Fanfiction Is Older Than You Think – But Can It Survive Stricter Intellectual Property Laws?

In this article:

• Fanfiction, or fan-created works set in or centered around characters from a popular work of media have existed as long as humans have been telling each other stories.
• Some of those older proto-fanfictions, like Dante’s Inferno or Milton’s Paradise Lost, have become literary classics in their own right.
• But with the rise of intellectual property laws meant to protect a creator’s rights, the status (and legality) of fanfiction has come into question.
• How can society balance the rights of original creators to profit from their work while still preserving a space for the creativity and possibility inherent in fan-created spinoffs and retellings?

Quick: What’s your favorite movie, book, or show? Think of something you’re really obsessed with. Are you one of the legions worth of Star Wars fans? Maybe you were once a non-comic book fan who ended up watching superhero movies for almost a decade after watching the first Avengers movie in 2012.

Whether you’re into sci-fi or you’re still taking Hogwarts house quizzes, one way or another, you’ve likely been part of a fandom.

Fandoms are interest groups centered around a particular work of media.

Often, it’s the long series types with their own fictional universes that are prime candidates for gaining a big fandom. Just think of Harry Potter, Mortal Instruments, and A Song of Ice and Fire.

Press F to pay respects to the souls of ASOIAF fans.

Seems innocent enough, right? But fandoms are, among other things, known for toxic fan wars, a common scenario among K-Pop fans, and drama involving who owns fanfiction, the most famous of which was centered on the Harry Potter fandom and involved YA novelist, Cassandra Clare.

Fans and Fiction: A Tale of Two Cities

Some of the first fanfiction, as we commonly conceive of today, was written for the Star Trek fandom. Released in the 1960s, the Star Trek series would mark the introduction of science fiction into modern pop culture.

The series is set in the distant 23rd century and follows the interstellar voyages of Captain James T. Kirk and the U.S.S enterprise crew. It had a surprisingly diverse cast, especially for its time. Obviously, it was still a bit flawed in that regard, seeing as many of the minority roles were simply that: minor roles.

While the series is a big name in science fiction, what many non-fans don’t realize is that Star Trek was canceled after three seasons due to low ratings. It wasn’t a reflection on the quality of the show.

Watch the original Star Trek today and you’ll find that it still holds up and, at times, even feels contemporary because of the way it tries to discuss social issues that still exist for us today.

Though fanfiction had always existed in one form or another (because who hasn’t thought of alternate endings to their favorite series?) the Star Trek fandom and their fanzines solidified fanfiction into the internet institution it is today.

Its unique concept and meaningful storylines earned Star Trek a highly dedicated (and highly educated) following of teens and young adults that would save the series until it could get to its third season.

It’s this same educated and dedicated following that would make some of the first fanfiction designed specifically for a fandom.

Though fanfiction had always existed in one form or another (because who hasn’t thought of alternate endings to their favorite series?) the Star Trek fandom and their fanzines solidified fanfiction into the internet institution it is today.

The early Trekker, which is what the fandom calls itself, fanzines published from 1967-1971 contained fanfiction following the popularity of the first Trekker fanfiction in Spocknalia, the very first of the Star Trek fanzines.

Several sources available online assign the first fanfiction status to the Star Trek fandom. After all, they have the documentation right there and it was clearly stories written by fans for other fans.

But take a moment to sit down and think of what makes fanfiction a work of fanfiction and you’ll find that this literary tradition is older than it seems.

I know – it sounds pretentious to call fanfiction a literary tradition, but that status is something we assign to oral traditions and, really, what are variants of folklore if not works of fanfiction?

Before the days of print literature, stories were shared between communities that shared one overall culture.

As the existential psychologist, Rollo May, wrote, “Myths speak out of the primordial, preconscious realm of the mind which is powerful and chaotic. Both symbol and myth are ways of bringing order and form into this chaos.”

The shared stories of cultures, in this sense, is a way of understanding the world, including the self, and it connects us to other people in a community – much like fanfiction.

In the days of ancient Greece, the Iliad and the Odyssey were the two great works that rose out of the events of the Trojan war.

Both the historic event that inspired these landmark pieces of classic literature and the faceless Homer are shrouded in mystery, blurring the lines between what is real and what is simply cultural myth.

But the Iliad and Odyssey provided a way to understand the unflinching brutality of war and what could drive people to commit such horrors.

Though these epics are often attributed to Homer, there’s really no way of knowing who their original creator is given that it began as an oral story, spoken and passed along between fragile human memories which are notoriously inaccurate.

When the British writer set out to gather one comprehensive narrative of King Arthur’s adventures, he found that there was no one story, the legends having been created by everyone and no one.

Even assuming that oral traditions could be passed on with accuracy before the invention of writing, there’s still no assurance that ancient storytellers, like the storytellers of today, were not entertainers.

In the days before television, the storyteller was one of the best sources of entertainment and, like any YouTuber asking you to subscribe to their Patreon, created content to make a living.

