This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. You can access the new platform at https://opencasebook.org. Thank you.
Works of fanfiction are stories exploring the world of another work and thrive despite existing in a legal gray area. Millions of people write fanfiction and live under the threat of being sued for it. This module explores what existing case law there is for understanding the legal issues around fan works, and provides several representative examples of fan works in several genres.
By rough estimation, as of 2010 there were upwards of three million pieces of fanfiction on one of the most popular sites, fanfiction.net. To put that in perspective, 328,259 books were published in the United States in the same year. Though this module focuses on fanfiction as it exists on the internet, some authors argue that fanfiction is as old as Western literature—Virgil’s Aeneid and Shakespeare’s Troilus and Cressida both take a bit-character in Homer’s Iliad and spin his experience into another story, which is a typical story-telling approach found in fanfiction.
Modern fanfiction is a product of fandoms (fan communities) which center around a creative work like a television show, a book series, or a movie. These fandoms also produce videos, art and music. Scholars of fandom sometimes argue fans are active participants in culture, even culture found in media (tv and movies) which are occasionally decried as encouraging passive consumption. By remixing, fans become cultural creators. Like many online communities, fandoms have a homegrown vocabulary, which is used sparingly throughout this module. Please see the bottom of this precis for a list of common fandom vocabulary.
Fanfiction raises a number of legal issues but to date there is no clear legal answer to the question: is fanfiction legal? Though trademark and occasionally libel come up in discussions of how the law treats fanfiction, copyright infringement claims are the most common concern of fanfiction writers. While the most common theoretical defense for fanfiction is that it is protected by fair use, it is valuable to begin evaluating whether it is infringing from the beginning of a copyright infringement analysis, with the question of “substantial similarity” and the “total concept and feel, theme, characters, plot, sequence, pace, and setting”. The defense for fanfiction is still theoretical because there has been no case where a content owner has sued and won (or lost) against a non-commercial author creating creative content based on the other author’s work.
Throughout this module consider: given that most fan communities assume they have no legal recourse in internal intellectual property disputes, what might we learn from the extralegal approaches which have arisen within fandoms? What might fans' active engagement with source texts tell big content producers seeking new profit models? What might the queer and feminist readings of mainstream texts found in fanfiction tell us about online communities and off-line social change?
Fanfiction is a rich legal gray area and whether you finish this model believing none, some, or all examples of it are legal, you will be able to discuss it within the context of copyright and trademark law.
Fanfiction: A genre of creative works which rely in part on characters, settings, or themes from other works of fiction. Often non-commercial, often communally-produced, there are over than 3 million pieces of fanfiction online today written in a wide range of languages, styles, and fandoms. Often abbreviated to “fanfic” or just “fic” and nearly never called “fan fiction” by those who write or read it.
Fan Work: An umbrella term which includes fanfiction, fanvids, fanart, fan music, cosplaying, and other forms of fannish expression.
Fandom: a community of people passionate about a creative work. Fandoms often gather to share their attachment to a work in communities on social media sites like tumblr, LiveJournal and Facebook, and produce content for other members of the fandom and post it publicly on general platforms such as YouTube or fan-centric ones such as An Archive of Our Own, FanFiction.net, or animemusicvideos.org. In addition to producing creative works, many fandoms also create non-fiction works analyzing the source text or interactions within the fandom, known as “meta.” TVTropes is a multi-fandom example of meta, but fans also post their analysis on their Tumblrs, Facebook pages, personal websites, and fan-sites.
Fanart: visual art by fans, serving the same function as pieces of fanfiction: a work of fanart explores the characters, settings, or stories of an established world. The examples below include both gifsets (moving images in the .gif file format arranged to make an argument) and more traditional illustration.
Fan Music: Music written by fans in the world of a show. Pieces of fan music serve the same function as pieces of fanfiction: they explore the characters, settings, and stories of an established world. Filk music, or filk, is a subset of fan music which began to be produced in the mid-20th century at science fiction and fantasy conventions.
