Why You Can’t Charge for Fanfiction

Do You Know Why You Can’t Charge for Fanfiction?

I enjoy fanfiction as much as, perhaps, the next person. But you still can never, ever charge for it. I implore you: don’t even try.

Seriously, put it out of your mind. Someone owns that copyright. And that someone is not you.

But aren’t there exceptions?

Yes, there are some. But they have limitations. Do not hang your hat on them. So first, let’s talk about why fan fiction is problematic.

There are Issues With This Form of Expression

For writers like you and me—and Stephen King and JK Rowling as well, etc.—we prepare our own universes. Some universes are familiar and take any number of real-life elements.

For example, King’s The Stand mainly takes place in more or less present-day America. King does not run into any copyright issues with New York City being New York City. Other places in the book, though, are more the product of his imagination. In Rowling’s Harry Potter universe, though, a lot more of the scenes were dreamt up by her.

For both authors, and for countless others, originality consists of creating a universe, creating characters, devising a plot, and then executing the plot in some fashion. Even in familiar settings, there is still scene setting and universe creation. But it’s more a function of subtraction that addition. That is, you don’t make New York City. You just take the Chelsea section of it.

But that’s not the case with fan fic. In fan fiction, another person (or persons) created the universe and the characters. Even when the fanficcer adds characters, the fictional world remains the original author’s creation. Hence one of the main issues with fan fiction is that it keeps the fanficcer from learning how to do that.

Fair Use and Other Exceptions to Copyright

Time to look at the law.

Per 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use:  

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Can You Use a Fair Use Argument?

Eh, not really.

So the sad old truth is that there are only a few ways to get around copyright. In general, you’re a lot more likely to be able to claim fair use if what you write is educational. This includes citing passages in scholarly works and articles.

If you’re writing an article about Star Trek, no one’s going to have a winning copyright case against you if you write “Live Long and Prosper.” Hell, they wouldn’t even have a good case against me right now, either. Educational, yo’. And, you might be able to argue that the phrase is a part of the general public lexicon now, much like “Live and Let Live”.

The “nature” bit in the law mainly refers to whether the source material is published. Published source material is more likely to be the foundation for fair use. With fan fiction, at least, that is virtually always the case.

Amount and substantiality is a kind of sliding scale. My writing LLAP, above, is tiny when you compare it to the vast array of Trek products, writings, and broadcasts out there.

Finally, the effect part can cover everything from whether the public would be deceived by a too-close copy to using the characters for out and out porn. And while even porn can sometimes that can be seen as parody, recognize that parody is often even harder to prove.

What About Saying You Don’t Want to Make a Profit, or Not Selling it?

Neither matter. 

You can write up disclaimers until the cows come home. But they have nothing to do with the above statute. As a result, this means you can be on the receiving end of a lawsuit even if you give your stuff away. Yep, even if you pay people to take it.

But as a practical and public relations matter, big rights holders are less likely to sue when it’s freebie fanfiction.

Why?

Because the last thing many large corporations want is for the press to turn it into a David and Goliath situation. And these corporations really don’t want to potentially lose and see their copyright get chipped away at. Also, these corporations know that most fan fiction isn’t too popular. So, why draw attention to it?

I’m not suggesting you have free rein, by the way.

Seriously, if Disney (for example), tells you to knock off with fanfiction, do yourself an enormous favor and do so. You do not have the House of Mouse’s deep pockets and access to a stunning array of experienced, high-priced attorneys.

Benefits of Fanfiction

It’s not all bad, of course. The biggest and most measurable benefit is that it keeps you writing. You can often spark creativity by simply being creative, that is, you write five or seven days per week, and you can fill up that writing time fairly readily.

But if you only write three times per month, you may find you have writers’ block when you make the infrequent attempt. There is something about the pressure of deadlines or at least the pressure of your own internal expectations. It helps to not have a blank page to stare at all the time.

There is nothing whatsoever wrong with borrowing another’s universe in order to keep writing and exercising the creativity muscle.

Just don’t try to sell it.

Do YOU know why you can’t charge for #fanfiction? Does it really matter? If you don’t want to be sued, it sure does! #amwriting