52:2 Copyright and the Commercialization of Fanfiction


Anne Rice doesn’t “allow” fanfiction; Hugh Howey encourages it; E.L. James became a millionaire as a result of her foray into fanfiction; and L.J. Smith can only make money from her own original vampiric creations as a fanfiction author. No longer a geeky backwater of the writing community, fanfiction has entered the mainstream of creative and commercial literary endeavor in the digital age. Not only has the rise of the Internet enabled the exponential growth of traditional noncommercial fanfiction communities, but it has set the stage for the successful commercialization of fanfiction. However, copyright law has not kept pace with these developments. It was previously assumed by many scholars that fanfiction was permissible as a fair use provided it was noncommercial in nature.

Commercialization alters the paradigm. Commercially successful fanfiction authors such as E.L. James and Sylvain Reynard have brought the practice, and its commercial potential, into the spotlight. More recently, the Kindle Worlds project, launched by Amazon.com in 2014, changed the landscape for fanfiction writers and brought some previous assumptions about copyright, licensing, and ownership into sharp focus. This Article examines the application of copyright law to the most recent commercial fanfiction practices, with specific reference to the fair use defense. It also considers the impact of programs like Kindle Worlds on legal and market assumptions about the ownership of fan-created content.