Review of Intellectual Property Law Blog

There and Back Again: Is it an “Original Work of Fiction” When It Has a Fan Fiction Background?

By Harini Ganesh on Monday, March 26th, 2012
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The world of fiction is buzzing over the fact that an erotic novel, E. L. James’s Fifty Shades of Grey, is the current No. 1 on the New York Times’s e-Book Fiction Bestseller list. As always, there are two sets of people: The fanatics and the detractors. But some of the detractors are amazed this book is on the bestseller list not because of its subject matter, but rather because of its origins.

James’s books – Fifty Shades of Grey is only one part of a trilogy – started out as fan fiction (“fanfic”). (Fan fiction is a creative work of writing done by fans of popular “fandoms” – such as Harry Potter, Lord of the Rings, or Twilight, just to name a few.) James’s work is not just your run-of-the-mill fan fiction, but Twilight-inspired erotica fan fiction. James wrote and posted her fan fiction on sites such as fanfiction.net, titled it “Masters of the Universe,” and released them commercially in 2011.

Vintage, who has published James’s Fifty Shades novels, has defended the books and has stated that the series is original fiction. In a statement, Vintage said that James “subsequently took” her fan fiction story and “re-wrote the work, with new characters and situations.” This begs the question: Can replacing character names and changing the settings of a fan fiction story enough to create an “original” work of fiction? A few years ago, Cassie Clare (another well-known fanfic writer) published her Mortal Instruments trilogy. She came under fire as ardent fanfic readers noted that the Mortal Instruments trilogy was a remake of her Draco trilogy, a work of fan fiction. Clare has attained a fan following for her Mortal Instruments work but has also lost credibility due to seemingly “copying and pasting” by replacing names and places in her new work.

Questions have arisen about whether fan fiction violates copyright law and whether they constitute unauthorized derivative works. The issue with Fifty Shades and the Mortal Instruments, however, is not that they are works of fan fiction, but rather that they started out as fan fiction and then were “remade” for publication by changing the characters’ names (originally Harry or Bella or Draco) and changing the setting of the story. In essence, it is a derivative work of the original work of fiction. Would copyright law find loopholes to allow the original copyright holder (of Harry Potter or Twilight) to sue for infringement?

Section 106 of the Copyright Act grants six exclusive rights to a copyright holder (“the bundle of rights”). These include the rights to reproduce, prepare derivative works, distribute copies, public performance of the copyrighted works, display the work publicly, and for sound recordings, to perform the work publicly through digital transmission.

What rights can a copyright holder claim against these works – or even fan fiction, for that matter? Rebecca Tushnet, a professor of law at Georgetown University, suggests that “most fan fiction…would be classified as fair use” under the Copyright Act. Fan fiction can be considered “transformative” and thus escape a copyright infringement claim. So is it a long shot to suggest that James and Clare’s novels (allegedly remakes of their fan fiction works) could be considered unauthorized derivatives of Twilight or Harry Potter? Probably. Now whether such works are actually models of good writing, that’s a different argument altogether.

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