A text by Camille Labadie, Ph.D. in law from UQAM
Fan fiction can be defined as a form of literary creation in which the fans of a novel or other media content use elements from that source material as the starting point for new stories. There are many motivating factors for creating fan fiction, such as wanting to extend the original work, explore new aspects of it, further develop its characters or their relationships, or propose alternative endings.
But is fan fiction actually “legal” under copyright law? After all, by definition, it involves appropriating and reinventing elements from an existing work, regardless of how close the resemblance may be to the original. The answer isn’t clear and Canadian courts haven’t yet been called on to make a ruling about legality.
Delicate balance to protect literary works
In principle, the Copyright Act gives authors the exclusive right to reproduce or convert their works and to authorize other people to carry out those acts. Authors also have moral rights under copyright legislation, enabling them to protect the integrity of their works. Those rights apply to the entire work as well as “any substantial part thereof.” However, that protection is far from being absolute.
Copyright doesn’t protect the ideas behind the creative content, only the way those ideas are expressed. Even though the narratives in Tristan and Iseult, Romeo and Juliette and West Side Story are similar, they’re not considered reproductions because the “idea” of an impossible, tragic love story is not subject to copyright and each of those works expresses that idea in a sufficiently different way.
Moreover, only original creations are protected by copyright. If some of the elements in the source material are common, conventional or inspired by a pool of knowledge that is shared by authors working in a specific genre, they would not be eligible for protection. In addition, it’s always possible to use a “non-substantial” part of the work without asking for the author’s permission. The Act doesn’t provide a definition of a “substantial part” of a work. Based on case law in Canada, this point must be evaluated quantitatively and qualitatively on an individual basis.
A good example of all those obstacles is the protection of fictitious characters that exist only as literary descriptions.[1] The Federal Court, the Ontario Superior Court and the Quebec Superior Court have indicated that characters may be protected when they’re included within a copyrighted work. But they still have to figure prominently in the work, be sufficiently developed and original, and be easily identifiable and recognizable based on the case-by-case assessment done by the court. The same applies to the situations those characters find themselves in: they must be distinctive and be described in a complete, detailed way.
When it comes to moral rights in Canada and infringing the original work’s integrity — especially if the fan fiction veers into the erotic — evidence must show that the author’s honour or reputation has objectively been damaged.
And lastly, the Supreme Court of Canada has made it clear that a balance must be maintained between the rights of creators and users. For that reason, the Copyright Act allows part of a copyrighted work to be used without permission in certain situations. These exceptions are referred to as “fair dealing” in the Canadian legislation (“fair use” in the U.S.). Among the exceptions would be reproductions for the purpose of parody or satire.[2] To decide whether the use qualifies as fair dealing, courts examine the situations case by case, looking at various factors such as the character of the use, the quality and quantity of parts reproduced as well as the seriousness of the possible infringement in terms of the author’s income-generating activities.
Basically, a case-by-case analysis is necessary to determine how copyright rules apply to individual works of fan fiction. Under Canada’s current legislation and case law, there’s no general rule for determining in advance whether those creations are legal.
What do authors think about fan fiction?
After first gaining popularity in newspapers and specialized online forums, fan fiction is now widespread and has even generated works as famous as the ones that served as inspiration. For instance, the Fifty Shades of Grey trilogy was initially intended as an erotic tribute to the Twilight series. Some authors disapprove of or are openly hostile to fan fiction because they consider it an infringement of their work, fear that they will lose control or see it limiting how they can develop their own works. The vast majority of authors, however, are quite accepting of those creations.
Besides, from a practical point of view, it’s not very realistic to take legal action against every fan writer when there are so many out there. Other than formal takedown notices sent to websites, legal proceedings would likely not be very successful. Not only are there are obstacles in identifying the writers and copyrighted elements but fan fiction usually has little or no impact on the sale and use of the source material or on the author’s reputation. To date, no lawsuits have been filed in Canada. Cases are rare elsewhere in the world and tend to focus on the sale of derivative or clearly plagiarized works or obscene or racist fan fiction.[3]
And from a strategic point of view, any author hostility towards fan fiction tends to be perceived poorly by fan communities, especially when the most devoted and loyal fans are often the ones writing the fan fiction! While some authors actually encourage those works, many others treat them cautiously, keeping their distance … so they won’t be accused of taking inspiration from them!
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Camille Labadie holds a doctorate in law from UQAM, where she is a lecturer.
Her research focuses on intellectual property and the relationship between law and cultural heritage.
[1] This situation is different for illustrated characters. If the original work is a drawing or 3D representation, it qualifies as an “artistic work” under the Copyright Act. In that case, the original model is simply compared visually to the reproduction made from it. Plus, certain famous characters may be registered as trademarks, giving them additional protection under the Trademarks Act.
[2] These exceptions don’t apply if the copyright owner also has a trademark on the work. See MédiaQMI inc. c. Murray-Hall, 2019 QCCS 1922.
[3] See Aaron Schwabach, “The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright,” (2009) 70:3 University of Pittsburgh Law Review.