I Wrote This, I Swear!: Protecting the “Copyright” of Fanfiction Writers from the Thievery of Other Fanfiction Writers

I Wrote This, I Swear!: Protecting the “Copyright” of Fanfiction Writers from the Thievery of Other Fanfiction Writers

Narisa Bandali

People who write fanfiction do so to explore, sustain, and contribute to content to which they feel a connection––content that is generally protected under copyright. The legal status of fanfiction in comparison to copyright law is a gray area, but fanfiction is generally considered to be transformative. Regardless of how a court may view fanfiction, writers of fanfiction invest time, effort, and passion into works that can sometimes be longer than a normal published novel. While fanfiction is currently a topic of discussion in the legal world, plagiarism of fanfiction tends to be ignored. Similarly, plagiarism within the fanfiction community does not currently have any real regulation besides social pressure, like online shaming. 

However, fanfiction writers can be protected from those who plagiarize their work through the codification of their current social norms and the emulation of current, legal frameworks. The fanfiction community already has social norms, including those against the commercialization of fanworks. The community also frowns upon plagiarism. American and European law have instruments of regulation that allow rights holders to have infringing works taken down through the Digital Millennium Copyright Act and the European Directive on Electronic Commerce, respectively. An association that adapts legal instruments to regulate plagiarism in the fanfiction community, codifying social norms into a system of best practices, can allow fanfiction authors who have been victimized by plagiarists to seek protection for their creations. Similar to the notice-and takedown procedures under the DMCA and European Directive on Electronic Commerce, the association can regulate notice-and-takedown procedures of plagiarized works through voluntarily enforcement of websites that host fanfiction. A notice-and-takedown procedure within the fanfiction community can protect fanfiction writers who invest hours and effort into their creative expression.

101 J. Pat. & Trademark Off. Soc’y 274 (2019)

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