Professional Authors and Fanworks

In recent weeks, partly prompted by Diana Gabaldon’s publication of her fan fiction policy, some other professional authors have been moved to declare their positions (pro, con, or in between) on fanworks. The OTW has also been contacted by some professional authors who like fan fiction, but worry if it poses a danger to them in some way.

For the record, the OTW believes that noncommercial fan works are an important form of cultural conversation and don’t require the approval of the original work’s author or owner. While fair use is a key component of our intellectual property system, it’s also important to talk about other aspects of the law that may assuage some fears.

Q: I’m a professional creator. Do I need to avoid reading or acknowledging fanworks based on my own works?”

Answer Under The Cut!

A: This is essentially a personal decision. If it will upset you to read, view, or watch fanworks based on your works, then don’t.

Authors are sometimes advised to avoid reading or acknowledging fanfiction transforming their own work, as it is in theory possible that an author could read a story, go on to write something similar, and face a claim by the fan that she copied the fan’s work. There are many reasons to discount this risk, the least of which is that case law is all in the first author’s favor: no court is going to be receptive to a claim that a later work by the first author in the same universe infringes the fanwork. Among other things, when people begin with similar premises, it isn’t at all surprising that they will end up with similar ideas–but copyright law protects the specific expression of an idea, not ideas. Even if a fan work is similar to a later work in the same universe, similarity of ideas (say, how wand magic works in Harry Potter) isn’t sufficient for a copyright claim.

However, not being able to win doesn’t erase the possibility that someone could threaten to sue. The real issue is that it doesn’t take a fanwork to generate a threat! If an author reads her fan mail or online reviews, she might encounter a fan’s ideas about what should happen with the characters; if she reads other books, she might encounter a storyline or character similar to a storyline or character she might later use. In fact, the typical author-versus-author infringement case involves claims that one work copied another, apparently unrelated work.

The OTW’s mission includes explaining the difference between ideas and expression. A lot of people may have the same idea about what should happen on the next season of House; but if they each write different stories expressing the idea differently, then those stories don’t infringe each other.

In short: a professional creator is no more at risk (and arguably, a lot less at risk) of being sued by a fanfiction writer than of being sued by any other author who’s ever written anything. J.K. Rowling, for example, has been sued by English children’s writer Adrian Jacobs (author of The Adventures of Willy the Wizard); American author Nancy Stouffer (who claimed that Harry Potter was a ripoff of her character “Larry Potter”), and the band the Wyrd Sisters–none of whom are fans.

Legal Advocacy, Spotlight
  1. Dark Emeralds commented:

    I appreciate the straightforward clarity you bring to this issue.