By Intan Wirayadi

By publishing a book or other forms of works of art, the creator is sharing with the rest of the world his imagination and creativity. There is certainly something fulfilling and liberating knowing that your story is popular and that of people are engaging with your characters (which would more likely or not be fictional or fictionalised). Moreover, there is also the possibility of cashing in on your story’s or characters’ popularity with thousands, if not millions, of fans. You’ve created a vast and exciting playground in which you play with your imagination, watched by your adoring fans. But would you let these fans come in and use your playground to join in the fun too?

Neil Gaiman once said that his book, American Gods, no longer belonged to him once it got popular. A creator would most definitely still have copyright ownership over his story and his characters unless they have entered public domain—works which either have expired or forfeited copyrights (ie. Sherlock Holmes and Moby Dick), or have never been copyrighted in the first place. It is one thing to deal with fans’ over-protectiveness and sentiments, but what about fan-created works which borrow characters and plots from the work for themselves? It is not uncommon to stumble upon fanfictions (fan-made stories) in which Jacob Black gets Bella and dojinshis (fan-made manga) of Sasuke’s and Naruto’s epic tragic love for each other. Unlike officially approved works—such as novelisations or movie adaptations of certain works—of characters or stories, these fans do not seek the creator’s permission to use their characters and stories in their works. Many thought-provoking questions arise from Fanworks – more pertinently, what are the legal implications of such fan-created works?

A sizeable bulk of mass media consumed by productive fans around the world is produced in the United States and hence would be subject to United States copyright law. An “original work of authorship fixed in any tangible form of expression” automatically gains copyright protection (17 USC 102(a)). Fanworks are categorised as derivative works as the original works are recast, transformed or adapted in any form (17 USC 101). A copyright would grant only the owner—usually the creator of the original work—the exclusive right to “prepare” derivative works (14 USC 106(2)).

The problem with fanworks has nothing to do with there being someone else other than the original creator using the storyline and/or characters without his permission. Contentious legal issues arise when such fanworks are published and distributed for mass consumption. Writing or drawing Harry Potter and his friends beyond The Nineteen Years Later on a piece of scrap paper in class would not give rise to problems, but posting it on Livejournal or Deviantart could. If JK Rowling (this is hypothetically speaking, of course; JKR and her lawyers have specifically mentioned they are not against fanworks as long as they are not published for commercial profit[1]) saw your work and decided to exercise her exclusive right to prepare derivative rights, she could sue you for copyright infringement.

The most likely defence you would use would then be to claim that your writing or drawing of Harry Potter was a fair use of her character. You could prove that you did not earn any commercial profit from your Fanwork, that it would not affect the value of her work (17 USC 107). It would also be helpful if you added a disclaimer to your work. Most disclaimers are phrased as such: “Harry Potter belongs to JK Rowling and this is just a fanfiction/fanart made for your pleasure and not for profit”. If you did a bad job writing or drawing your Fanwork such that Harry looks distinctly different or if you forget to draw in his signature round-frame glasses and lightning-shaped scar, it would also be to your advantage: if the court can distinguish your characters as described in your work from how JKR wrote them, there would not be an infringement (Bucklew v Hawkins, Ash, Baptie & Co, 329 F.3d 923, 929)[2].

In real life, however, it is not implausible that creators would sue fans for creating unapproved derivative works. Creators are divided as to their stances on fanworks (especially fanfictions) but even those who oppose them mostly just ask fanfictions sites to remove and/or ban fanfictions based on their original works. Most creators probably understand that the bad publicity gained from suing your own fans would not be worth the litigation suit. As such, most would turn a blind-eye to not-for-profit fanwork activities.

Sharing your imagination with the rest of the world can be enriching spiritually and financially. However, there are lines not to be crossed and it is best if we are aware of what these legal boundaries are in order to protect ourselves.

[2] “A copyright owner can’t prove infringement by pointing to features of his work that are found in the defendant’s work as well but that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.”