FanFiction, or fanfic, is a form of literature created by fans of already established media, such as video games, films, television shows, and using characters, environments, or storylines from pre-existing copyrighted material. Merriam Webster[1] defines it as “stories featuring popular fictional characters that are written by fans and frequently posted on the Internet”. Although the modern definition of fanfiction emerged in the 1960’s when Star Trek fans began writing their own alternate plotlines, endings, and epilogues, fanfiction in its form has existed from some time now. With the advent of mainstream popular websites like FanFiction.net, AO3 and Wattpad having a global fan following there has been a boost in the fanfiction but they operate in a legal grey area.[2]
The Indian Copyright Act of 1957 as amended in 1999, 2002 and with the subsequent amendment of 2012 that are inline with the Berne Convention for the Protection of Literary and Artistic Works, 1886, and the Universal Copyright Convention, to which India is a signatory, Besides this India is also a signatory to the Geneva Convention for the Protection of Rights of Producers Of Phonograms as well is an active member of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) and the World Intellectual Property Organization (WIPO)[3]
Compared to the broad “fair use” provision in the United States, India has a narrower “fair dealing” regime under Section 52(1)[4]The Copyright Act lists exceptions under which work protected by copyright can be utilized without permission such as Private or personal use, Criticism, review, reporting and Education and research, Section 52 lists exceptions under “fair dealing,” which may extend to fan fiction. In India TV Independent News Service v. Yashraj Films[5], the Delhi High Court put stress on the fact that fair dealing must not injure the commercial interests of the copyright holder.
Indian courts have not directly decided if fanfiction is transformative enough to be considered under fair dealing.The idea of “transformative use” provides a compelling defense for fanfiction authors. This indicates that the new work adds new meaning, concepts, or goals to the original. Transformative works frequently come under fair use regulations in nations like the U.S., particularly if they contain commentary or criticism. If a fanfic changes or expands on the original work by a significant amount, it would have a better case for fair dealing. Fan fiction tends to be non-commercial, so it is less likely to be infringing. But commercialized fan works (such as those sold on Patreon) could face legal attention.[6]Monetization increases the risk of legal action, as commercial fan fiction directly competes with the original work
Fanfiction is generally a derivative work, i.e., it is derived from an existing copyrighted work. In India, the exclusive right to make derivatives is with the original copyright holder only, thus most fan fiction is technically infringing. Section 14[7] of the act provides the copyright holders with exclusive rights to reproduce, adapt, and distribute the work.
Furthermore, Section 57[8], safeguards authors’ moral rights so that they are entitled to object to unauthorized changes in their work. Authors are entitled to moral rights over their works such as the right to prohibit distortion or alteration. If a fanfic alters a character or plot drastically so that the original author does not approve, it may result in a court challenge.
The Supreme Court of India in R.G. Anand v. M/S. Deluxe Films & Ors.[9] ruled that copyright does not cover ideas but the particular expression of ideas. If fanfiction is only based on an idea but not the exact expression, it may not be infringement.
Fanfiction does not fall neatly into these categories, so it is not clear whether or not it would be fair dealing. In the AmarNath Sehgal v. The Union of India[10]case, the court stated it’s necessary to weigh protecting the rights of the original creator against permitting artistic freedom. Although this case was not a fanfiction case, the same principles might be used particularly if the fanfiction creates new meaning or commentary on the original work.
Fifty Shades of Grey originated as Twilight fan fiction but became an independent work. While U.S. law allowed this, Indian courts may not be as lenient.[11] Whereas in the case of Anderson v. Stallone[12] The Court found it evident that Anderson’s creation was a derivative work, according to 17 U.S.C. section 106(2), the rights to derivative works belong solely to the copyright holder (which is Stallone in this situation); and because Anderson’s work was not authorized, it cannot receive any form of protection, Similar form of rulings can be seen in India in the cases like in Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd.[13], the Delhi High Court clarified that substantial adaptation without permission constitutes a clear violation of copyright law. Similarly, in Star India Pvt. Ltd. v. Leo Burnett[14] where the court reaffirmed that adaptations require authorization from the original creator, making unauthorized fan fiction adaptations of Bollywood films likely to be infringing.
