This article is written by Sharanya Chowdhury, a legal intern at Lawsikho. The article has been edited by Smriti Katiyar (Associate, LawSikho).
The world of writing has never been an easy one to tread, the complications of publishing, the monotony of editing, and the investment required to actually put your work in the market have discouraged many young teens from flexing their writing or artistic skills.
Recently the rise of fanfiction and fanart communities has made it easier for young writers to write stories that they are passionate about, often making sequels or making an alternate universe within the original work. Many of these writers hope to turn fanfiction writing into a source of revenue, but with minimal legal safeguards, is it even possible? This and other questions on potentially marketable storylines and ways in which fanfiction writers can protect themselves from potential lawsuits.
The Copyright Act of 1957
In India, copyright is governed under the Copyright Act of 1957 which reflects the general practices and procedures of the Copyright Office for examination and registration of literary works. It explains the process for examination of literary work application(s), documentation of ownership; provides guidelines on how to identify the originality of authorship, copyrightable subject matter, and discusses the grounds on which a discrepancy letter may be issued. This specific subject can be found in the literary manual (referenced below) published by the Copyrights Office. However, reading and understanding such a lengthy and technical document may not be possible for everyone, thus the aim of this article would be to answer simple questions on the basis of this document while avoiding the use of legalese involved in the same. It is imperative to note that there aren’t many cases that talk about ‘fanfictions’ in the world per se and none in India which makes this subject even more unpredictable.
Is writing fanfictions legal in the first place?
A common belief is that a disclaimer at the beginning of the fanfiction will protect you against all liability, this unfortunately is just a myth. A disclaimer does not equate to permission from the author. It might clarify that your work is not intended to deceive the audience, but it does not mean that the author cannot sue you for damages anymore.
Generally, authors don’t seem to mind fanfictions and, in some cases, even encourage them as long as it is done for non-commercial/ non-profit purposes, if you are not receiving any kind of compensation such as money, property, advertisements, services, etc. and the website you’re using is from a not-for-profit organisation such as Wattpad, fanfiction.net and Archive Of Our Own, your work should come under ‘fair use.’ This has been defined in Section 52, in the Copyright Act 1957, but to simplify, when the work does not threaten the revenue of the original creator, copyright claims don’t tend to come into the picture. Please note that the ‘fair use’ defense is not absolute and can depend from case to case. If the work you’ve created is a parody or satire, you will find yourself more protected than others as these works get special rights. Please bear in mind that these terms are still vague and there is a lot of grey area between parody and copied work.
Can I ‘own’ my plotline?
No, copyright is only extended to the expression and not to the actual idea, hence a plotline cannot be copyrighted. However, there can be an issue if your storyline is very close to another storyline, to demonstrate, let’s say your story revolves around a girl living in a dystopian society who participates in the biennial ‘Tumbler Games’ to feed her family, the game involves contestants harming each other till one last contestant remains unharmed. This might actually get you in trouble with Suzanne Collins’ ‘Hunger Games’. In such cases, depending on the court’s discretion, you may be charged with copyright infringement.
Note that copyright infringement is not the same as plagiarism as the latter applies when ideas are copied, so technically plagiarism in itself is more of a moral wrong, which makes sense because almost every work can be said to have at least a small amount of plagiarism. When a certain level of plagiarism is breached, it becomes copyright infringement. Copyright violation occurs only when a specific fixed expression (e.g., sequence of words, use of an image) is copied.
Can I sell my fanfiction to the copyright holder?
Yes, and that is the only legal way to do it. If you are trying to sell a storyline to someone other than the copyright holder, it is advisable to change the name of the characters, remove any direct references and then put it on the market, this way it can still be sold as an original work. There have been many examples of such works in the past and a recent one in the movie ‘After’ which was originally a One Direction fanfic or ‘50 shades of grey’ which used to be Twilight fanfic.
- If you are worried that your work might not be original because it follows an unoriginal trope then you should refer to the principle of Scène à faire, which vaguely translates to “scene you cannot do without”. To exemplify: if your work is a typical ‘enemies to lovers’ plot in which the heroine falls in love with the hero after he saves her from a life-threatening event (I really hope it isn’t that, but for the sake of an example), you might fear that the storyline is too similar to many in known novels or Bollywood movies. This principle protects you to a certain extent and allows you to use such established tropes. The doctrine was first discussed in India in the case of RG Anand v. M/s Deluxe Films, where the key findings of the supreme court were :
An idea or a plot cannot form a part of the copyright, but what does, is how they are subject to presentation. If the same is such that suggests imitation, it would be equivalent to a breach of copyright.
- If the idea or the plot is the same, the existence of similarities cannot be avoidable. The court will then examine and determine the extent of the breach
- It would amount to a breach of copyright if any ordinary man is able to point out the similarities.
- Even though it was decided tThe theme of the work can be identical, but the execution of that idea must be different to constitute the originality
- More dissimilarities than similarities will indicate that there was never any intention to copy off someone else’s work.
The court also stated that the possibility of trying to evade plagiarism by covering broader concepts and making few changes here and there could certainly be prevalent. It is then the duty of the court to identify the uniqueness of the content and intent of the creator. The judgment then became a landmark case for all the cases after that. it was implemented in cases like:
- Twentieth Century Fox Film Corporation v. Zee Telefilms Ltd. And Ors,
K.R. Ravi Rathinam v. The Director General of Police,
- Narendra Mohan Singh and Ors. v. Ketan Mehta and Ors.
