When authors write stories featuring characters from other stories, movies or TV shows in new situations or adventures, these works of "fan fiction" (see FAQ: "What is FanFic?") may run into legal challenges because the borrowed characters, scenes or plots may be protected from unauthorized use under intellectual property laws. Specifically, fan fiction authors could be faced with copyright or trademark infringement claims. This page explains the rights original authors have under copyright and trademark law and gives fan fiction authors information about when their works might infringe those rights and what might happen as a result. Authors can use this information to understand the legal issues involved and to avoid infringement of otherís works while creating fan fiction. We explain below two major sources of intellectual property rights which fan fiction authors could infringe:
A copyright owner can stop someone else from (1) copying, (2) distributing, (3) performing, or (4) displaying the characters without the permission of the owner. The owner also can stop someone from (5) creating "derivative works". A derivative work is a new work based on someone else's intellectual property. A sequel to a movie, Rocky IX for example, is a derivative work. Fan fiction stories may be derivative works because they use the copyright protected characters from someone else's creation.†
Now that many fan fiction authors publish on the Internet, copyright holders can use search engines to discover their characters being used in unauthorized or unapproved ways. Many owners have tried to stop that use, and as a result, fan fiction authors have received letters telling them to take their stories off-line (cease and desist letters).†
Is fan fiction original or is it just a form of copying?
Copyright owners often ask why fan fiction writers don't just come up with something original. Scholars, however, have compared fan fiction's use of cultural figure to previous literary use of myth. They consider people who write new adventures for Buffy the Vampire Slayer to be engaging in the same pursuit as people who told tall tales of Paul Bunyan. Both use a character created by a different author to tell a new story.
Fan fiction authors can be seen as talking back to the dominant culture. They often show loyalty to a particular program such as Star Trek, but they also diverge from the television studio's plot. They sometimes celebrate minor characters who were not given prominent attention on the shows. For example, Lt. Uhura, the African-American woman who received little attention on the original Star Trek, is lavished with fan attention. Still, such stories may threaten commercial copyright owners seeking to protect a certain image of their characters. For example, a subgenre of fan fiction called "slash" describes homosexual relationships between characters. Some copyright holders may not want their characters portrayed in compromising situations.
Any word, name, symbol or device which is used by a person (or intended to be used), to identify her goods and to distinguish her goods from those sold by others and which indicates the source of the goods is eligible for trademark protection.†
A trademark owner has the right to use exclusively, or to license the name or likeness of his character to avoid customer confusion and to prevent others from profiting off of the owner's intellectual property. For example, you can't market "Star Wars ray guns", because LucasFilm owns the right to that name, and customers may be confused into thinking that your ray gun is sponsored or produced by LucasFilm. The primary question in a case of alleged trademark infringement is whether there is a likelihood of confusion for customers.†
There is another type of infringement, too, called trademark dilution. The owner of a famous mark is entitled to stop you from commercial use of a mark or trade name, if that use begins after the famous mark has become famous and harms its distinctive quality. Walt Disney used this concept to stop pornographers from using Snow White or Sleeping Beauty in their films. Fan fiction authors who distribute their work commercially may be accused of trademark dilution in addition to other intellectual property violations.
How can these pages help me?
Not all fan fiction is a violation of law - the purpose of these pages is to describe for fan fiction authors possible legal problems, in the hopes that the writers can then avoid these problems. This page is a resource for legal information if you do receive a cease and desist letter claiming youíve infringed someone's copyrighted or trademarked work.
- The FanFic Frequently Asked Questions (FAQs) presents specific examples, scenarios and detailed explanations which we hope will provide the FanFic author with information on what course of action he or she might want to take, whether it is removing the story from the Internet, ignoring a cease and desist letter, or calling a lawyer.
- The FAQs also contain brief explanations of the major intellectual property laws that may affect fan fiction authors.
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