranding as the Journal of Shelf Sciences. Maybe I will get an impact factor. The impact factor is negative two. This is Volume 3, Issue 1 of the Journal of Shelf Sciences. That’s because our Shelfiversary was over the weekend. Anyway this thing you’re about to read is about fanfic. Perhaps I can reposition Shelf Life as Journal of Shelf Sciences fanfic. That would be hilarious.
I was at brunch on Sunday with friends and we got talking about fanfiction and I ended up saying, “You know what I should write a Shelf Life about fanfiction” and this is that Shelf Life. It will answer questions like:
What qualifies as fanfic and what doesn’t?
What are the major types of fanfic?
What are the legal ramifications of publishing fanfic?
How can you get around above-mentioned legal ramifications for fun and profit?
And probably others as I think of them.
First: What is fanfiction? Let’s make sure we have a shared working definition. I touched on fanfic a bit in June’s Derivatives because fanfiction is, by default, derivative work. That article is a good one to read for some background on how copyright works in derivative writing. Fanfiction is not the only type of derivative but all fanfic is derivative.
Fanfiction is part of a larger category called fanwork or fan labor, which refers to creations made by fans of an intellectual property (IP), or person, or group, about that subject. Fanworks include fanfiction and fanart, but also things like fanzines (fan-run magazines about the topic of their fandom), fanfilms and fanvids, fangames, fansubs (translation and subtitling of a work by fans), downloadable modifications for video games, cosplay, and other stuff.
So, fanfic is a form of fanwork and so is a Baldur’s Gate 3 mod that lets you play as a Jedi (but is it a D&D fanwork or a Star Wars fanwork?) and so is the trailer for the fake live-action Legend of Zelda movie that circulates every now and then. All that stuff falls under the umbrella of fanwork.
I specified above that fan work can be made about a person or group of people, not just about IPs. Bands sometimes have fanwork created for or around them, and there is also a subcategory of fanfic called RPF, or real-person fanfic, which is fiction about real people—often celebrities or musicians.
Fanfic refers to stories that are written by fans and that use characters or settings from a work by another author. For instance a fan-written story about:
Ron, Harry, and Hermione going into business together after college opening a detective agency in Diagon Alley would qualify as a work of fanfiction: It uses JK Rowling’s characters and setting.
Frodo Baggins and Samwise Gamgee going to college together in New York City: It uses JRR Tolkien’s characters, though not his setting.
Builder McDwarferson, a Dwarf who is building the underground city of Moria in Middle Earth: It uses JRR Tolkien’s setting, though not his characters.
Here are some stories that are not fanfiction:
The life and times of teenage girl going to Forks High School in Forks, Washington: Although Twilight is also set in Forks, WA, Forks High School is a real place.
A retelling of another work, but with new characters and settings, such as West Side Story (1961; a retelling of Romeo and Juliet), Akira Kurosawa’s Ran (1984; a retelling of King Lear), or Bridget Jones’s Diary (a retelling of Pride and Prejudice).
Fanfic also does not include licensed fiction and media tie-ins. All those Star Wars and Star Trek novels you can buy in Barnes & Noble are not fanfiction. While their authors may be fans of the series, these novels are created with permission of the copyright holder and often are:
Commissioned by the copyright holder—that is, written as a work for hire
Part of the IP’s canon—that is, material that is officially part of the story or extended universe
Created for commercial purposes
Created with input from the copyright holder
Regarding that last: When a person writes a media tie-in novel, a Star Wars extended universe novel for instance, they do not typically get to write whatever they feel like using characters and settings that belong to the copyright holder (in this case Disney). Instead, the copyright holder provides guidelines to the writer covering what they can and cannot write about. The copyright holder may reserve the right to approve the plot before drafting begins or may provide a “series bible” with rules the writer must follow.
Fanfiction, on the other hand, is created without the explicit permission of the copyright holder (although some copyright holders explicitly appreciate and welcome fanwork); is not part of the story’s canon (that is, the events told in fanfic do not become part of the official story or series); cannot be sold commercially due to copyright restrictions; and are created solely by the fan author or authors, without direct input from the copyright holder.
