FanFic Legalities


The legal aspects of Fanfic aren't really cut and dried. Its a gray area.

Technically, copyright is the ownership of all rights to make reproductions. Trademarks are the ownership of recognizable marks in trade.

In that sense, fanfiction, which is essentially an unauthorized use of trademarks or an unauthorized 'copying' are illegal.

On the other hand, fanfic is just one of a number of cutting edge areas of 'illegal' duplication which are not legally actionable. Any time you use a photocopier, copy a video image, dub an audio tape, you're infringing on copyright. It's so widespread it is literally impossible to police.

On the other hand, if it is not for profit, or done without commercial aspects, then it is hard to obtain damages. Copyright damages often consist of the money that the owner would have obtained if he'd used the copyright himself. Thus, no money, no profits, no damages.

Sometimes, damages are assessed as the 'reduction of value' or 'damage' to the original property. In most cases, however, fanfic can't be said to damage the original property. Rather, its real effect is to promote and further publicize the original material. Such 'reduction of value' damages are almost meaningless.

For most legal damages, fanfic is meaningless. If there are no damages flowing, there isn't much of a legal case, beyond the technical one.

In American law, there is a fair loophole, a couple of them actually, which would permit fanfiction.

One is legally able to infringe copyright in the form of parody. Thus, Mad Magazine is perfectly legal. I'd take the view that many fan fics are effectively parodies or renditions of the original.

There is also a second legal foundation, "fair comment" which is usually used to justify reviews of work. Necessarily, a review will contain visual quotes, clips, images, bits of dialogue.

Given that fanfics are not simple true reproductions, but rather, amount to examinations or commentaries, exploring the characters and situations in ways not fully done in the series, then I think a realistic defense of fair comment can be made.

Overall, I think that there's legitimate arguments to be made that noncommercial fanfic is legal. I'd base these on the legal doctrines of 'fair comment/fair use' 'parody' and issues of lack of damages as far as the copyright issues.

Of course, the issue is more complex with Trademarks. Trademarks are an actionable right. If they aren't enforced, they don't exist. Thus, a use of trademark creates a vulnerability to being sued. In fact, the trademark owner technically has to sue, or he may lose his right.

In this case, the noncommercial use of trademarks is right on the gray area. The best approach is to carefully use a disclaimer acknowledging the ownership and priority rights of the trademark holder and stating that no ownership is claimed in the use.


Dennis Valdron
Attorney at Law

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