We live in a world where fan communities–fandoms–are becoming increasingly popular. Fandoms fixate on a particular television show, band, movie, musical, anime, or other pop culture subject. Creation of content based on these fandoms has also become ubiquitous. People of all ages gather together on any number of fanfiction websites, ranging from social media sites that post stories and art, like Tumblr and Live Journal, to websites designed for fanfiction, like Fanfiction.net and Archive of Our Own. Some fandoms have even developed websites devoted entirely to fanfiction for a particular couple or desired couple, known to many as a “ship.”

When using characters and worlds created by other people, however, there are quite a few potential copyright issues. Fan creations have become so popular that some fandoms are even branching out and making money from their fanfiction and fan art roots. Yet getting the “rights” to your own work is a nightmare when you’ve used a couple from your favorite television show. Though some fandoms have successfully made the switch from unoriginal characters to new creations, many struggle with it.

Fanfiction and fan art are always going to be a part of fandom communities because they bring people together in a way so few things really can. These fandoms have created large communities all over the internet. “Harry Potter,” for instance, is still hugely popular in the fanfiction world, even though J. K. Rowling and Warner Brothers have successfully fought against fan creations.

What exactly are your rights when you take to your computer and write or draw that missing scene from “Once Upon a Time?”

The Official Word

According to a University of San Francisco law blog, fanfiction “can be considered a copyright violation under the Copyright Act of 1976, ” because the holder of the copyright has the right to distribute any derivative works based on an original creation. This often includes sequels, prequels, and art work.

One of the most famous cases of a fan-fiction author is that of J. D. California who penned a sequel to J. D. Salinger’s “Catcher in the Rye” and called it “60 Years Later: Coming through the Rye.” During this case, it was found that characters were granted copyright protection–in this case, Holden Caulfield, an iconic character in Salinger’s novel.

Many would argue that fair use may actually protect fan creations like artwork and stories from being copyright infringement, but many authors have still successfully fought that claim. Legal challenges tend to come more from book authors than movie or television show creators for pretty pragmatic reasons–fandoms often boost the number of viewers for television shows.

So why are so many publishers now actively looking for fan-fiction authors? In part because these stories are sometimes better or more successful than the canonical source material. One cannot ignore the success of recent fanfiction-based novels like “50 Shades of Grey.” Rebecca E. Hoffman for Bloomberg describes how “50 Shades” got around the fan-fiction ties:

But before they became ‘real’ books, they were a Twilight fan fiction series called ‘Master of the Universe.’ ‘MotU’ appeared on fanfiction.net and–with Twilight references removed and character names changed–was later published as three e-books by an Australian company that specializes in fan fiction publishing. Vintage Books, a subdivision of Random House, which ultimately published the Fifty Shades trilogy, maintains that the material is original and no longer based on ‘Twilight.’

According to a Washington Post interview with Jennifer Bersgtrom, Vice President and Publisher of Gallery Books, fanfiction is simply becoming a way to recruit talented authors. She stated, “fanfiction has absolutely become part of the fiber of what we publish. This is changing at a time when traditional publishing needs it most.”

Most fanfiction is safe if it doesn’t criticize or parody the works in question. Even so, the Internet and Intellectual Policy Clinic at the University of San Francisco points out that the only way a person would get in trouble is if the person who holds the copyright ever sees the work:

It is clear though that the law surrounding fanfiction is highly dependent on the copyright owner actually enforcing their rights and prosecuting offenders of their copyright. In cases such as J.K. Rowling in which she is choosing particular pieces of work to prosecute while letting other works that violate her copyright be published, the law clearly sides with her.

The Legal Dos and Don’ts of Fanfiction

The Don’ts

The biggest rule you need to know to avoid getting into copyright hot water is to determine who exactly owns what you are writing about. Some authors simply do not like fanfiction and are very open about that fact. Vulture says that “some authors–George R.R. Martin, Anne Rice, and Diana Gabaldon, author of the Outlander series, among them–protest [fanfiction’s] appropriation of their creations and ask fans to refrain from writing it.” They mostly target websites based on the stories, but have targeted large forums as well.

Some fanfiction creators also have some problems in that they don’t know where to draw the line. Typically there are concerns about RPF or Real Person Fanfiction. Celebrities like Chris Colfer of “Glee” and Taylor Swift have said that they find fanfiction and fan art uncomfortable, especially when it is explicit in nature. Swift has even gone so far as to get fan creations taken off of Etsy, though that may be more of a business decision.

Read More: Taylor Swift vs. Etsy Vendors: Singer Trademarks Song Phrases

It isn’t always easy, however, as every writer, designer, and artist has the right to make the choice for themselves where they want the line drawn and whether or not to take legal action. It is then up to the forum and fandom at large to enforce that line as they see fit, an important thing to remember when dealing with fanfiction and fan art.

