Legality of fan fiction and fan scripts

On an EMAIL list I’m on (fans of the Evil Dead movies), one person proposed that the group write an Evil Dead 4 script, for fun. Several people think this is illegal, and that in general fan fiction is illegal.

I doubt that any laws are broken unless they try to make money from it somehow without legally obtaining rights to the characters or misrepresent it as an official script. Just passing it around to members of the list should pose no legal problems, I would think.

But I’m no legal expert. Is there any possible legal problem that could arise from fans making an “Evil Dead 4” script, just for fun? With deception and no money changing hands?

Ooops, that last sentence should read “With NO deception and no money changing hands”.

But you probably knew that.

Sorry. It pretty much is illegal regardless of any commercial value. The only legal protection for fan fiction is if you argue you are parodying the original work. But on the positive side, in the real world it is generally unheard of for anyone to actually be prosecuted for making or distributing non-profit fan fiction.

At what point does it become illegal?

If I sit in the privacy of my own home, and write a story starring Indiana Jones, ET, Mickey Mouse, and it just sits on my hard drive, have I broken a law?

Does it become illegal once I give it to my next-door neighbor?

How about once I put it on a web site, even with the disclaimer that it is not “official”?

Here’s my take, given that I write fanfic for several shows, and am in charge of a “virtual season” for another. Fanfic is illegal. Even with the disclaimers that we post at the top all the time (These characters belong to…, I’m not making any money, etc.)
However, most studios look the other way when it comes to fanfic. They don’t want to crack down, since the fiction often gets people more involved in the show. The only time they will do something is if someone shoves it in their faces. (Which has happened at several conventions…) Given that fanfic has been around since the original Star Trek (and possibly earlier), I’d say the studios are going to leave it alone.

Though it must be pointed out that any fanfic carries with it several problems. Most studios kind of look the otherway, but they are leery of it. An example is one of the best Babylon-5 scripts, Passing through Gestheneme(sp?) It was supposed to have been a 2nd season script, but someone posted the basic idea to a newgroup, JMS had to cancel it, until the original poster had gone through the trouble of legally handing over all rights to the idea at his own expense. Once an idea is made public, the creators of the show won’t touch it because of the royalties/copywrite issues. It is far to easy for a writer of the fanfic to claim that his/her idea was ‘stolen’ and then sue.

>>Being Chaotic Evil means never having to say your sorry…unless the other guy is bigger than you.<<

—The dragon observes

Revtim, I have to admit I don’t know the answer to your first question. As far as I can tell, from a theoretical legal standpoint, the mere existence of fan fiction is enough to violate a copyright. But the example you gave of writing one and never showing it to anyone else is so minute a violation, that I can’t conceive of it being illegal. There must be some legal principle that protects solitary work like this, but I can’t tell you what it is.

In the latter two cases, however, there is clearly a violation. Any form of distribution to a second party is illegal. However, as Falcon and I wrote, in the real world, there is virtually no chance that you will ever be prosecuted. Passing around non-profit fan fiction is the equivalent of driving 66 mph on the expressway.

I find it utterly ridiculous that I can just type words into a document, that no one else will see, and that violates a law somewhere.

It’s idiotic for it to be illegal if I’m passing it around to friends without making money. But it’s beyond stupidity if I’m not even doing that.

No, I’m not concerned about arrest, even if I had some intention of writing some fan fiction (I don’t, not even for the mailing list I previously mentioned). As an amateur writer I appreciate writers getting protection for their works, but isn’t this a bit extreme?

Fanfiction is usually illegal.

TSR, Whiteworld, FASA, all have guidelines on their websites for using copyrighted material in your own stories. Within limits, they don’t give a damn what you write and do with their work, so long as you aren’t making money off it. If you’re making money off it, it better be because you’re publishing it through them.

Some people encourage it, some will hunt you down and take every last penny you have. If you’re worried about getting in trouble, ask first. Otherwise, you’re taking your chances with being caught.

Just had another thought on this.

Tim, the issue with fanfic isn’t really whether it’s legal or not. It’s how much the studios care. I know several people personally that make (almost) their whole income off of selling fanfic zines at fan conventions. Now, is this illegal? Hell yes. Do the studios know about it? Yes again. Have they tried to stop it? Nope - not even Fox, which is well known in the fan community for shutting down damn near anything unofficial for the X-Files.

However, I do have to disagree with Suzeanne’s advice. I wouldn’t ask the owner of whoever (or whatever) you were using - that only forces the studios to make a decision. Their attitude tends to be: “We’re not doing to prosecute anyone unless we get pushed.” Aside from Narile’s story, I’ve never heard of anyone getting into ANY legal trouble with fanfic.

Well, the issue with me is the legality of it. Not that I’m afraid of prosecution, even if I planned on writing fanfic (which I don’t). It just galls me that there is a law that prevents me from writing something, even if I don’t plan on trying to make money off it.

I should be able to write any damn thing I want, as long as I’m not making money from it.

Here’s a good site on Internet publications and copyright infringement:

Regarding fanfics:

They also mention the “parody” exception.

