I was presented with an interesting question a while back when an author had to deal with fanfiction. A writer was successful enough to have a fanbase, who would sometimes send her fanfiction they wrote based on her novels. At one point, a fan sent her some fanfiction that aligned very closely with the plot of her upcoming novel. That made her concerned that the fan might sue her for copyright infringement if she published the novel with the existing plotline. What should she do?

Before diving into that question, I want to backtrack and talk about fanfiction in general. For those unfamiliar with the term, fanfiction is when fans write stories that take place in the author’s fictional universe. For instance, one of the earliest popular examples took place in the Star Trek universe, where the fan created a new crewmember of the Starship Enterprise and wrote stories about this new character.

Fanfiction can be quite entertaining, but it creates a problem for the author of the original series. On the one hand, these stories written by fans technically infringe on the author’s copyrights, namely the right to create derivative works based on the original. On the other hand, the infringers are fans, usually devoted hard-core fans, and cracking down on them could potentially alienate the author’s fan base. Most authors choose to allow fanfiction as long as it’s clear that it is not an official part of the canon. When the fan tries to pass it off as an official work and/or tries to monetize their fanfiction, then the author will step in and enforce their rights.

But what about the problem I opened with, where someone’s fanfiction is eerily similar to the author’s work in progress? Technically, since the author wrote the manuscript before seeing the fanfiction, there is no infringement since the author didn’t copy anything. However, proving that in court is something else entirely. If the author can’t prove that the manuscript was written before she ever saw the fanfiction, then she could very well lose the case. If she had documented when she received the fanfiction, the status of her manuscript at the time, etc., then she would likely be fine, but that wouldn’t have prevented the visit to the courtroom. In this instance, she simply rewrote the manuscript to avoid the problem.

Another method that could prevent this issue would be to have a policy of never reading your own fanfiction; if you never read it, you can’t have copied it. This is certainly less fun, but it’s probably the safest route overall.

These kinds of questions are always tricky because they circle less around the law and more on the relationship you want to have with your fanbase. If you would like some help navigating these murky waters, feel free to reach out to me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.