The intersection of AI and fanfiction presents complex problems within the realm of copyright law. Fanfiction, prone to involve the creation of derivative works of already copyrighted characters and plotlines, has generally existed in a precarious legal space, employing the doctrine of fair use to defend its existence. Yet with the emergence of generative AI technologies, fan creators have become alarmed since these technologies are able to replicate and copy already existing fanworks in order to generate new stories without consent or reward. This raises fundamental questions regarding ownership and protection of creative work, especially given that AI-generated work might not be considered for copyrighting because it lacks human authorship, as quoted in such cases as Thaler v. Perlmutter[15]. The prospect of AI profiteering from fanfiction jeopardizes the creative communities themselves, and directs attention towards new, more modern legal frameworks trading technological advances against originators interests and rights. With fanfiction developing in this digital age, it will be vital to settle these copyright issues to secure a civil and sustainable creative environment.[16]
In the matter of Anil Kapoor v. Simply Life India & Ors.[17]The case centered on the application of generative AI to illustrate a celebrity in imaginary situations without obtaining consent, resulting in a decision that these representations breached personality rights. This suggests that although fanfiction can be imaginative, it might encroach upon privacy and publicity rights if it features actual individuals without their approval.
Overall, fan fiction encourages creativity and friendship, but it exists within a limited legal system that serves the interests of original authors more than those of fans. Legislators and judges will have to wrestle with these nuances as online environments and emerging technology evolve in order to create a balanced system that safeguards intellectual property rights as well as the creative liberties of fans. In India, how this new medium of creativity will manage to coexist with already existing intellectual property rights will be based on the constant battle between copyright law and fan fiction.
[1]Merriam-Webster, Fan Fiction, MERRIAM-WEBSTER DICTIONARY (last visited Feb. 20, 2025), https://www.merriam-webster.com/dictionary/fan%20fiction.
[2]Sinbay Tan, AI Fanfare & Fanfiction: Do Fanfiction Writers Have Protections Against Artificial Intelligence?, Brook. L. Rev., Nov. 19, 2024, at 1, 8.
[3]Hemendra Singh & Shalinee Vishwakarma, Copyright Law and Fanfiction, J. Intell. Prop. Rts. (NISPR), Sept. 2024, at 396, 401.
[4]The Copyright Act, 1957, § 52.
[5] India TV Independent News Service v. Yashraj Films, AIR 2013 (NOC) 315 (Del.), 2013 (1) ADR 811, (2013) 1 RECCIVR 557, (2012) 192 DLT 502 (India).
[6]Hemendra Singh & Shalinee Vishwakarma, Copyright Law and Fanfiction, 29 J. Intell. Prop. Rts. 396, 396-401 (2024).
[7]The Copyright Act, 1957, § 14.
[8] The Copyright Act, 1957, § 57.
[9]R.G. Anand v. M/S. Deluxe Films & Ors, AIR 1978 SC 1613, (1979) 1 SCR 218, (1978) 4 SCC 118 (India).
[10]Amar Nath Sehgal v. Union of India, (2005) 117 DLT 717, (2005) 30 PTC 253 (Del.) (India).
[11]Business Insider, Fifty Shades of Grey Started as Twilight Fan Fiction, BUSINESS INSIDER (last visited Feb. 20, 2025), https://www.businessinsider.com/fifty-shades-of-grey-started-as-twilight-fan-fiction-2015-6.
[12]Anderson v. Stallone11 U.S.P.Q.2d 1161 (C.D. Cal. 1989)
[13]Super Cassettes Industries Ltd Vs. Hamar Television Network Private Ltd2011 Ptc (45) Ptc 70 (Del.)
[14]Star India Pvt. Ltd. v. Leo Burnett (2019 SCC OnLine Bom 3044)
[15]Thaler v. Perlmutter Item No. 22-CV-384-1564-BAH
[16]Singhania & Co. LLP, Artificial Intelligence and Intellectual Property: An Analysis Under the Indian Copyright Act, LIVE LAW (last visited Feb. 20, 2025), https://www.livelaw.in/law-firms/law-firm-articles-/artificial-intelligence-intellectual-property-indian-copyright-act-singhania-co-llp-238401.
[17]Anil Kapoor v. Simply Life India & Ors CS(COMM) 652/2023(Delhi)(India)
This article has been written by Ashutosh Bhagchi. For any other queries, reach out to us at: queries.ylcc@gmail.com