Nonetheless, as Hugh Howey told Desert News National: “Just as there have been independent filmmakers [who] enrich the film industry, there are and will be independent authors who experiment and write groundbreaking works.”

The Dos

If you truly love a fictional couple, a storyline, or a show, you might still want to write fanfiction or create fan art, and there is truly nothing wrong with that. However, you should take note of a few rules to keep yourself out of the limelight and out of trouble.

1. Follow the rules of the online forum: Most forums that post fanfiction and/or fanart have been around for a long time for a reason: they know how to skirt the line. Look at the rules and FAQs of a website before you upload your latest “Shameless” story.
2. When in doubt, go for public domain: The Daily Beast points out that there is a lot of Jane Austen fanfiction. Why? Her works are all part of the public domain, meaning you can use the characters however you see fit. According to Teaching Copyright, public domain occurs “70 years after the death of author, or, for corporate works, anonymous works, or works for hire, 95 years from the date of publication or 120 years from the date of creation, whichever expires first.” If you are using something a little more modern, use a disclaimer, meaning make sure that you state clearly that you don’t “own” whatever you are writing about.
3. Take it down if you need to: Online musical theater troupe Team StarKid famously took down A Very Potter Musical when they feared that Warner Brothers would sue them. They re-posted the material after some severe edits and a disclaimer on the video–and then went on to make two more and were invited to the screening of the final movie. Most creators or agents will start with a mailing or a polite request, and you should probably grant it.

4. Don’t make money from it: This might seem like a no-brainer, but do not make money from your work if it’s based on someone else’s creations. Don’t sell your art or stories, do not get sponsors, and don’t use advertisements. You are saving yourself a load of potential headaches from the people who own the content.

Conclusion

In the end, the best thing to remember about fanfiction, fan art, and anything derived in any other universe is this: it is typically an infringement of the copyright holder. With that said, it is usually done with the best of intentions by fans and it often continues and strengthens the importance of the story being told.

When creating within a fandom, use your head to make decisions about what is appropriate and what isn’t appropriate and you likely won’t find yourself in trouble. It’s also important to note that if you are creative enough to take pre-existing characters and create new stories, you are probably creative enough to make your own original characters.

Resources

Primary

U.S. Copyright Office: Duration of Copyright

Additional

Bloomberg BNA: It’s Never Black or White: Is Fanfiction Fair Use?

Desert News National: With Fanfiction, is Publishing Following in Hollywood’s Unoriginal Footsteps?

Teaching Copyright:  Public Domain Frequently Asked Questions

Washington Post: From ‘Fifty Shades’ to ‘After’: Why publishers Want Fanfiction to Go Mainstream

University of San Francisco Law Blog: Fanfiction and Copyright Law

Vulture: Fanfiction Guide

CNN: Lawsuit Targets ‘Rip-Off’ of ‘Catcher in the Rye’

Daily Beast: Why Fanfiction is the Future of Publishing

Geeky News: Unauthorized Starkid Production Brings Wrath

The New York Times: Rowling Wins Lawsuit Against Potter Lexicon

Fox News: How Harry Potter Superfans Won a Battle for Fair-trade Chocolate

People: Fifty Shades of Grey and Nine More Examples of When Fanfiction Became Blockbusters

USA Today: Must-Read Fanfiction From ‘Doctor Who,’ ‘Star Trek,’ ‘Farscape’

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Re-Writing the Classics: What Are Your Fanfiction Rights? appeared first on Law Street.

Lawsuits, crime, and drugs ruled the news last week and the most popular articles at Law Street were no exception. The #1 article of the week, from Anneliese Mahoney, detailed the suit over royalties earned by “50 Shades of Gray” won by a woman in Texas; #2, also from Mahoney, covers the explosive news out of Chicago that there is a secret ‘black site’ where Americans are held outside of the justice system; and #3, from Alexis Evans, is the story from Wesleyan University where nearly a dozen students were hospitalized in apparent Molly overdoses. ICYMI, here is the Best of the Week from Law Street.

#1 Texas Woman Wins Big “50 Shades of Grey” Royalties Lawsuit

It seems like one of the most popular topics of conversation these days is the movie version of the erotic novel sensation “Fifty Shades of Grey.” (Spoiler alert: It’s really bad. I went hoping to make fun of it and have a few laughs, and it was too awful to even laugh at.) But one woman may be laughing soon–laughing all the way to the bank, that is. An Arlington, Texas woman named Jennifer Lynn Pedroza just won a major “Fifty Shades” related lawsuit. Read full article here.

#2 Chicago “Black Site” Allegations Yet Another Example of Police Brutality

News of a secret detention facility in Chicago broke this week and it’s sparking horror and outrage across the country. This “black site,” revealed by the Guardian, is a nightmare image straight out of a post-apocalyptic movie. People are “arrested” and taken to this site, which is inside a warehouse in Chicago’s Homan Square. Then they are subjected to inhumane treatment. They aren’t afforded the rights that the U.S. Constitution promises all of us. Read full article here.