AU (Alternative Universe): This term is used to describe a piece of fanfiction where the author has made significant changes to the canon. Examples of AUs are stories reimagining characters as college students or space travelers or magically endowed or without magic. The term is occasionally used to describe a story which starts in compliance with canon and then diverges, but the narrower definition is more common.
Het: het refers to a story or a romantic pairing which involves two people of opposite genders. The term is an abreviation of the term “heterosexual.”
Slash: slash refers to a story or a romantic pairing which involves two people of the same gender, often men. The term comes from the typical way in which pairings are denoted in fan communities. A story about the Star Trek characters Spock and James Kirk as a romantic pairing would include the tag “Kirk/Spock”, which reads “Kirk slash Spock” or “slash” for short. A pairing or story involving two women may also be called “slash” or “femslash”. Many writers of slash argue that writing stories about presumably straight characters being bi or gay is their creative response to destructive heteronormativity in popular culture, unduly strict constructions of gender norms, and the refusal of commercial cultural producers to present LGBT role models. Those involved in reading or writing slash occasionally engage in off-line political involvement:
http://fandomsforfckh8.spreadshirt.com
http://legendoffangirl.tumblr.com/post/26046615414/found-at-a-pride-parade-these-people-need-to-be
Edit playlist item notes below to have a mix of public & private notes, or:
MAKE ALL NOTES PUBLIC (5/5 playlist item notes are public) MAKE ALL NOTES PRIVATE (0/5 playlist item notes are private)1 | Show/Hide More | Feral Copyright and Fandom |
Feral copyright is a term describing copyright as it is understood and practiced by non-practitioners. Because fanfiction is a legal gray area, most definitive statements about it are expressions of how copyright is understood in the wild rather than an actual legal opinion.
The first two pieces here explain a particularly important example of feral copyright—an incident involving a fan and published author Marion Zimmer Bradley which has influenced how many older authors view fanficiton. The third is an example of one way fans try to interact with copyright—by assigning away their rights to the characters in the stories they write. The last is a lengthly and well-argued piece making the case that fanfiction is a natural extension of a more honestly communal approach to cultural creation.
1.1 | Show/Hide More | Marion Zimmer Bradley Fanfiction Controversy |
1.2 | Show/Hide More | The Contraband Incident: The strange case of Marion Zimmer Bradley |
1.3 | Show/Hide More | The Piteousness of Disclaimers |
1.4 | Show/Hide More | FanFiction.net Content Guidelines |
In addition to published authors and fanfiction writers and readers having to negotiate copyright in the wild, the online service providers who host fan works have their own policies. This is a link to a copy of fanfiction.net's position.
The official version of the list of authors who have informed fanfiction.net they do not want their works to be mentioned in fanfiction is here (but it requires a user account to view): https://www.fanfiction.net/story/story_tab_guide.php
Here is the list:
Anne Rice
Archie comics
Dennis L. McKiernan
Irene Radford
J.R. Ward
Laurell K. Hamilton
Nora Roberts/J.D. Robb
P.N. Elrod
Raymond Feist
Robin Hobb
Robin McKinley
Terry Goodkind
1.5 | Show/Hide More | "I'm done explaining why fanfic is okay" by Aja Romano (bookshop) |
1.6 | Show/Hide More | Thomas Jefferson to Isaac McPherson |
2 | Show/Hide More | Fair Use (Fiction <-> Non-Fiction) |
2.1 | Show/Hide More | Rowling v. RDR |
2.2 | Show/Hide More | Nash v. CBS, Inc. |
2.3 | Show/Hide More | Nash v. CBS, INC. |
2.4 | Show/Hide More | Castle Rock Entertainment, Inc. v. Carol Pub. Group, Inc. |
3 | Show/Hide More | Parody |
3.1 | Show/Hide More | Campbell v. Acuff-Rose Music, Inc. |
3.2 | Show/Hide More | SUNTRUST BANK v. HOUGHTON MIFFLIN COMPANY |
3.3 | Show/Hide More | Salinger v. Colting |
4 | Show/Hide More | Fair Use (Fiction -> Fiction) |
4.1 | Show/Hide More | WILLIAMS v. CRICHTON |
4.2 | Show/Hide More | NICHOLS v. UNIVERSAL |
4.3 | Show/Hide More | Campbell v. Acuff-Rose Music, Inc. |
4.4 | Show/Hide More | Salinger v. Colting |
4.5 | Show/Hide More | SUNTRUST BANK v. HOUGHTON MIFFLIN COMPANY |
5 | Show/Hide More | Fan Work Hypo |
Hypo: A friend emails you with a fan work she created and asks if it is a violation of anyone’s copyright and whether it might be protected under fair use. Drawing on Campbell v. Acuff Rose, SunTrust Bank v. Houghton Mifflin Co., and Salinger v. Colting, what do you think?
