Can an Author Write Fanfiction of Their Own Work?

The concept of fanfiction is both intriguing and complex. Essentially, fanfiction involves creating stories around a fictional universe or characters from an existing work, often expanding, altering, or referencing the original narrative. However, whether an author can freely write fanfiction of their own work depends on several legal and practical considerations.

What Exactly is Fanfiction?

For a work to be categorized as fanfiction, it typically requires the use of characters, settings, or elements from another established author's work. This means that in order to be classified as fanfiction, the author must reintroduce the characters or settings from an existing, copyrighted work. James Douglas Bozarth's work provides a notable example: 'Tota’s Tale,' which tells the story of 'A Fighting Man of Mars' from the perspective of the woman being stalked, does not qualify as fanfiction because it contains no original characters from another established author. However, in the sequel, 'Tora’s Tale Two,' Bozarth introduces his own original characters, essentially creating a new fanfiction setting. Both stories are accessible online for free.

Creating Characters in a Known Setting

It is indeed possible for an author to place characters of their own invention, whether these are characters from past novels or entirely new ones, within the framework of another author's work. This approach has been utilized in numerous works, such as introducing Hamlet or The Three Musketeers characters into a new story. In these cases, no permission needs to be sought from anyone for writing such a story. It is worth noting that while obtaining permission from the author to write a work set within their novel would eliminate any copyright issues, it is not a requirement.

Legal Considerations and Fair Use

One interesting aspect is the potential application of fair use in the context of parodies or commentaries on an existing work. For instance, in The Wind Done Gone by Anne Randall, the author reimagines the story of Gone With the Wind from the perspective of the enslaved black characters. This creative retelling sparked legal action; however, the 11th Circuit Court of Appeals ruled that it constituted a transformative work and was therefore a fair use. The case, Suntrust Bank v. Houghton Mifflin Co., detailed the process of determining fair use under US copyright law.

Essentially, transformative works can qualify as fair use because they add new meaning or purpose to the original work. While this possibility raises significant legal concerns, it also offers a potential avenue for writers to explore. Unfortunately, such defenses can be costly and uncertain until they are tested in a court of law.

Furthermore, using a work's setting under copyright protection without permission could result in copyright infringement unless it qualifies as fair use or another exception to copyright. In some instances, if no distinctive elements from the original work's setting are used, a court might determine that there is no substantial similarity to the original, thus avoiding copyright infringement.

Conclusion

While writing fanfiction or placing original characters in an existing setting presents numerous possibilities and creative opportunities, it is essential to navigate the complexities of copyright law. Consulting a lawyer with expertise in copyright law is recommended for obtaining reliable legal advice. This approach ensures that authors can understand and utilize their rights and responsibilities in a manner that respects the existing work and maintains legal integrity.

Fair Use

Under US copyright law, fair use can be a defense against claims of copyright infringement. It encompasses the use of copyrighted material for criticism, comment, news reporting, teaching, scholarship, or research. Determining whether a particular use is fair involves evaluating several factors, including the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for or value of the original work.

Copyright Infringement

Copyright infringement occurs when someone violates the exclusive rights of a copyright holder without permission. In the context of fanfiction, this could involve using significant portions of an existing work's setting, characters, or plot in a derivative work without authorization.

The Wind Done Gone and Suntrust Bank v. Houghton Mifflin Co.

The case of The Wind Done Gone serves as a significant legal precedent. In Suntrust Bank v. Houghton Mifflin Co., the court ruled that the new work was transformative, adding new narrative perspectives and interpretations. This determination helped establish fair use as a valid defense for certain types of derivative works, including fanfiction.

Seeking Legal Guidance

To navigate the legal complexities of fanfiction and writing in an existing setting, consulting a qualified lawyer with expertise in copyright law is advisable. Legal advice can provide clarity on the potential risks and rewards of engaging in fanfiction and authorize actions that respect the rights of all parties involved.