Many storytellers wouldn’t have been above embellishing, altering, and erasing entire plotlines from a narrative in order to make an exciting tale that best suits their audience. When Walt Disney made his Cinderella, his story was such an alteration of an alteration that his Ella’s shoes weren’t the plain sandals of antiquity but an enchanted glass shoe.

Move the needle of time forward to the medieval period and you find another great work of fiction that has dozens of versions and additional stories: King Arthur and His Knights of the Round Table.

The title comes from Roger Lancelyn Green‘s retelling of British Arthurian legends but in this case, the retelling is just a respectable way of saying fanfiction.

When the British writer set out to gather one comprehensive narrative of King Arthur’s adventures, he found that there was no one story, the legends having been created by everyone and no one.

There’s always a heavy pall that hangs over fanfiction: the assumption that it’s inferior because it’s written by non-professional authors.

Jean Townsend, another contributor to Arthurian legend with her interactive novel Guinevere, explained:

“The concepts of intellectual property and copyright law are very new, relative to the long history of humans telling stories…Why is Arthurian lit the ultimate fanfiction? Because there’s no official ‘original’ version and no canon. This isn’t just a question of Arthurian lit being public domain because it’s old. We don’t have an identifiably original version. “

Some fans of the legends aren’t keen on this take, though. There’s always a heavy pall that hangs over fanfiction: the assumption that it’s inferior because it’s written by non-professional authors.

On this, Townsend writes, “If you want to write your own Avengers story, you’re stuck being treated as inferior to a more ‘original’ author, but if you want to write your own King Arthur story, you can be part of a long line of respected authors including Mark Twain and T.H. White. The Arthurian stories are mythic, enduring, and perhaps most importantly, freely changeable.”

Though British novelist Neil Gaiman can easily claim the status of an original writer, he’s always been quick to insist that his A Study in Emerald is a work of fanfiction, not ‘sort of’ fanfiction.

Today, epic poems like Beowulf exist not only in dreary university literature classes but in the hands of authors and fans who genuinely love the piece, giving it a home online in sites like Archive of Our Own.

As intellectual property laws solidify and give original writers better standing and artistic credibility over writers of derivative work, fanfiction finds fewer and fewer places to exist safely without persecution.

Not unlike the LGBTQ+ community that makes up the beating heart of most fandoms.

Fanfiction Is Fandom Persevering

“Who Writes Harry Potter Fan Fiction? Passionate Detachment, ‘Zooming Out,’ and Fan Fiction Paratexts on AO3.” is exactly what it says on the box. It’s a research paper by Jennifer Duggan of the Norwegian University of Science and Technology that goes into the demographics of the Harry Potter fandom.

Though the authors featured on the New York Times’ Bestsellers list are overwhelmingly male, fanfiction writers are a largely female and feminine-identifying group.

At least 50% of Harry Potter fanfic authors are female and all of the writers fell under an LGBTQ+ subgroup ranging from queer and gay to more obscure identities like asexuality and aromanticism.

None of the fanfiction writers involved in the study identified as straight or heterosexual.

It’s true that the study was conducted only on the Harry Potter fandom but similar proportions of queer-identifying writers appear to proliferate in fanfiction writing communities.

Of course, the anonymity of the internet makes it harder to guarantee the exact numbers but an Archive of Our Own user by the name of toastystats broke down the romance fanfictions posted to the site into different categories based on gender pairings. M/M, which stands for Male/Male, are gay pairing stories while F/F stories contain lesbian relationships.

It’s not an unsurprising trend.

Fanfiction, for many queer people, is a way to shine a spotlight on the beauty of queer love.

A lot of people like to see themselves in media in a way that reflects their experiences and stories as human, dignified, and rich in expression – in short, the way they themselves experience it.

With little by way of decent representation, many LGBTQ+ fans are forced to rely on queer subtext and are subjected to queerbaiting. In this context, the fun of fanfiction isn’t just about making cute fictional couples kiss. Fanfiction, for many queer people, is a way to shine a spotlight on the beauty of queer love.

Heterosexual relationships still make up a significant slice of the fanfiction pie, but it sits at a measly 15.4% compared to the 42.6% that securely places gay fanfiction in a dominant position.

Or shall we say, an Alpha position? As in, the Alpha/Beta/Omega dynamics of the Omegaverse genre of fanfiction. You know, the same Omegaverse that ended up in a heated legal battle that reached the U.S Federal Court.

Wolves in Federal Court

Inside the United States Federal Court are two wolves and those two wolves are fanfiction author #1, Addison Cain, and fanfiction author #2, Zoey Ellis.

Now, the question of which of them is Alpha in what’s looking to be a landmark case in fanfiction history relies on whether or not a trope created by the fanfiction community can be copyrighted.

In the world of fanfiction, a ‘trope‘ is defined as a storytelling shorthand that many audiences are familiar with. The association of the color black with the concept of evil and white with good is a trope.

Shakespeare’s star-crossed lovers are another example of a famous trope. Tropes are literary conventions that readers and viewers are likely to understand based on previous iterations of the trope in other fiction.