Revtim, there is the question of who’s backyard are you playing in? Even if you don’t plan on making money on it, you are still using someone elses creations. Often, if they don’t say no, they are considered giving tacit approval. Look at Trademark requirements for example, I’ll be the first to agree that many companies go overboard in protection of their trademarks (Just try starting a company that uses the ‘r us’ moniker, for instance…Toys ‘R’ Us is famous for their lack of humor there.) But if they don’t protect them, the implicit understanding is that they loose them.

Now, why should this be important? Well, for one thing, they have no control over what the fan writes. An example of this is talked about in the foreword to Man-Kzin Wars, where Larry Niven explains why he doesn’t allow fanfic anymore. Basically, someone wrote porn using his creations, so no no-one can use them without his permission, profit or not…Its his creation, he gets to decide that.

I’ll try to give an example, you are a programmer, and you come up with a neat little program that will compute various energy state equasions, quickly and without much difficulty. You put it on your internet site as an example of what you can do, and the goverment takes your program and starts to use it to help build more powerfull nukes. By your reasoning, since the Goverment is nonprofit, they can use your creation as they see fit, even if you yourself were antinuke. You have no control over your creation, and that is why Fanfic is illegal, because the owner of the creation should always have control over their creations.

>>Being Chaotic Evil means never having to say your sorry…unless the other guy is bigger than you.<<

—The dragon observes

the operative word here being “virtually”.

The local newspaper did an investigative piece about the traffic police, and found that last year there actually was a ticket given for driving one mile over the speed limit. The paper interviewed the policeman about it, who answered along the lines of “I sure as heck DID give him that ticket. Idiot was in a four-by-four doing 66 mph in 18 inches of snow and thinks he owns the road!”

The moral: Don’t be an idiot. Don’t go 66 in the snow, and don’t write fanfic that will get the owners upset.

Revtim, I’m glad it is about the law for you. Then you’ll appreciate the fact that it’s illegal.

Can you write it? Sure, you can write anything you want.

Can you give it to your next door neighbor or put it on a fan-fic site? No, because it’s not yours to give.

You didn’t create the characters, the settings and the other things that make the concept unique. That’s what copyright is all about. The author (or publisher, or Michael Jackson, or whoever has the rights) owns the copyright, and it’s theirs to do with as they please.

At the risk of causing problems…

Yes, you can put it on a fanfic site. Will the owners care? Probably not. Narile did make a good point though - owners of written fic tend to be a little more worried than the owners/producers of movies and TV shows. And plenty of the fic that’s written annoys the hell out of the owners - hell, the whole genre of slash fanfic annoys them.

My point? Yes, fanfic is illegal. However, no studio has yet prosecuted anyone for it. Until that happens, I say write to your heart’s content.

Alphagene, thanks for the URL, that looks like a very useful site. What could be clearer, though, is if his statement on fan fic includes both commercial and non-commercial use. I’ll have to assume he means both, but maybe I’ll email him for clarification.

Well, I think this is turning into a debate (I’m not so sure it would be a “Great Debate”). I know I’ve belabored this point, but IMHO, one should be able to write any friggin thing as long as it’s not used for commercial purposes. I should be able to take Niven’s Man-Kzin and Ringworld characters and write gay snuff bestiality porn with them, if the mood strikes me.

If I’m not selling it, it’s just a pervert getting bizarre jollies on his keyboard (a long Internet tradition). What harm is done to Niven? His feelings getting hurt if he somehow reads it? Who cares? Ok, that’s a bit harsh, I guess I do care, but I don’t think feelings being hurt warrants legislation. Will he lose money or be defamed? I don’t see how that can reasonably follow.

It’s a balance between the rights of the author vs the rights of the rest of the world. When I’m king, I’ll make the dividing line be at the point of commercial use. Until then, I guess I’ll have to accept that me writing the following is breaking a law:

Hee! Tim, I bet I could actually find this story written somewhere on the web. FWIW, I agree with you. I tend to be realistic about fanfic - if they ain’t gonna come after me for it, who cares. < shrug >

RevTim, the point is, that it does hurt them. It paints them in a bad light if you use their characters in such a manner. Because by not going after you, they are implying that they approve. I don’t know about you, but I still believe that character counts for something. If I call someone a child molester for instance, if they don’t defend themselves, they will be convicted in the court of public opinion, wither or not they are. In the case of my calling someone something they are not is libel, but the same basic idea holds true with regards to a writer defending their creation.

I think I should ask you, have you ever created something of your own, worked on with your own sweat and blood?

>>Being Chaotic Evil means never having to say your sorry…unless the other guy is bigger than you.<<

—The dragon observes

The point of non-commercial fan fiction being illegal is that it is competition against the legitimate product. In that light, you could argue that freely distributed fan fiction is a worse copyright violation than commercial material. Let’s say I decided to start producing my own Batman comic book and distribute it for free to anyone who wants a copy. Obviously, my book will represent a potential loss of customers buying the DC version.

It is also true that while “virtually” no one is prosecuted for fan fiction, that does not mean fan fiction goes unnoticed by the copyright holders. Both Disney and Time Warner, to give two examples, have told website administrators to remove non commercial fan fiction that used their copyrighted characters. As far as I know, everyone contacted has complied with the request. But I wouldn’t rule out these corporations’ willingness to pursue further legal action in the face of non-compliance.