In the midst of lockdown and the Covid scare, I have been guilty of procrastinating on my work and devoting my time to a binge fest of all the TV series and books that I had saved on my list of ‘Later’. As Rainbow Rowell profoundly states “It’s art, it’s not supposed to be beautiful, it’s supposed to make you feel something”. So it’s not surprising that I would often find myself on the last page hoping the books wouldn’t end so soon. As the ‘plot hangover’ rescinded, I took to the habit of looking up more fan theories and recommendations to keep the characters alive with me a little longer. And this has opened up the world of fanfiction for me. An entire community of people with their own spin-off on my favorite characters, had me obsessing over them, some so well written that it could be a chapter in itself. Which raises the question, what is the legal validity of fanfiction? How far does it land on the spectrum of copyright infringement and how can one protect themselves from the same?
What is Fan Fiction?
Also known as fanfic, it is a genre of writing stories or creating plots by the fans of a particular existing narrative of a book, movie, television series or play. It is fan produced, and uses either the characters or the set premise to create their own stories or versions of what could have been.
Wattapad, one of the largest growing platforms to read and write fanfiction defines ‘fanfiction’ as “For all intents and purposes fanfiction, is any fan-produced writing that uses, remixes, or subverts existing fictional stories, worlds or characters to create unique stories. It fulfills a social and emotional need for self-expression (and wish-fulfillment). It also forms community around interests and passions, simultaneously being driven by relationships and driving new ones.”
Needless to say, fanfiction has managed to carve itself a niche of copyright gray area, where the legality of such work and the extent of its protection is unsure and quite shaky.
“Fanfiction is breaking new ground, but it is also trying to retake ground lost centuries ago. Before the modern era of copyright and intellectual property, stories were things held in common, to be passed from hand to hand and narrator to narrator.”
– Lev Grossman, Fic: Why Fanfiction is Taking Over the World
It is not surprising, considering the vast reach of the internet and the global love of fanfiction that authors of the original work are often offended by the popularity of such works based upon their creative creation.
In 2004, the author of the Harry Potter series J.K. Rowling was accused of plagiarizing content and characters from late author Adrian Jacob’s book, ‘The Adventures of Willy the Wizard’. The Court of Appeal had ordered the estate to pay the first stage of £1.5m as security for costs. However, because no payment was made to the court, the claim failed  Even Chetan Bhagat in India has been accused of basing his story on someone’s existing work. However, unlike the above cases where the court favors the application of law of adaptation, fanfiction falls under the less exercised genre of ‘derivative works’ / ‘secondary works’.
The creation of ‘secondary works’ either authorized or unauthorized is not really motivated by monetary rewards. They are often non-threatening to the original work but aim to either criticize, find other dimensions or make parody of such works. Derivative works also fall under the same category of appropriating original work, not completely adaptive but not nearly transformative to draw a distinction from the authorized work either.
While most authors do not really engage in perusing such fanfiction as they see it as tribute to their work, and since such groups often help garner more publicity and appreciation for the original works, there are still some authors who try to curb such writing as a process of omitting any competitive growth based on their creative expense.
In the Indian Context it is clearly stated under the Copyright Act of 1957, that it is only transformative work which would gain the protection of copyright, that is work that is based on mere concept of the original work. For it is expressions not ideas that are protected under the copyright regime.
What does this mean for Fanfiction writers?
Hypothetically, a series called ‘ABC’, gets a popular fan base. Enough to get the author another books deal, and leading to monetizing from other sources of authorized creation from the ABC world such as video games, or t-shirts, or collectibles. The impatient fans themselves start brewing theories while awaiting the new release, and fanfiction writing blows up concocting the next tale in the fiction universe. The original author now wants to curtail such writing as it takes away from them the chance of choosing from the pool of creative possibilities. If they were to move against these small, singular possibility creators, with notice to cease, and their huge pool of resources, would such an online content creator engage in litigation? Usually not.
Other than the David versus Goliath analogy, since the distinction of fanfiction under law from derivative works is slim, the chances of courts favoring the author is huge.
