Is it legally correct to write fanfiction?

Utopian reflections

In conversations with people from the fan fiction environment, I have unfortunately noticed again and again that there is a great deal of ignorance about fundamental legal questions on the subject. Dangerous. Because publishing texts on the Internet is generally a legal minefield. And fan fiction write a lot more. Hence my series of legal things that you need to know as a fanfiction writer.

[The author of this post is not a lawyer and is therefore not allowed to give legal advice in Germany. The following contents are for information purposes, but are not specific instructions]

I have to start with sad news. For those who don't know: Fanfiction is basically illegal. Yes, you heard right. You shouldn't actually write your stories about Harry Potter, Lord of the Rings, Star Wars, Batman and Naruto. Why it is like that? I'll start one by one ...

The copyright

In Germany, works of art are fundamentally protected by “copyright”. The copyright lies (who would have thought that) with the author, i.e. the author of a book, the painter of a picture, the composer of a piece of music, etc. The author has the right to determine what happens to his work and, above all, whether and where it is may be published. The legislature has set it up so that artists can also earn a little money with their work. Because in order for artists to give their consent to publication, book publishers, radio stations or art museums have to shell out money to them.

But when is something actually considered a “work” and is it protected by copyright? According to §2 of the Copyright Act: "Works in the sense of this law are only personal spiritual creations."In the meantime, something is considered a “work” if it meets the following criteria: 1. It was created by a person. 2. It has to be noticeable in some way. 3. It must have a certain content and stimulate its viewers to think or empathize. 4. It must have a "personal character", that is, it must somehow be an expression of your personal creativity.

Do you think the criteria are rather vague? Are you too. Courts are always busy for a long time to decide in specific individual cases when a work of art is still “small coin” (still just protected by copyright) or below the “height of creation”.

Fanfiction and Copyright

What does that mean in concrete terms for fan fiction? When we're writing a story about Luke Skywalker and Han Solo, we're not using any of the Star Wars footage. In this respect, we don't publish a work of art without asking the author.

Unfortunately we do. Because of works not only the exact form is protected (e.g. the wording of a novel or the sequence of scenes in a film) but also plot ideas, courses of action, names, worlds and characters. In 2013, for example, the Federal Court of Justice ruled that the figure of Pippi Lanstrumpf was fundamentally protected by copyright and that the figure could not be used without the consent of Astrid Lindgren's family.

And for wise guys: There's no point in writing a story about “Harald Potti”, “Look Skytalker” or “Aragun”. If the figures are based on well-known models, even small changes do not help.

Fanfiction and Commerce

Stop! Many of you will say now. So the rules of copyright were originally created so that artists would be paid fairly for their work. Nobody should be able to make money with their works without their participation. But I don't want to make any money with my fan fiction. I just want to publish it on the internet so that my friends and some other Star Wars or Harry Potter fans can read it.

That's right. Unfortunately, it doesn't matter. For copyright law, a publication is a publication. It doesn't matter whether you just post your story in a forum thread or print it in the newspaper. The author of a "work" must always agree when you publish his "works". And that just means: If his characters appear in your story, then you should actually ask him before you publish them.

And before someone asks: It doesn't help to post a disclaimer in the profile or in front of the story itself, in which you name the author of the template. The author is the author, whether you name him or not. Even if it is mandatory to tick it off on portals such as Myfanfiction.de before the story can be published: A disclaimer does not change the fact that the author of the template of your fanfiction actually has to agree in order for it to be published. On the contrary, a disclaimer in court could be seen as an admission of guilt.

Then why is there fan fiction at all?

So Joanne K. Rowling has the sole rights to Harry Potter. You could sue any author of a Harry Potter fanfiction, or (which is much more practicable and therefore even worse) also give a warning. Then why is there still fan fiction at all? Very easily. Just because Joanne K. Rowling is legally allowed to do so, doesn't mean that she'll do it. Most writers don't take legal action against fanfiction for one of the following reasons.

  1. You don’t want it. They like fanfiction and fanart and are flattered that others want to use their characters, plots and worlds for their own work. (Joanne K. Rowling belongs to this category. She once stated in an interview that she is very fond of fanfiction.)
  2. You don't know them. They either do not even know that something like fan fiction exists or they have no overview of how much fan fiction actually exists about their story. And they don't care either.
  3. They don't think it's a good idea. When writers take action against fanfiction writers, there is bad press. If a writer had a fanfiction blocked, the whole fandom would turn on the wheel. The author would make himself unpopular with precisely those on whose support he depends: with his own fans.

But there are also the other candidates. Game of Thrones writer G. R. R. Martin is a well-known enemy of fanfiction. He thinks it is essential to defend the copyrights of his characters and that no one except himself can use his characters. In a blog article he warns that fanfiction writers lose money and will no longer be able to make a living in the long run. Martin's own net worth is estimated at $ 50 million.

The legal risk

In summary: Anyone who writes a fan fiction infringes the copyright of the author of the template. (With a few exceptions, which I will discuss in a later post) The risk of actually suffering legal consequences is there, but not very great.

Most fanfiction writers, however, have no knowledge of this. It is very serious. Because in an emergency it is not the fanfiction platform that is liable but the author himself. According to German Internet law (Telemedia Act §10), the operator of a platform, forum or social network is generally not liable for illegal content that its users have published. Only if he has been made aware of the legal infringement and has not rectified it is it his fault. If not, the author himself is liable for all insults, hate speech, youth protection violations, trademark and competition law violations, personality violations and even copyright violations. (Yes. All of these laws can actually be broken just by posting a text in a forum).

The fan fiction portals clearly refer to this in their terms and conditions (of course, nobody reads them)

Fanfiktion.de terms and conditions

5. AUTHORS / POSTER RESPONSIBILITIES

All content provided by users on FanFiktion is the sole and complete responsibility of the user who posted it on the site. [...]

It goes on…

Those were the most important basics of copyright law. In the next few weeks I will explain a few more topics: What exceptions to copyright are there? What other laws could be relevant for fanfiction? (Protection of minors, competition law, sedition, etc.) What kind of rights do I have in my own story and do I violate the copyrights of other fan fiction authors if I let their stories inspire me? What do I have to consider when writing fanfictions about living people (for example Youtubers, footballers or musicians)? What do I have to consider if I want to add pictures to my fanfiction? (I use it to open a giant barrel)

Otherwise, feel free to ask general questions in the comments. I have a bit of experience. As a journalist you have to deal with legal questions about texts and images all the time. The brand's questions "It's like this and that with my fanfiction, do you think it's legally in order?" I am unfortunately not allowed to answer. In Germany, individual legal advice may only be given by a lawyer.

EDIT: Unfortunately I had to deactivate the comments. Just below this article there is such a massive deluge of spam comments with links to porn and viagas sites that for some reason my anti-spam measures are not getting a grip. Questions, feedback etc. therefore please from now on on Facebook, Twitter or by e-mail.

About ThomasMorus1478

Online editor, journalist and blogger with many interests. Studied historian and philosopher. Internet and social media freak. Crazy about literature and dependent on YouTube. Writes both journalism and fiction.