FANFICTION AND COPYRIGHT: BALANCING BETWEEN CREATIVITY AND INFRINGEMENT

FANFICTION AND COPYRIGHT: BALANCING BETWEEN CREATIVITY AND INFRINGEMENT

BY TANNU MISHRA

ABSTRACT

This article seeks to understand the copyright laws in India and the United States regarding the status of fanfiction in both jurisdictions. This article emphasizes how statutory rights, the doctrine of fair use, as well as moral considerations, may determine whether fanfiction is viewed as wavering between infringement and as being a type of creative expression.

KEYWORDS

Fanfiction, Copyright Infringement, Derivative Works, Fair Use Doctrine, Transformative, Non-Commercial, Participatory Culture, Creative Expression.

INTRODUCTION

Another term used to describe fanfiction is fanfic, which is defined as fiction written by the fans of a particular work of fiction, films, or even television series, being inspired by characters in those works. For instance, when a Pokémon fan writes a story about the show, it is defined as fanfiction. It also supports the spirit of participatory culture, in which the fans become the co-authors, retelling stories and illustrating points of view that can be easily overlooked in the mainstream discourse. They also promote a comprehensive ecosystem of appreciation, which rewards the work of a creator. Fanfictions have gained legitimacy due to the launch of digital platforms like Wattpad, which provides a platform for such authors to publish their creative works.

However, in relation to fanfictions, copyright infringement is an issue because of its ambiguous legal nature. While it helps the original work gain appreciation, it also raises questions about the meaning of fair use and derivative works. It also raises some moral considerations in this context. For instance, some authors may feel morally correct to control how their characters are used, and in such cases, fanfiction creators could unintentionally harm their sentiment. Additionally, if the fanfiction about a particular work is created without the original creators' consent, it will cause them emotional distress, and their possible reluctance to create, thereby resulting in the suppression of creativity.

Although fanfiction is derivative in nature, it may be considered an acceptable form of creative expression both by Indian and U.S. copyright law upon satisfying the requirement of transformative use and its non-commercial purpose. This article aims to study how statutory provisions and judicial interpretations in both jurisdictions legally view fanfiction and its engagement with the participatory culture and the issue of copyright infringement.

LEGAL STATUS OF FANFICTION

How creative works are shared, reimagined, and consumed today differs due to the development of the digital landscape. An example of such a change is fanfiction, a form of creative writing that reuses characters, settings, and stories of existing works. In other words, it refers to creative works written or illustrated by fans inspired by the original creation. Nowadays, this has become popular, including the favorite novels, alternative endings, and the imagined continuities of famous TV series. By allowing fans to interact with the works they admire and grow an online fandom with the names inspired by the original creation, such as the Potterverse representing the Harry Potter fandom, fanfiction encourages a vibrant participative culture. A large number of fanfic authors view this activity as a creative re-creation that adds value to the original work. Globally original creators like J.K. Rowling, Gene Roddenberry (Star Trek), have supported the creation of fanfictions, whereas works like Axanar and the Master of the Universe faced lawsuits alleging copyright issues.

The legal position of the fanfictions is unclear and commonly accepted in the case of the transformative and non-commercial use, but still unclear when there are similarities to the original work and its monetization. While this creative expression often reflects enhanced engagement with the original creation, there is a chance that it would simultaneously lead to the reproduction of the original materials, raising copyright issues. This tension is due to a legal vacuum where the boundary between creative reinterpretation and unauthorized use is blurred.

LEGAL FRAMEWORK

To possibly resolve the above dilemma, it is necessary to look into the copyright laws of two leading jurisdictions, i.e., India and the United States. Both jurisdiction adopt their legal approach that defines the orientation towards the legal nature of fanfiction and the possible infringement.

The copyright law in India is mostly influenced by the Copyright Act of 1957. Sections 13, 14, and 57 are the main sections in the act. They must be read as a whole to understand what copyright protection entails and its application. Section 13 defines the nature of works that may be granted protection, ranging from literary, dramatic, musical, artistic, cinematographic, to sound recordings. Section 14 lists the numerous exceptions that are granted to the holders of copyright rights, including the rights of reproduction, adaptation, and making their work public. Section 57 provides the moral rights that allow the authors to sustain the integrity and proper attribution of their work. All these provisions make copyright a legal right in the Indian jurisdiction, whereby the creators can direct and preserve their original expressions, both economically and ethically.