All this is great, but I’m a Fanartist, what about me?
Copyright applications pertaining to artistic works also come under the Copyright Act 1957 and Copyright Rules 2013 but here reading the manual (referenced below) may not be of much help because the anticipated infringement will not necessarily be of another artwork, instead, it will be of a literary work. In general, the answers to the questions tend to mirror the answers related to fanfiction
Is making fanart legal in the first place?
If the fanart is commercial in nature i.e merchandise such as keychains, mugs, clothing, stationery items, posters, or underwear with a picture of Lightning McQueen on it, the straight answer is no, as it will breach the ‘fair use’ doctrine discussed above. Please note that it won’t matter whether the pictures used are copied or drawn by you. On the other hand, if the artwork created is for your own artistic expression or to give a beloved, it will come under ‘fair use’. To be on the safe side, it will be a good idea to stick to a painting or craftwork instead of merchandise as it all boils down to the idea that you are producing something that the copyright owner sells or can sell for a profit. For the purpose of convenience, we will assume that fanart constitutes physical or digital artwork that is not to be affixed on merchandise.
Can I ‘own’ my fanart?
To answer this we will have to divide the fanart into two categories
Literature inspired fanart
This will consist of a fanart from a book that has not yet been converted into a comic and has no official artwork depicting the characters. In which case, it will be easier for you to navigate as compared to your fanfiction-writer friend. As long as there are visible differences between the character/scene/object you’ve created and what the author wrote about, you may own it as long as you don’t mention your inspiration or label it as ‘fanart’, the increasing contrast between your fanart and your inspiration will increase your chances of having ownership over it. The element of imagination and creativity is critical here.
Visually inspired fanart
This includes fan art from a work that either already has a visual representation of the plotline within it such as comic books or has a movie/series adaptation. The recent Netflix series ‘Shadow and Bone’ derived from Leigh Bardugo’s ‘Six of Crows’ and ‘Shadow and Bone’ is a good example of this. In such a case, the simple answer will be no, as long as your artwork resembles the actual inspiration to a recognizable extent, you cannot own your artwork.
Can I sell my fanart to the copyright holder?
Yes, and that is the only legal way to do it. Unlike fanfiction, fanart loses its value in the market the moment its resemblance with the original work is no longer recognizable because at that point, it is no longer a part of the franchise and you cannot sell your artwork as long as it mimics the inspiration, in this catch 22, it may not be possible for you to derive profits from your work.
After how long does a story/ artwork lose its copyright?
In India, the copyright of an original literary, dramatic, musical, or artistic work lasts for 60 years, after the death of the creator, as per Section 22 of the Copyright Act, 1957. This means that if you were to make a fanfiction of a classic piece like ‘Emma’ or ‘Little Women’, you would not be under threat because the copyright has now lapsed. This allows many directors to create movies/plays on these without having to secure the rights.
On that note let’s discuss the difference between a derivative work and a transformative work, the former simply furthers the plot or re-enacts it with less change to the original storyline, for instance, the movie ‘Pride and Prejudice’ (2005) will count as a derivative work as it does not change the main idea of the work despite certain alterations, whereas ‘Pride and Prejudice and Zombies’, Seth Grahame-Smith’s 2009 novel will count as a transformative work.
Am I entitled to credit if my work is commissioned by the original creator?
Not necessarily, technically the original work still belongs to the author of the book/series. There have been instances of fanfictions being read by writers of the book/movie which were later added to the sequels and thus became ‘canonical’ but compensation or credit has rarely been given to the fans who prompted the idea.
If an original storyline of yours has been commissioned by a company, you are entitled to compensation, you may be entitled to credit for the work depending on the kind of contract you are signing, in such cases, it will be a good idea to seek legal advice to be sure about the rights you have on your work.
What do I do if my fanfiction/ artwork gets stolen?
Fanfictions and fanart tend to have little legal protection which makes it easier for them to be copied and misused. The lack of actual cases regarding this in India makes it even more difficult to pave a proper recourse, some websites have communities that keep track of plagiarism and make sure that the credit goes to the proper author but they too can only remove such content from their own websites and can’t do much if the fanfic has been moved elsewhere. In such cases, it is better to contact the owner of the account, directly mentioning your disappointment on how the story has been stolen and passed off as their work, contacting the website that has copied material is also a good idea. In addition to this, fanfiction of fanfiction should not cause infringement since the primary content, in this case, was a derived work that has no copyright of its own.
The main issue with the concept of fanfictions and fanart is that although their concept is almost as old as the concept of publishing itself, they don’t have a lot of legal recognition especially because of how easy it is to publish them on the internet. In the recent trend, we’ve seen that authors don’t seem to mind fan-created work as it gives them publicity and allows them to gauge the enthusiasm of the reader about a specific character or plot, but a simple rule of thumb would be to not commercially advertise such material and only use it to feel closer to the stories you love.
An exception to this would be if you have managed to send your work to the author and get a jackpot deal, in which case, consulting a professional about your rights, remunerations and other details of the contract will be advisable.
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