On the fanfiction borderline are novels like Wicked: The Life and Times of the Wicked Witch of the West by Gregory Maguire, Wide Sargasso Sea by Jean Rhys, and Grendel by John Gardner. These fall under a literary genre called “revisionist literature” and, because they are based on original works that were int he public domain at the time of their publication, they were eligible for commercial publication. These works also have in common that they are critical retellings of the original work: All three are told from the perspective of the villain or antagonist in the original work and seek to offer an alternate way of looking at the original story. The movie Maleficent (2014) also fits the “revisionist storytelling” bill, but cannot be considered a fanwork at all because it’s part of the Disney canon.
So fanfic is an unlicensed work of fiction, written by a fan, using characters and/or settings borrowed from another, established work of fiction (or, in some cases, a real person).
Fanfiction can belong to any genre that regular fiction can; it can be sci fi, fantasy, romance, and so on. Fanfic need not belong to the same genre as the original work, although they often do. If I wrote the story I referenced above about Frodo and Sam going to college in New York, it would not be a high-fantasy story even though the original Fellowship of the Rings is a high fantasy novel.
That particular type of fanfic is called AU, or alternate universe, fanfic, and is one of several subgenres that are unique or mostly unique to fanfic. AU refers to a story that takes characters from an established story and puts them in an alternate universe to the one from the original story; for a work of fantasy, a real-world setting is an alternate universe.
Similarly there’s crossover fanfic, which mixes characters or settings from two or more original works into one fictional story. For instance, if I wrote a story about a war between the X-Men and the Transformers, that would be a crossover fanfic. If I wrote about a battle to the death the X-Men and the Transformers but it took place on a reality TV show for the entertainment of the people of District One and was narrated by television personality Caesar Flickerman, that would be a crossover AU fanfic.
Self-insert fanfic refers to a work of fanfiction in which the author includes themself as a character or even the main character. For instance, The Inferno by Dante Alighieri is a 250-page self-insert fanfic based on the Bible. Before you laugh, stop and think about how much of European Medieval and Renaissance art and literature is actually Bible fanwork according to the working definition we all agreed on above. I’ve been to the Louvre and there are rooms of nothing but wall-to-wall bible fanart.
Given that publishing fanfiction is pretty much always, by definition, violating someone’s copyright, what are the legal ramifications of publishing fanfiction? And conversely, if you are an author whose work has inspired fanworks, what is your recourse against fans using your IP?
The answer to both is, not much. As a fan author, there are not many legal ramifications for you for publishing fanwork as long as you are not attempting to make money from the fanwork you’ve created. Publishing your fanfiction in a fanwork archive (like AO3) for others to read for free? You’re probably never going to have a single problem but at most you could be asked, by the copyright holder or their representative, to take the work down.
Publishing your fanfiction on Amazon Kindle for $0.99? If you get caught you will have to take it down (at least) and may also be sued for copyright infringement. Do not try to sell (unaltered) fanfiction. Just never do this.
As an author whose work has inspired fanworks, likewise, there is not a lot of legal recourse if the fan author is not selling their work commercially. You can ask them to take their down. The general consensus is that fanfiction is allowed to exist as long as someone else’s IP is not being used for commercial purposes. This is why you hear about Disney and other large rights holders constantly sending takedown notices to Etsy shops selling items that use their IP, like a crochet pattern to make a Captain America doll or a t-shirt with Han Solo on it. As a rule of thumb, it’s all well and good until you try to make money and then they come after you.
But what if you really, really want to make some money off your fanfiction? When I parenthetically inserted (unaltered) above, I was hinting at it.
If you write a work of fanfiction about an original work that is under copyright, you cannot commercially publish it and sell it. However, a work is only fanfiction if it uses characters and settings from another work of fiction. If you change those characters and settings enough that they are no longer recognizable as being borrowed from the original, then you can publish and commercially sell it. Some instances where this have been done include:
Fifty Shades of Grey by EL James, which started life as Twilight fanfiction.
The Love Hypothesis by Ali Hazelwood, which started life as Star Wars fanfiction.
After by Anna Todd, which started life as Harry Styles/One Direction fanfiction.
If anyone ever told you that you’d never get anywhere in life sitting around daydreaming about Harry Styles, remember: They also made a movie of After. It grossed $70 million worldwide.
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