Fanfiction is a legal gray area. I think we all know that by now. And yet there have been mega-bestsellers that started out as fanfic- think, Fifty Shades of Grey. Jane Austen fanfic (JAFF) is also enormously popular. So, how does one write fanfic and not get sued into oblivion?
This is not formal legal advice. I’m not a lawyer, and this is not a consult. This is just stuff I picked up along the way, doing research because I wanted to be able to write Pride & Prejudice fanfiction without landing myself in court. And I have another unrelated story on deck, that will be published under a pen name (One of the OCs is a little too close to ‘me’ for comfort; she was originally a writing exercise, then became a full-fledged character and wandered into the story. Now I can’t get her to leave).
The first way to write fanfic and not get sued is simple. Write it and keep it to yourself. No one cares what you scribble down in a notebook or type up on your laptop. Thank goodness.
Another way to write fanfic is to publish it only on one of the designated fanfiction hosting sites- Fanfiction.net is the most popular. You can also host it on a livejournal-esque platform or a blog. But even this comes with pitfalls. Some authors are very possessive of their worlds, and don’t want anyone else playing in them. You’re unlikely to get sued right off the bat if you fall afoul of one of these authors, but you will get a cease-and-desist notice. And if you do get one, for heaven’s sake, respect the author’s wishes and take down the fanfic. It’s not worth the fight. They own the world; they will probably win the subsequent suit, even if you’re not making money off of your fanfic.
But what if you desperately want to publish a fanfic and make money off of it? Well, your first option is to pick a world that’s out of copyright. This is part of the reason Jane Austen fanfic has become so popular in recent years- the copyright has expired and anyone can play in that sandbox. Just make sure to do your research. Copyright laws vary by location, and change occasionally. If there’s any doubt, leave it in the notebook or on the private computer for a few more years. Bequeath it to your kids if you must.
Or you can break out the editing brain and file off those serial numbers. Fifty Shades of Grey started out as a Twilight fanfic, and now the author is a millionaire. It can be done.
Very carefully. Your one advantage is that most fiction is derived from previous fiction, in one way or another. There are a limited number of basic plots and standard tropes that get recombined to produce most stories, original and not. So no one’s likely to notice if the love interest is a fiery red-head, or the hero defeats the villain by sneaking into the castle through the dungeons. It’s been done so many times that most readers won’t connect any one particular incident to the source material. They will, however, connect a string of evidence if there is one. So:
Do not, under any circumstances, keep the characters’ names the same. That’s the most obvious sign of fanfic in existence. Similarly, if a character has a particular catch-phrase, tagline, or distinguishing feature, get rid of it or alter it beyond recognition. No matter how cool you think it is.
If there’s any kind of made-up language in the source material, don’t use it. That belongs to whoever owns the world, which is not you.
If there are unique- or even merely rare- plot points, alter them or leave them out. The hero using a particular trap to foil the villain, a ‘meet-cute’ scene between love interests that you’ve never seen anywhere else, etc. Change it, somehow.
Basically, your fanfic should not be recognizable as fanfic. That’s the sort of detail that comes out only in author interviews, or if you happen to mention it to a beta reader, so they can be on the lookout for ‘tells’. Remember to keep some of your beta readers in the dark; you’ll get better and more wide-ranging feedback if only some of them know that origins of the story.
Filing off serial numbers requires you to be grounded in reality, pop culture, and the fandom of that particular world. How else will you know what to avoid? So if you’re going to write and publish fanfic, you need to do some research. Read all the meta data associated with the work, fan theories, author interviews, etc. It can be done, but you have to be careful, lest you find yourself hauled up in front of a judge for the offense of playing in the wrong sandbox. Even if it is a really cool sandbox.