How to avoid violating copyright when writing FanFiction?


What is FanFiction?

With the development of pop culture, the layer of its influence on society increases. At the time of 2021, there is a huge fan base, divided into societies, depending on their favorite work. Accordingly, in order to express their own creative potential, the fan base expresses it in the form of their own interpretation.

FanFiction is a kind of amateur composition based on an already existing popular work, such as books, movies, and TV shows, which is an alternative version of the plot. FanFiction authors are called ficwriters, and fan communities are called fandoms.

FanFiction is created mainly as an expression of love for the work of a certain author, or in order to disagree with the plot of the work.

Traditionally, FanFiction is written by and for fans without a specific monetization goal.

FanFiction culture is already more than 60 years old, and with the development of technology and the availability of ways to express and distribute creative content, the volume of distribution of creative thoughts of fans has increased many times over.

Also, one of the branches of the FanFiction community is the fan art community. Fan art is the visual expression of works, i.e. images, drawings with characters. Fan art can be made either manually or with the help of computer technology.

The largest fan communities are fans of "Harry Potter", the manga "Naruto" and fans of the k-pop group "BTS".

Legal regulation of FanFiction

To begin with, FanFiction can use the base of the work on which it is based in different ways. In some cases, the full character of the work is used, which entails a number of potential violations of the law, since the copyright and exclusive rights to the character as an integral part of the work are subject to protection along with the work as a whole, according to Article 1259 of the Civil Code. If the FanFiction is based only on the universe of the work, that is, the fictional world that the author came up with, its plot or ideas, then in this case the legal qualification such usage becomes difficult.

However, it is important to understand that the use of" universe " in FanFiction can vary. If the exact location in which the work takes place is used, for example, the village of Konoha from the Naruto manga, then it will be an integral part of the original work, which is subject to copyright protection. It is the use of any element of the same name from the original work that will serve as the basis for a theoretical requirement to stop copyright infringement by a fictionwriter.

At the same time, the use of an abstract space without using the title from the original work, even if the characteristics and main distinguishing features are similar, cannot and will not be interpreted as a violation of copyright. If you touch on the aforementioned example about the manga " Naruto "and the village" Konoha", then it becomes clear that if the FanFiction characters will operate on the territory of" Konoha", then the connection with the original manga will appear. But, if it will be the village of "X", where the active characters will also be ninjas, then such use is quite legal, since there are no links to "Naruto".

FanFiction itself is not an independent work, since it is created on the basis of an existing one. According to Article 1260 of the Civil Code, when creating FanFiction, a fictionwriter has the copyright to it, but at the same time it is necessary to observe the rights of the author of the original work.

Article 1260 of the Civil Code also applies to fan art and its authors, since fan art is also a derivative element of the original, along with fan fiction.

To reduce the risk of civil liability for using an original work as a base for creating fanfiction or fan art, it is customary in the world community of fiction writers to use disclaimers at the beginning of work, but in a large number of countries this disclaimer will not affect the legal qualification of such an action.

Can I monetize FanFiction?

With the global advent of the Internet, a large number of opportunities to monetize their creativity have appeared in the world, since the founders of fiction writing, due to the lack of distribution of the produced content, could not monetize the products of their creativity in any way, so the question of the legality of selling fan fiction arose relatively recently.

In accordance with Article 1281 of the Civil Code, the exclusive right to both the work as a whole and its component parts is valid for the life of the author and seventy years after. After this period, such an object is considered to be in the public domain. A work that has passed into the public domain can be used legally without obtaining permission from the author or copyright holder.

If a work has passed into the public domain, it is quite legal to use it for processing and creating fanfiction or fan art and use them for commercial purposes. However, it is necessary to check for legal successors, since in this case commercial use is prohibited.

To legally monetize fan art, you can purchase the rights to the characters and other components of the original work on which the fanfiction will be based from the copyright holders. It is important to understand that the rights to world-famous works are worth hundreds of thousands and millions of dollars.

To avoid the huge expense of using a character, a fictionwriter can only be inspired by the original work and create a new work that operates in its own "universe".

One of the world's best examples of such inspiration is the 50 Shades of Grey trilogy, whose author was initially inspired by the Twilight vampire saga when writing the work, but when faced with the impossibility of using such materials legally, she reworked the work, which is original and subject to legal protection.

A non-standard way to monetize fan art can be to use crowdfunding platforms, where the user can make a donation to the author, and he, in turn, writes a short fanfiction or creates fan art as a thank-you. When using such platforms, FanFiction or fan art is not the subject of a transaction, so there is no violation of the exclusive rights of the author of the original work.

Thus, writing FanFiction in itself cannot lead to any liability, but, in turn, the potential monetization of such content is a significant violation of civil law. To avoid potential sanctions from copyright holders, it is necessary to personally evaluate each case using the author's content. If you need help analyzing fan fiction for illegal borrowing, you can contact A4 Law Firm, where you will be provided with a full range of copyright and exclusive rights services.


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