#3 Mass Molly Overdose Hospitalized 11 Wesleyan Students

Connecticut’s Wesleyan University was flooded with sirens Sunday night as almost a dozen students were rushed to hospitals after reportedly overdosing on the party drug commonly known as Molly, or MDMA. The exact number of alleged victims varies, with police reporting that 11 students were hospitalized for the drug, while Wesleyan University President Michael S. Roth reported the figure as ten students and two visitors in a letter sent to students Monday morning. Read full article here.

Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

It seems like one of the most popular topics of conversation these days is the movie version of the erotic novel sensation “Fifty Shades of Grey.” (Spoiler alert: It’s really bad. I went hoping to make fun of it and have a few laughs, and it was too awful to even laugh at.) But one woman may be laughing soon–laughing all the way to the bank, that is. An Arlington, Texas woman named Jennifer Lynn Pedroza just won a major “Fifty Shades” related lawsuit.

Pedroza used to work with a business partner named Amanda Hayward who’s based out of Australia. They worked together at “The Writers Coffee Shop,” which publishes e-books. “Fifty Shades” was actually first published as an e-book and a print-on-demand book by The Writers Coffee Shop after it gained fame as an online fan fiction written by British author E.L. James. The rights were eventually sold to Random House.

Pedroza, one of the original founders of The Writers Coffee Shop, claims that Hayward took steps to restructure their partnership for supposed “tax reasons.” In doing so, Pedroza was no longer in a position to receive the royalties from the books and resulting movie(s). Pedroza claims that Hayward tricked her into signing the paperwork. While Pedroza did receive some money when the rights to the book were first sold to Random House, she didn’t receive any royalties that come from the book and its subsequent endeavors.

Given that the book has sold more than 100 million copies worldwide and the movie had an $81.7 million opening weekend, that’s the potential for a lot of royalties.

The suit claims:

Hayward signed a contract on behalf of the Coffee Shop with Random House for the rights to the ‘Fifty Shades’ trilogy in exchange for millions in advances and future royalties but, because of her chicanery, all payments flowed to her and not the partnership.

Pedroza originally filed the lawsuit in a Tarrant County court in Texas, and after a nine-day trial and three days of deliberations, the jury found in her favor. They made their determination on Thursday.

Pedroza appears to have asked for one million dollars in the court documents, but it will be up to a judge to decide how much she’ll actually be awarded. It’s going to be in the hands of State District Judge Susan McCoy. She’ll make that determination based on financial records of the sales. Although those records aren’t open to the public, it was estimated that her share could have been anywhere from $10-20 million. Mike Farris, Pedroza’s attorney, said that it will be in the seven figures.

Originally, there was a third woman involved in the lawsuit named Christa Beebe, who also partnered with Pedroza and Hayward. She, however, settled her lawsuit in December under confidential terms.

While it’s yet to be determined how much Pedroza will end up profiting, it’s safe to say that she came out on top. While no one knew that “50 Shades” would be such a success, the people who made it happen obviously all deserve a piece of the pie.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Texas Woman Wins Big “Fifty Shades of Grey” Royalties Lawsuit appeared first on Law Street.

Copyright law took center stage last week as not one but two famous singers took vendors and fans to court over their intellectual property. The number one article of the week is from Anneliese Mahoney who brought us the case of Katy Perry versus the vendor who produced 3-D figures of the infamous “Left Shark” from Perry’s Superbowl halftime performance; the second most popular post was from writer Morgan McMurray who threw the flag on “50 Shades of Grey” and its abusive storyline; and the number three article, from writer Alexis Evans, details Taylor Swift’s legal action against Etsy vendors making a buck off her song lyrics. ICYMI, here is the best of the week from Law Street.

#1 Katy Perry Claims Left Shark is Her Intellectual Property and Files Suit

Katy Perry’s halftime performance at last week’s Super Bowl was really great, but it wasn’t without its moments of humor. Unfortunately, one of those moments of humor has now sparked the pop star’s legal team to file a lawsuit. Read full article here.

#2 Fifty Shades of Grey and Abuse

You may have heard of a small erotic “novel” (I use the term loosely), which once started off as Twilight fan fiction and has become a worldwide, bestselling trilogy soon to be a major motion picture. I am of course referring to the phenomenon known as Fifty Shades of Grey by E.L. James, which follows the story of timid Anastasia Steele and her BDSM-loving boyfriend Christian Grey. Read full article here.

#3 Taylor Swift vs. Etsy Vendors: Singer Trademarks Song Phrases

America’s red-lipped singing sweetheart Taylor Swift is at the center of another intellectual property dispute, this time with vendors on Etsy. The dispute is over several items, including t-shirts using her likeness and candles adorned with her lyrics. Swift’s legal team sent several vendors on the online DIY marketplace cease and desist letters demanding the immediate removal of their trademark-infringing products. Read full article here.

Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.