CALL US: 206.533.3854
CALL US  206.533.3854
Full color aeon logo
By Source, Fair use,

Fan Fiction and Copyright Law

Copyright holders
Could sue fan fiction makers,
Usually don’t

The New York Times recently reported on copyright disputes taking place within a very specialized corner of the fanfiction world called the “Omegaverse.”

The creation of “fan fiction” involves using characters, settings, and plot elements from works of popular fiction and media and creating new stories – without the permission of the copyright holders.

Publishing fanfiction may technically violate the rights of the copyright holder and in particular the right to create “derivative works.”

As stated in the US Copyright Act,

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.

Even when an original work enters the public domain, a derivative work based on it can be protected by copyright law.
For example, Shakespeare’s Romeo and Juliet is in the public domain, but the musical West Side Story, which is based on it, is still protected by copyright, just as the forthcoming Steven Spielberg movie version is.

However, as the Copyright Act states,

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.

Thus, anyone else remains free to create new stories based on Romeo and Juliet.

Copyright owners generally don’t go after creators of fanfiction, as most fanfiction is published informally, on the internet, and not for profit, and thus doesn’t adversely affect the market for the original works.

However, in 2015 CBS and Paramount filed a copyright lawsuit against the makers of Star Trek: Prelude to Axanar, a fan-made short film. The case settled on the eve of trial.

Fanfiction creators who want to more formally publish and profit from their work sometimes change the identifying details to make the copyrighted source material less obvious. This is known in fanfiction circles as “filing off the serial number.”
Perhaps the most successful version of this was the Fifty Shades of Grey series, which originated as Twilight fan fiction.

Just like the haiku above, we like to keep our posts short and sweet. Hopefully, you found this bite-sized information helpful. If you would like more information, please do not hesitate to contact us here.

Related Articles

Federal Circuit Allows “Trump Too Small” Trademark

Federal Circuit:
First Amendment allows the
“Trump Too Small” trademark

Read More

When is trademark generic?

Generic trademarks:
Won’t be granted to start with,
And can be cancelled

Read More

AEON Law Founder Named Crypto “Trailblazer” by the National Law Journal

Adam Philipp, the founder of AEON Law, has been recognized among the leading practitioners of blockchain, cryptocurrency, and fintech law by the National Law Journal.

Read More

Stay Informed

Sign up to receive Patent Poetry—a monthly roundup of key IP issues in our signature haiku format. Four articles (only 68 syllables); zero hassle.



International IP Protection