Fanfiction is hardly a new phenomenon, but that doesn’t always mean it was safe to write. For a time, in certain fandoms, writing fanfiction could get you a letter from a lawyer. Now, however, the internet has given fandom enough leverage to allow the dubiously legal practice of writing about other people’s characters continues to flourish.
Fanfiction, the act of writing original stories based on someone else’s creative work, exists in a sketchy legal space. While derivative and transformative works are technically protected under fair use, many authors do not believe fanfiction falls in that category. Authors that still dislike or disallow fanfiction cite an experience that author Marion Zimmer Bradley had in 1992. Bradley not only liked but encouraged fanfiction in the initial stages of her fandom, but as the story goes, she realized that an upcoming novel of hers would touch on themes that were in a fanfiction she had read, and she reached out to the author to attempt to negotiate a deal so as to avoid a lawsuit. Although not all parties can agree on how much of Bradley’s novel had been written or exactly what the terms of the agreement were with this fanfic author, Bradley said that she decided to scrap the novel rather than risk a lawsuit. This story loomed large in the memories of authors like Anne McCaffrey and George R. R. Martin, who cited it as an example of what can happen if you don’t protect your copyright. While Martin allows fanfiction as long as you don’t send it to him, McCaffrey banned all fanfiction for her series Dragonriders of Pern from 1992 until 2004.
Some authors’ attitudes would eventually change or soften, but not before the law got involved. Although the Copyright Act of 1976 specifically includes parody in its non-exhaustive list of the kinds of works that count as fair use, even literary works were challenged by lawyers seeking to protect their copyright. In 2001, the estate of Margaret Mitchell still sued author Alice Randall’s publisher Houghton Mifflin over the book The Wind Done Gone, which tells the story of Gone With The Wind through the perspective of the slaves. The case was settled in 2002, with Randall’s book declared fair use. The early 2000s marked a transitionary period for people making derivative works, although they were often still scorned by the creators whose works they were playing with.
If you were an Anne Rice fan in the early 2000s, you had a hard time finding fanfiction. Rice made her personal dislike of fanfiction clear on her mailing list as early as 1995, but as the internet marched on and fans began to gather in other parts of the web, that stance grew more aggressive. In the year 2000, Rice posted to her website a message banning all fanfic. “I do not allow fanfiction. The characters are copyrighted. It upsets me terribly to even think about fan fiction with my characters,” She wrote. “I advise my readers to write your own original stories with your own characters. It is absolutely essential that you respect my wishes.” In this same year, the category for works based on Anne Rice’s books was removed wholesale from fanfiction.net. If you search “Anne Rice” on the website today, a few fics based on her work have slipped through the cracks, though some of them have already been removed as the site still does not allow anything based on her work.
Individual fans themselves claimed that they were targeted by Rice’s lawyers. “The attacks consisted of, amongst other things, e-mailed threats regarding not only the writing of fanfiction but any writing that any fanfic author attempted to engage in (regardless of who owned the copyright), attacks on businesses that the fanfic authors owned and weeks of harassing personal letters sent to fanfic author’s e-mail addresses and guestbooks,” one fan wrote on their fanfiction website. “The threat of personal harassment is very real. Anne Rice does not want you writing fanfiction and she has the money to make you stop.”
Other fandoms faced similar threats from creators. Fox sent cease & desist letters to people who made X-Files fansites and a fanfic mailing list in 1996. Even the usually fanfic tolerant J.K. Rowling had her lawyers send a cease & desist letter to a website that hosted sexually explicit Harry Potter fanfic in 2003. Author Mercedes Lackey required fanfiction authors to both sign a release and also forbid them from posting their work anywhere online. These measures seem extreme now, but when the internet was still relatively untamed, both fandom and creators weren’t sure how handle distribution of fanfic on the medium.
Even in fandoms with very active fanfiction communities, it was common practice to place a disclaimer on every chapter of your writing saying that you did not own the characters. As the decade moved on, though, things changed. Part of it had to do with the fact writers in fandom, like Cassandra Clare, were getting book deals, and then fandoms of their own. There was a new generation of authors who were leveraging their work in writing careers, and in some cases having their fanfiction work turned into published works of fiction.
Famously, 50 Shades Of Grey began as Twilight fanfiction. It began as an alternate universe story “Master of the Universe,” where Edward was a billionaire into BDSM rather than a vampire, and Bella was pretty much the same character. James changed these characters names to Christian Grey and Ana Steele before she self published these works as original fiction, but the work itself is largely unchanged from what she had published as fanfiction. Although Christian Grey is supposedly an original character, he resembles Edward Cullen in almost every degree, from the creepy stalking to his prodigious talent at the piano. She was even making money off of these characters.
If Stephenie Meyer, author of Twilight, really wanted to, she could have sued James, but she didn’t. Her longtime response has been that 50 Shades is its own thing, separate from her work. In 2012, when asked about 50 Shades by MTV News, she said, “I’ve heard about it; I haven’t really gotten into it that much. Good on her—she’s doing well. That’s great!” It makes sense. Part of what made Twilight a phenomenon was its huge and vocal internet fandom, many members of which were writing fanfiction based on her characters and her work. If you visit fanfiction website Archive of Our Own, there are over 10,000 fics in the Twilight category. While Rice was more insulated from her fandom in the early 2000s, and did not necessarily rely on superfans writing fanfiction for her success, the Twilight fandom was what made it popular. Even if she had a case against James, suing her would put her own fandom in a precarious position.
These days, fandoms are visible enough that sending them cease and desist letters to enforce your copyright can have a negative impact on your work, and many creators are opting just to play along. The practice itself has not been declared strictly legal, and is still at the whims of individual creators allowing it. McCaffery, for example, has started to allow Pern fanfiction before her death, though her very specific set of rules of how it should be distributed are still in effect. Still, as the line between creator and fan blurs because of the internet, it’s harder and harder to control whether or not people will write fanfiction. At this point, it’s safe to say that if you write something people love enough, there’s going to be fanfiction about it.
Correction, 5:23pm—Clarified a sentence in this post to properly reflect that Anne McCaffrey has died.