Writing fan fiction is a great way to explore the incredible stories and worlds created by your favorite authors, and imagining all the possibilities can be lots of fun! The author may have had the protagonist battling his rival in a climactic showdown, but what if—in your version—he instead reasons with his enemy and then helps her realize her dream of becoming a goldfish, or perhaps an interpretive dancer? Or what if all the main characters in a story you’ve read ditch the author’s plan of robbing a bank and open a cat café together? You and your readers may enjoy the fan fiction you’ve written so much, you might want to self-publish it! But should you? Before you start daydreaming about your new cover design, the experts at Self-Publishing Relief want you to consider a few things that can determine whether you should self-publish your fan fiction.
Caveat: We are not lawyers and do not give advice about legal questions; this article is for information only. Speak with an attorney about all legal issues.
Before You Self-Publish Your Fan Fiction, Consider Copyright And Fair Use
Fair Use is the part of copyright law that allows writers to use other creators’ copyrighted materials in their own works. It’s important to understand that Fair Use isn’t a set of hard-and-fast rules—it’s a list of courtroom considerations. Fair Use claims are judged on a case-by-case basis, and while following the principles below will make a lawsuit much less likely, it’s not a guarantee. The only way to be one hundred percent sure you’re safe is to get permission from the person or group that holds the rights for the original work.
The Principles of Fair Use
Purpose and character of the use: How you’re using copyrighted material is important in considering Fair Use. Educational materials are usually safe, as are noncommercial pieces. Websites like Archive of Our Own and Fanfiction.net that host fan fiction archives ban solicitation in their terms of service for this reason—if you make money off your work, you lose your easiest Fair Use defense.
Nature of the original work: While any writing can be copyrighted, some writing is more protected than others. It is easier to argue Fair Use when reproducing something factual or informative and more difficult when dealing with something creative. Fan fiction is almost always based on creative works, so there’s less wiggle room as far as this tenet goes. And be careful not to use pieces of work that haven’t been published yet, as it would make your Fair Use claims much weaker.
Amount used of the original work: You may have heard that sometimes “less is more,” and it’s especially true when talking about Fair Use. Copying elements from one scene in a book is much easier to defend than using most of the book. Fan fiction often involves building an offshoot based on the established story, so the question may be how “transformative” the work is.
Transformative works add something new to the original, usually changing the purpose or nature of the work. Parodies fall under this category, as does most fan fiction—and the more transformative it is, the better. Changing a minor character’s role in the finale of a book is going to be harder to defend than moving all of the characters to a new setting, or changing a comedy into a horror. Fifty Shades of Grey by E.L. James is well known for being originally conceived as fan fiction for Stephenie Meyer’s Twilight, and while the book itself is not derivative, the original drafts James posted online benefit from this Fair Use defense.
Potential effect on the market. The original intent of copyright is to encourage creators by allowing them to profit from their work, so the strongest Fair Use defense you can have is proof that your work won’t impact the demand for the original. Writing in a different genre from the original or to a different target audience and creating a highly transformative work are all good ways to solidify this argument.
While Fair Use guidelines address how to avoid violating an author’s copyright—if the work is no longer copyrighted, you can write and publish fan fiction to your heart’s content! Current copyright law extends protection for the author’s life plus 70 years, so some classic characters like Dracula and Sherlock Holmes are now in the public domain and free for anyone to use.
Question: Have you written any fan fiction? What book or characters is it based on?