Note: Many of the fan works included as options in this hypo can be found in full-text on H2O. However, unless you are already familiar with the communities from which fanfiction arises, you may be well-served in reading/watching/listening/viewing the work you choose to analyze in its native location. For example, “300 Things” has received 3868 views on An Archive of Our Own, 1248 comments on the author’s LiveJournal, and is a subject of regular discussion on Tumblr; this information may help you understand the context of your hypothetical friend’s fan work.
5.1 | Show/Hide More | Fanvids |
5.1.1 | Show/Hide More | Blame it on the Fandom |
5.1.2 | Show/Hide More | Secret Asian Man: Artist's Statement of Intent |
A fanvid critiquing the tv show Firefly’s lack of Asian characters. Firefly was set in a future universe whose culture stems equally from American and Chinese sources.
If you do not wish to download the video from the creator's site, you can view it through YouTube: http://www.youtube.com/watch?v=Hv5HN4lU2w4
5.1.3 | Show/Hide More | Untitled | Sherlock BBC |
5.1.4 | Show/Hide More | Bad Romance x Avengers |
5.2 | Show/Hide More | Fan Music |
5.2.1 | Show/Hide More | "Doctor Who on Holiday" by Dean Gray (ft. Green Day & The Timelords) |
5.2.2 | Show/Hide More | Star Trek - Bein' Red - Filk Song |
Filk song about “red shirts” in Star Trek The Original Series.
Red Shirt: a fan-term for a character who is minor and will die by the end of an episode. It originated in the Star Trek fandom, as the characters who often died as part of the plots of the original series wore red shirts.
5.2.3 | Show/Hide More | The Castiel Song |
5.3 | Show/Hide More | Fanfiction |
5.3.1 | Show/Hide More | Cauterize |
5.3.2 | Show/Hide More | Lunch and Other Obscenities by Rheanna |
This fanfic tells the story of Nyota Uhura's first year of interactions with her with her bright-green roommate at Starfleet Academy whose homeworld taboos are different than Uhura’s. It is 9473 words long and has received 537 comments on the author's LiveJournal account: http://rheanna27.livejournal.com/110953.html
The author also archived it a personal site: http://www.goldenmaze.com/lunch.htm
5.3.3 | Show/Hide More | 300 Things by cautionzombies (Uncollaged) |
This is an excerpt from a longer fanfic in what is known as a “College AU”, where the characters and relationships of a work are translated into a college setting. In this case, it is a Supernatural fanfic, where Dean Winchester is struggling to finishing his degree while paying for his younger brother’s private school and saving up for his father’s rehab. Castiel Milton becomes one of his professors. It is also a slash fic, meaning it includes a same-sex relationship between the two central characters.
Because it is uncommon for a fan to read stories from fandoms she is not involved in, this story is best read with some background in the source text. As in many Alternative Universe stories, the characters and their relationships stay static across setting changes: Dean and Sam Winchester are still brothers, their father's failures and successes as a parent still drive their lives, and Castiel (here an English professor rather than an angel) still provides them protection and friendship during a difficult time in their lives. Though there are more formal summaries available, the fan-created TV Tropes page does a good job of explaining the competing facets of this piece of popular culture: http://tvtropes.org/pmwiki/pmwiki.php/Series/Supernatural
Though the example stories included here are shorter, many of the most popular pieces of fanfiction are novel-length. The entirety of 300 Things is 76863 words or 154 pages printed out (you only need to read for first 2399 words, until the first section break). This fic has received 3868 views on An Archive of Our Own (http://archiveofourown.org/works/285374), 1248 comments on the author’s LiveJournal (http://cautionzombies.livejournal.com/12895.html), and is a subject of regular discussion on Tumblr (http://www.tumblr.com/tagged/300-things). Again, you only need to read the first 2399 words (until the first section break).
