FAQ: The Word on Fanfic |

Dear Colleen,

I know you have a lot to worry about with your work and how you want it to be used, and I always want to respect the creators and their opinions about their work. So, I was just wondering what you would think if I wrote A Distant Soil fanfic. I would not sell it or anything, I just want to write stories for myself. Is it all right if I show it to people or post it on my blog? I won’t do anything you don’t want me to do. I respect your hard work and your opinion, and would not do anything you do not want me to do.

Sincerely,

Karen French

Dear Karen,

First off, let me say how kind it is of you to ask! I am so very grateful for your consideration.

I have absolutely no problem with people writing fanfic of my work. Write away! I was also a part of fandom and did lots of fanfic and fanart when growing up, so I know how much fun it is.

A lot of fan activity exists in a kind of legal grey area. Some authors and artists never want to allow fans to make fanfic or fanart of their work. In all the years I have been a pro I have only had to step in and deliver a legal warning a couple of times when the use of my work got a bit out of hand.

Technically, fanfic and fanart are derivative works. Go to FANFIC QUESTIONS AND ANSWERS for a great website which will tell you just about all the legal stuff need to know about fan activity.

I don’t mind it if you post fanfic on your blog and share it with your friends. But please don’t make commercial use of my work. I usually try to not pay close attention to any fan use of my work, because I trust the fans to do the right thing.

Please don’t forget my copyright and trademark information.

As long as it stays “fannish” in nature and doesn’t stray into commercial enterprise, or as long as it doesn’t threaten the viability of my copyright and trademark interests, I will do nothing to interfere with your fun.

The only serious action I have ever taken against anyone in this area was when a former editor of A Distant Soil was found to have been writing and selling A Distant Soil fanfic some ten years after I stopped working with her. Due to the nature of the confidential information on my book to which she had had access, and the breach of professional boundaries, as well as the copyright and trademark concerns, we had to send her a cease and desist notice.

It might interest you to know that the first mainstream comics job offer I ever got was because I was working on a Legion of Superheroes fanzine when I was in high school. The fanzine was always sent to the DC offices so the pros could see it. Keith Giffen, the Legion artist, saw my work on that fanzine and called me on the phone one day!

Most pros I know support fan activity and would really prefer to NEVER take action against a fan.

It is so good and kind of you to ask, and I am glad to have this opportunity to share this information with other fans. Enjoy your writing!

2 Comments

Jeremy_A

March 10, 2009 at 9:44 pm

If enough people wrote fanfic about a particular body of work and wanted to publish it, would the work be rendered public domain since the creator hadn’t made earlier efforts to halt the fanfic or at least place restrictions on it?

Colleen

March 10, 2009 at 10:17 pm

That’s a great question, Jeremy.

An author can’t lost his copyright through lack of enforcement. That is to say, you will always be the legal author of the work whether you sue people for copyright infringement or not.

However, failure to enforce copyright can dilute the value of the right. For example, if people can just get your work anywhere, they have less reason to come directly to the author.

However, it is not true that failure to enforce copyright places your work in the public domain. This is a common misperception.

However, you CAN lose your trademark from lack of enforcement. If I fail to assert my legal trademark rights, the law can then decide that I have abandoned my trademark.

Trademark and copyright are not the same. Copyright denotes authorship, while trademark denotes the source of commercial goods.

If you fail to enforce your legal claim to protect the source of your commercial goods, then you no longer have sole claim to that trademark.

Consider the way words like Kleenex and Xerox have become such a common part of the language. Eventually, were the companies that own these marks to fail to enforce that use, they would lose the trademark on these words.

Trademark is an expensive right to assert. Trademark is also expensive to get.

If I choose not to go after every fan who writes a fanfic tale on a blog (and how could I possibly, with my huge legal and financial resources? Seriously…) I lose no rights to my copyright.

However, if fans started making t-shirts and so on, using my characters, then I would have no choice but to shut them down because they jeapordize my trademark. It could also be argued that fanzines using my trademarked title and character names jeapordize my trademarks.

I think a perfect example of your question in action is the case of JK Rowling and the Harry Potter Lexicon. Rowling had no problem with the website, which was a fanlisting and online Harry Potter encyclopedia.

However, the fans got too big for their britches, and decided to publish the website material, which made very heavy use of JK Rowling’s works. Rowling sued to stop it, and won.

That she had allowed the site to remain up and running for years had no bearing on the court’s decision.

If I give a fan a verbal license to write fanfic on their website, consider that at any time, I may also decide to take that license away if a fan abuses the privilege. I lose nothing by allowing fans to write fanfic, but can lose big if I allow them to stray into commercial use and abuse my rights.

The best thing for fans to keep in mind is simply to consider how they would like it if someone did the same thing to their work.

Jeremy_A

March 10, 2009 at 9:44 pm

If enough people wrote fanfic about a particular body of work and wanted to publish it, would the work be rendered public domain since the creator hadn’t made earlier efforts to halt the fanfic or at least place restrictions on it?
Colleen

March 10, 2009 at 10:17 pm

That’s a great question, Jeremy.

An author can’t lost his copyright through lack of enforcement. That is to say, you will always be the legal author of the work whether you sue people for copyright infringement or not.

However, failure to enforce copyright can dilute the value of the right. For example, if people can just get your work anywhere, they have less reason to come directly to the author.

However, it is not true that failure to enforce copyright places your work in the public domain. This is a common misperception.

However, you CAN lose your trademark from lack of enforcement. If I fail to assert my legal trademark rights, the law can then decide that I have abandoned my trademark.

Trademark and copyright are not the same. Copyright denotes authorship, while trademark denotes the source of commercial goods.

If you fail to enforce your legal claim to protect the source of your commercial goods, then you no longer have sole claim to that trademark.

Consider the way words like Kleenex and Xerox have become such a common part of the language. Eventually, were the companies that own these marks to fail to enforce that use, they would lose the trademark on these words.

Trademark is an expensive right to assert. Trademark is also expensive to get.

If I choose not to go after every fan who writes a fanfic tale on a blog (and how could I possibly, with my huge legal and financial resources? Seriously…) I lose no rights to my copyright.

However, if fans started making t-shirts and so on, using my characters, then I would have no choice but to shut them down because they jeapordize my trademark. It could also be argued that fanzines using my trademarked title and character names jeapordize my trademarks.

I think a perfect example of your question in action is the case of JK Rowling and the Harry Potter Lexicon. Rowling had no problem with the website, which was a fanlisting and online Harry Potter encyclopedia.

However, the fans got too big for their britches, and decided to publish the website material, which made very heavy use of JK Rowling’s works. Rowling sued to stop it, and won.

That she had allowed the site to remain up and running for years had no bearing on the court’s decision.

If I give a fan a verbal license to write fanfic on their website, consider that at any time, I may also decide to take that license away if a fan abuses the privilege. I lose nothing by allowing fans to write fanfic, but can lose big if I allow them to stray into commercial use and abuse my rights.

The best thing for fans to keep in mind is simply to consider how they would like it if someone did the same thing to their work.