The court’s interpretation has added more value to the existing statutory framework. The Supreme Court adopted the "Modicum of Creativity" doctrine in Eastern Book Company v. DB Modak case. The court ruled that for a derivative work to be eligible for copyright, it must be more than a simple copy of the original work. The work must have been the result of the author's independent skill, labor, and capital. In the case of Raja Pocket Books V/s. Radha Pocket Books (1997) The defendant wrote a book called "NAGESH," in which the protagonist looked a lot like plaintiff’s character "NAGRAJ," and the characters' ideas and meanings, colors, attire, and unique skills were all the same. The character "NAGRAJ" was the subject of this case due to infringement. Since the two characters' origins and ideas are the same, the Honorable Court decided in favor of the plaintiff. The court opined that there was a chance that the two characters would be confused because the audience was younger, so the defendant was held liable for copyright infringement.

The Supreme Court of India pronounced a significant judgment with respect to copyright law in RG Anand v. Delux Films. The case began with Mohan Sehgal's 1954 lawsuit alleging copyright infringement by the film New Delhi. The plaintiff argued that it was based on the plot of a play he wrote and produced called Hum Hindustani. This case helped to explain the difference between the idea and its expression. The Supreme Court determined that although one can make use of any idea, there is a copyright on the particular way in which the ideas are expressed. The plaintiff in this case alleged that the defendant had copied the theme and the story of his play in the film. The Court upheld that the two works had the same theme; however, there was no substantial copying of the expression, characters, and dialogue. Above all, it made clear that ideas alone cannot be protected by copyright.

The Indian copyright law has a balance with the existence of a statutory framework and timely judicial interpretations. In spite of the fact that India protects original expression and moral rights, it also recognizes that creativity levels increase when the ideas are shared. The landmark cases have shed light on the aspect of the inspiration versus infringement debate, which justifies the role of originality, ethics, and the application of the intention of author in a derivative piece like a fanfiction.

The United States, conversely, has a precedent-based model. The copyright system of the United States, as provided by the Copyright Act of 1976, safeguards original works of authorship available in a tangible medium, which means originality only necessitates a minimal amount of creativity. Although the Visual Artists Rights Act (1990) offers limited rights in the moral aspect, the U.S. system largely supports the economic rights, reproduction, distribution, and performance. The characteristic of the U.S. system is a flexible doctrine of fair use that is advantageous in the process of teaching, criticizing, commenting, and modifying works. With its origins in the common law tradition, the U.S. copyright regime is strongly influenced by judicial precedent, and three cases in particular can help understand the manner in which courts have distinguished between acceptable inspiration and infringement.

In the case of Nichols v. Universal Pictures Corporation, Anne Nichols had claimed that the movie The Cohens and the Kellys by Universal was based on copying her play Abie's Irish Rose, which also involves interfaith marriage and cultural conflict. Judge Learned Hand coined the abstraction test and ruled that no general ideas or themes were covered by the copyright, but only the particular expression. The case still stands at the basis of the conceptualization of ideas and expression. The case of Suntrust Bank v. Houghton Mifflin Co. is a case wherein The Wind Done Gone, a novel by Alice Randall, is a retelling of Gone with the Wind from the perspective of enslaved characters. The estate of Margaret Mitchell sued for infringement. The Eleventh Circuit ruled that the work was a fair use of transformation, as it was a critical commentary on the original, despite it being commercial. By contrast, in the case of Castle Rock Entertainment v. Carol Publishing Group (1998, Second Circuit) a book containing trivia about Seinfeld was sued on copyright grounds. The court decided the case in favor of the plaintiff, stating that the book was not transformative but was simply capitalizing on the success of the show without bringing any new meaning to it. This ruling emphasizes the fact that the doctrine of fair use fails to cover derivative works, the objective of which is not meant to be transformative, although fans might be interested in it.