In the landmark case of Eastern Book Company v. D.B. Modak, the Supreme Court laid down the doctrine of Modicum of Creativity. This Doctrine states that to establish any work as protectable under the copyright law, it wouldn’t suffice if something is original or novel, there is a minimum amount of creativity to the work that is required to protect it. Thus a “flavor or minimum amount of creativity” to additions can also be granted protection. However when it comes to fictional work it is still difficult to gauge the extent of variations that could receive such protection.
Should fanfiction writers stop creating such content?
Stories find home in the most surprising of places. Hence, most of the authors encourage their fans to continue such creations, and they often even engage on various platforms with them on their idea of the fictional universe. Still on the off chance that one might face a charge of infringement, keeping the Indian Law in mind here are a few things to take care of while writing. Section 52 of the Copyright Act, 1957, lays down the provision of fair dealing. The concept of it states that certain works would be permitted by law which would have under ordinary circumstances amounted to infringement. Since fan art is part of unauthorized derivative work under Indian law it may not be extended copyright protection but it can surely protect itself from being sued for infringement. To avail the same, fanfiction writers must keep the following in mind:
- Nature of Work: Based on the modicum of creativity, a lot of the protection extends based on the creative and original expression of the original work itself. Secondly adjudicating the ‘expressions’ used in fanfiction are in extension to the author’s creativity or merely use of qualities or physicality’s set in their work. For example, there have been numerous works based on Jane Austen’s work of Pride and Prejudice, published books based on the Victorian Elizabeth – Darcy composition, but they exist outside the scope of infringement under the law. So a fanfiction of a fanfiction, might not be able to claim much cover to build up a case for infringement as it is a derivative work itself.
- Purpose and Character of Use: If the fanfic is used for non-commercial, educational or personal outlet of the creator, it is more likely to be excused from being considered as infringing. Since fanfiction relies on the borrowed ideas of existing creations, it is harder to decipher which alteration to the original work is permissible and which isn’t. But if it is purely non-commercial in nature it often escapes scrutiny of the infringement suit. So I suggest you switch off that Ad Sense on your published work.
- Amount of Original Work Used in The Impugned Work: There is no given equation to calculate what amount or percentage of work would qualify as substantial enough to claim infringement; yet the more of original components introduced by a fanfiction writer in their story, the more the chances of courts’ consideration in their favor.
- Effect of Such Work on The Market: As hypothesized above, in case of ABC, if a derivative work starts to have a detrimental effect on the existing market of the original work, it would have higher chance of being scraped. If there is a commercial or creative dent to the original work, or if it defames or taints the meaning of the original work it may be deemed to be infringing upon the copyright of the author. So keep your story clean, give your disclaimers and do not cause trouble for the authors whose universe you adore.
As Sarah Alice Oakey in her work “Please Don’t Sue!: Regulation, Control and Ownership in Fan(Fiction) Communities” points out, fan fiction is one of the most ardent forms of showing appreciation and love for a story or characters. They are a popular study of literature now, and even contribute to the discussions of culture and language. Considering a lot of authors also enjoy the prestige, fame and popularity of their work through this medium, may be now it needs a little more defining outside the scope of the rigid guidelines of Fair Use, which compels one from sharing their own creative expression in a free manner. I for one am a fan of fanfic!
 Alisha Patkar, Five Authors who have been accused of Plagiarism, TOI, March 2018, https://timesofindia.indiatimes.com/life-style/books/features/5-authors-who-have-been-accused-of-plagiarism/articleshow/58593060.cms.
Devika Agarwal, Chetan Bhagat’s One Indian Girl v. Anvita Bajpai’s Drawing Parallels, FirstPost, April 2017, https://www.firstpost.com/living/chetan-bhagats-one-indian-girl-vs-anvita-bajpais-drawing-parallels-when-authors-are-accused-of-plagiarising-stories-3411514.html.
 (2002) PTC 641.
 Sony Corporation v. Universal Studios, 464 US 417, 479-480 (1984).
 The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House and Ors, 2008 (38) PTC 385 (Del).
 Sarah Alice Oakey, Please Don’t Sue!: Regulation, Control and Ownership in Fan(Fiction) Communities, Discipline of Media, School of Humanities, The University of Adelaide, March 2011.