Ok…But does Fanwork Violate Copyright?

This is where we get to this site not being legal advice: Maybe…maybe not.

Sometimes, the answer is going to be yes. If the rights holder doesn’t want people creating fanart or writing fanfic…then the fan may be best served by…not doing those things. Several authors have had issues with fanfiction. Perhaps most famously, Anne Rice has been notoriously anti-fanfiction.

But a lot of rights holders are totally fine with those things, especially if they’re not for profit, so figuring out what the opinion of the author (or, if they’ve signed away their rights, whoever has them), is always a good step in deciding whether you are ok to create work inspired by your favorite book, show, or movie. For example, if the show officially likes to share fanart…you probably are reasonably safe creating fanart.

That said, you might want to look more closely at what their opinion is about SELLING that art if you want to do that. For example, WB and JK Rowling famously sued over publication of a book by the creator of the Harry Potter Lexicon, despite Rowling having been supportive of the site prior to the decision to actually publish a book.

Even if the author or rights holder DOESN’T like your fan work, you may have an argument for fair use. But, as I’ll discuss more in another post, fair use isn’t an easy win. It’s an affirmative defense, so you basically have to admit that what you’re doing WOULD be infringement if not for the defense, and it’s a case by case determination. There are some things, like parody, news reporting, or education, that are often stronger cases. But if you plan to rely on fair use to make money off of a work based on someone else’s copyrighted work without permission (which can be individual or, in some cases, blanket)…it may be best to have a lawyer ready and prepare for a legal fight.

Ultimately, the key thing here is that the answer is: it depends. And, really, that’s one of the reasons I’ve created this site. I want to give people the tools they need to at least START making that assessment. And to know when to go to a lawyer for legal advice when they need to (not to mention, be able to speak intelligently with the lawyer about the issues)!