All three cases together demonstrate the U.S. approach towards the limits of copyright. They present a powerful comparative outlook of the legal position of fanfiction in the U.S. When sequentially read, they offer a subtle comparative overview of the legal status of fanfiction in the U.S. and illustrate the possibilities and limitations under which the fanfiction creators could operate. In India and the U.S., the copyright systems are statutory and precedent-based; the legal vacuum when it comes to fanfiction is handled differently in both jurisdictions. Altogether, copyright systems show how much creative reinterpretation is tolerated or restricted. The following table offers a concise comparison of Indian and U.S. copyright laws:

(TABLE ATTACHED UNDER)

The above table provides a comparative summary of Indian and U.S. copyright laws, explaining the differences in the application of the laws that could impact the potential treatment of fanfiction. As regulated by the Copyright Act of 1957, India provides more statutory protection and moral rights and has fewer aspects of fair dealing and judicial discretion concerning transformative use. In comparison, the American copyright law of 1976 is based on judicial precedents that acknowledge the economic rights but offer more protection to the transformative works, which have been enshrined in the fair use doctrine provision. Both jurisdictions also safeguard derivative work, but in the U.S., there is more freedom to engage in non-commercial, transformative works, whereas in India, the moral and legal provisions surrounding the issue are more stringent, which makes the reinterpretation of the work more justifiable.

FANFICTION AS COPYRIGHT INFRINGEMENT

Fanfiction creation and sharing amounts to possible copyright infringement in the United States and India. Two key arguments supporting this claim are:

1. Derivative Works

Fanfiction can be a violation of copyright when it duplicates important elements of a work that has been given protection, due to the use of some of the characters or plotline without the correct authorization. Under U.S law, works that are "substantially similar" violate the reproduction right while upholding the author's exclusive authority over reproduction and derivative use. Generally speaking, copyright law gives writers the special status of being able to create derivative works, and fanfiction meets this by definition. This is especially apparent in cases where fanfiction is commercialized, as it serves the fundamental expressive aspects of the original work without permission, hence meeting the threshold of prima facie infringement.

1. Doctrine of Fair Use

Although there is a strong defense that fanfiction falls within fair dealing, its characteristics rarely allow it to fall under Section 52. Fanfiction, usually distributed publicly, in an attempt to popularize the original works, is not subject to the narrow exception of private use, criticism, or review in Section 52. Similarly, U.S. courts apply the four-factor test while deciding such types of cases. There are four elements to this test, which are as follows:

(1) purpose and character of the use,

(2) nature of the copyrighted work,

(3) the amount and substantiality of the content used, and

(4) market impact.

As online digital platforms like Wattpad and Patreon have been created, fanfiction has shifted away from a niche creative activity to a marketing form of literature. Fanfiction is hardly transformative in the legal meaning of the word, as it tends to mimic major elements, overdepends on the original works, and can destroy the market for future official adaptations. Consequently, fanfictions remain highly susceptible to claims of copyright infringement.

FANFICTION AS CREATIVE EXPRESSION

Courts have come to acknowledge that transformative works that are still grounded on the original material could be regarded as having fair use as long as they creatively reword the original work. This claim is supported by two key arguments:

1. Non-Commercial Intent

Fanfiction is mainly non-commercial in nature, and the majority of its writers freely distribute such works on websites like FanFiction.net without trying to make a profit out of them. It is not created to benefit a person or a group; rather, it is a form of individual entertainment. Although exceptions do occur, most notably Fifty Shades of Grey, which started as a Twilight fanfiction before becoming a commercially successful series, there are very few. The key point in the fanfiction concept is that it is a hobby, and it, therefore, supports the classification of fair use, which promotes transformative, non-commercial use. OTW also advocates the rights of fans and argues that most fanfictions should be considered as non-commercial and transformative use.

1. Doctrine of Fair Use

The United States recognizes the possibility of commercial works being considered a fair use in case they are transformative enough. Fanfiction is a legally weak area since the right to the derivative works is covered under the exclusive rights of the author. This risk can be understood through academic reproduction as described in the case of University of Cambridge v. B.D. Bhandari. The defendant reproduced and distributed copies of English language teaching content of Cambridge on a large scale, and the Delhi High Court ruled that the scope of fair dealing under Section 52 of the Copyright Act was exceeded by the defendant since the use was not fair. The Court underlined that a work cannot be directly reproduced as it is to correspond to the requirements of a derivative work. This ruling highlights that systematic and profit-oriented copying of source material is infringement, which makes it evident that the fanfiction creators must also create in a manner that is non-commercial in nature. As a result, the Indian copyright system needs to be approached with a balanced execution, and the U.S. legislation already offers the greatest fair use protection of fanfiction.