5.3.4 | Show/Hide More | 300 Things by cautionzombies |
This is an excerpt from a longer fanfic in what is known as a “College AU”, where the characters and relationships of a work are translated into a college setting. In this case, it is a Supernatural fanfic, where Dean Winchester is struggling to finishing his degree while paying for his younger brother’s private school and saving up for his father’s rehab. Castiel Milton becomes one of his professors. It is also a slash fic, meaning it includes a same-sex relationship between the two central characters.
Because it is uncommon for a fan to read stories from fandoms she is not involved in, this story is best read with some background in the source text. As in many Alternative Universe stories, the characters and their relationships stay static across setting changes: Dean and Sam Winchester are still brothers, their father's failures and successes as a parent still drive their lives, and Castiel (here an English professor rather than an angel) still provides them protection and friendship during a difficult time in their lives. Though there are more formal summaries available, the fan-created TV Tropes page does a good job of explaining the competing facets of this piece of popular culture: http://tvtropes.org/pmwiki/pmwiki.php/Series/Supernatural
Though the example stories included here are shorter, many of the most popular pieces of fanfiction are novel-length. The entirety of 300 Things is 76863 words or 154 pages printed out (you only need to read for first 2399 words, until the first section break).
This fic has received 3868 views on An Archive of Our Own (http://archiveofourown.org/works/285374), 1248 comments on the author’s LiveJournal (http://cautionzombies.livejournal.com/12895.html), and is a subject of regular discussion on Tumblr (http://www.tumblr.com/tagged/300-things).
Again, you only need to read for first 2399 words (until the first section break).
5.4 | Show/Hide More | Fanart |
5.4.1 | Show/Hide More | Noble Maiden Fair |
The mother and daughter from Disney's Brave. In an example of the way that fans engage in multiple media while creating, the author of this image notes she was listening to the song “Noble Maiden Fair” from the Brave soundtrack while she was drawing: http://www.youtube.com/watch?v=5CgJInUF7-Y
Here is another copy of the same image: http://skittzipoo.tumblr.com/post/26424890342/noble-maiden-fair-by-seanchaithe
5.4.2 | Show/Hide More | Sometimes you have to be your own white knight. |
5.4.3 | Show/Hide More | Superfamily |
This image is of “superfamily”. There is a popular communally-created Alternative Universe in the Avengers fandom in which the orphaned child Peter Parker (who would become Spiderman) is raised by Tony Stark (Iron Man) and Steve Rogers (Captain America), who are married to each other. This jointly-held vision is usually termed “superfamily” and the marriage of Steve and Tony “superhusbands.”
It is also an example of a cross-over, though one which exists within the same narrative universe. The Marvelverse (the fictional world in which the X-Men, Captain America, Iron Man, Spiderman, Thor, and all of the Avengers exist) is one world but in the case of superfamily many authors are pulling the current Marvel vision of Spiderman from the comics (that he is a child) into the movie Marvelverse of the Avengers where Captain America is played by Chris Evans and Iron Man by Robert Downey Jr. Cross-overs are an example of the ways in which fans remix source texts.
5.5 | Show/Hide More | Other Fanworks |
5.5.1 | Show/Hide More | Austenbook |
5.5.2 | Show/Hide More | Run Program: DUM-E by Amuly |
5.5.3 | Show/Hide More | Star Wars Tatoos |
Find Items |
Search below to find items, then drag and drop items onto playlists you own. To add items to nested playlists, you must first expand those playlists.
This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. If you would like access to the new version of the H2O platform and have not already been contacted by a member of our team, please contact us at h2o@cyber.law.harvard.edu. Thank you.