It is to be noted that several factors influence whether fanfiction is legal or not in both jurisdictions. It is an original piece in its own right, even if there is no separate legal status.

AUTHOR'S PERSPECTIVE

Personally, I believe that fanfiction must be created only when the original writer has no objection to the same and has given their active consent for such creations. The emotional and artistic limits of the creator are an issue, and writers of fanfiction need to acknowledge them. It is not only about the permission of the law, it is about respecting the spirit of the original work. Fanfic writers need to be careful not to re-interpret the source material in any manner that leads to the depreciation of the meaning that the author intends. They should also have the responsibility not to impose interpretations that the author did not mean to express. Being a fan means being responsible, and as part of that responsibility should respect the author and admire his or her work through fanfictions.

CONCLUSION

Fanfictions raise legal questions concerning reproduction and use of derivative works without authorization, despite their ability to provide their fans an opportunity to engage with original works by way of transformative and non-commercial storytelling. The balanced approach would mandate the establishment of mutual understanding between the copyright holders and the fanfic creators, licensing frameworks, and transparent communication. These measures will be able to reconcile the participatory culture along with intellectual property rights, while creating a sustainable and legally confirming fanfiction culture.

The article suggests that original authors should start having open dialogues regarding the purpose of their creations and their underlying messages. It is possible to get a clear picture of the way they want their creations to be perceived by sharing their views publicly, whether it is in interviews or blog posts. Such openness would make up for reference to the fans who desire to create fanfiction, allowing them to ensure they do not misinterpret. When authors express their vision of creativity, it will create a culture of respect and a fan culture in good faith, where reinterpretation is intentional.

The article also suggests the introduction of a Creator Declaration Registry, a voluntary, publicly available site where original authors can publicly give their consent regarding the creation of fanfiction. Such a registry would allow authors to indicate consent and interact with the fan communities, reinforcing a sense of respect among them. From their end, fan creators would have a source of credible reference that would allow them to focus their creative works without incurring the cost of getting personal permission, making sure that the reinterpretation is respectful and is in conformity with the intention of the author.

FOOTNOTES.

1. IMAGE CREDIT-AI GENERATED

2. ‘Fan Fiction’ (Cambridge Dictionary) https://dictionary.cambridge.org/dictionary/english/fan-fiction accessed 4 October 2025

3. Paramount Pictures Corp. v Axanar Productions, Inc. No 2:15-cv-09938-RGK-E (CD Cal, 3 January 2017) 4. El-Hasan M, ‘Mattel Sues Author of Early Masters of the Universe Comic Books over Franchise’ (Daily News, 28 August 2017) https://www.dailynews.com/2013/06/26/mattel-sues-author-of-early-masters-of-the-universe-comic-books-over-franchise/?noamp=mobile accessed 9 October 2025 5. Eastern Book Company v DB Modak (2008) 1 SCC 1, 10 (SC) 6. Raja Pocket Books v Radha Pocket Books (1997) 40 DRJ 791, 795 (Del HC) 7. Hutukka P LLD and The Author(s), “Copyright Law in the European Union, the United States and China” (2023) 54 IIC 1044 <https://doi.org/10.1007/s40319-023-01357-0> 8. Nichols v Universal Pictures Corporation 45 F 2d 119, 121 (2d Cir 1930) 9. Suntrust Bank v Houghton Mifflin Co 268 F3d 1257, 1265 (11th Cir 2001) 10. Castle Rock Entertainment v Carol Publishing Group 150 F3d 132, 139 (2d Cir 1998) 11. 17 U.S.C. § 106. 12. Lipton JD, ‘Copyright and the Commercialization of Fanfiction’ (2014) 52 Houston Law Review 425-466, 441-443 https://houstonlawreview.org/article/3989-copyright-and-the-commercialization-of-fanfic 13. THE COPYRIGHT ACT, 1957 14. 17 U.S.C. § 107(2) 15. Organization for Transformative Works” <https://www.transformativeworks.org/> 16. University of Cambridge v BD Bhandari AIR 1995 Del 126, 130 (Del HC)