As to what Omegaverse is, that takes a little more explaining and I hope you’re not reading this part in an office or the subway.

Omegaverse is a fanfiction trope/genre that uses fictional wolf mating cycles and other wolf-like behavior as a basis for romance and social dynamics in a fic.

Common features of Omegaverse fanfiction are “knotting,” which is a phenomenon an Alpha “locks” their penis into an Omega’s orifice to ensure that they become pregnant. This dynamic also comes with specific social roles.

Omegas are often second-class citizens, existing only to be the subjects of sexual desire of Alphas and, on rare occasions, lesser Betas.

The Omegaverse trope is often used in predominantly M/M settings, meaning that the original work that an Omegaverse fanfiction is based on rarely has female characters.

It’s a very out-there trope, which might make you think it originated in the mid-2000s, but its origins actually stretch back to the first Star Trek zines which also popularized mpreg, another associated trope of biological men becoming pregnant.

So, it’s old. Does this mean that the Omegaverse suit features a complainant who wrote the first Omegaverse Star Trek fic? Big nope. Instead, it’s Addison Cain suing other Omegaverse writers by claiming that she invented Omegaverse.

Had the case made it all the way through to the U.S. Supreme Court, we may have seen a change in how courts rule on claims of plagiarism and would likely attempt to better delineate at what point fanfiction legally becomes an original work.

Cain was originally a fanfiction writer who turned her Batman: The Dark Knight Rises (2012) fanfiction Born to be Bound into an original work that was published with Blushing Books. Later in 2018, Zoey Ellis published her own Omegaverse work Crave to Conquer with Quill Ink Books.

Cain leveraged a DMCA takedown notice to have all of Ellis’ work removed from major online book platforms such as Amazon, Barnes and Noble, and Google Play.

Though Ellis was eventually able to get her works put back up, the fact that the DMCA takedown removed her books from her fan’s devices (essentially Thanos snapping her hard work overnight) made it clear to her that Cain’s accusations could damage her career.

Quill Ink Books, on behalf of Ellis, filed suit as plaintiff against Rachelle Soto, Addison Cain’s legal name.

The case was docketed by the U.S District Court for the Eastern District of Virginia as Civil Action No. 1:19-cv-00476 LO MSN. If you have the patience to read through a 38-page court case then, by all means, click on that link.

But if you’re looking for a TL:DR, here’s all you really need to know about whether Cain was right:

It’s an interesting legal thought experiment. Had the case made it all the way through to the U.S. Supreme Court, we may have seen a change in how courts rule on claims of plagiarism and would likely attempt to better delineate at what point fanfiction legally becomes an original work.

The relative newness of fanfiction and its proliferation on the internet means that the area remains a legal gray zone that isn’t as well explored as other more frequently disputed areas of intellectual property.

Sadly, we might never have a clear answer to the questions posed in Quill v. Soto, seeing as Quill Ink Books had to declare bankruptcy in 2020.

Megan Gorsalitz put forward two main reasons as to why Soto had no real basis for the DMCA takedown notice that started it all.

The first reason: Omegaverse belonged to everyone.

It was a shared trope, much like Arthurian legends, that had no specific owner and no set “canon,” a term referring to events and details found in an original work on which a fanfiction is based.

Since there’s no such thing as an original Omegaverse work, there’s no canon and no one owns Omegaverse.

The second reason: Copyright doesn’t protect general ideas in a work of fiction.

Can you copyright Bella Swan falling in love with Edward Cullen? You can’t, but Stephenie Meyer can. What neither of you can do is copyright the vampire myth.

You’d think people would have learned how flimsy their arguments can be when claiming shared narratives as their own but that hasn’t stopped Andrey Duksin, a known trademark troll, from putting the SCP Foundation under legal fire.

Secure, Contain, Protect Our Shared Stories

Here’s another funny thing about fanfiction and its shared narratives: No one owns the SCP Foundation, the original work, but Remedy Entertainment owns Control, a fanfiction of the original.

Released in August 2019, Control is a third-person action-adventure that has you control Jesse Faden, a woman on the search for her brother who was taken by a shadowy organization known as the Federal Bureau of Control.

Players discover documents regarding anomalous objects, places, and events in a Brutalist office building known as the Oldest House, itself a supernatural location. It hasn’t missed a lot of fans that Control takes heavy, and I mean very heavy, inspiration from the SCP Foundation.

The SCP Foundation is an online database of short horror stories that was launched in January 19, 2008.

The “Foundation,” as it’s affectionately called by fans, presents itself as a legitimate government organization and compiles its horror stories as a series of number-coded logs and documents that detail supernatural objects, creatures, and events.

That said, it’s all fair game. Mikael Kasurinen, the real-life director for Control, admitted that the SCP Foundation influenced the game. He says it’s ‘one of’ the inspirations, but eagle-eyed fans of both the game and the Foundation have pointed out that the SCP Foundation is ‘the’ inspiration.

You can rest assured that there will be no legal disputes between the two. The Foundation is registered under a Creative Commons copyright license which means that other writers, developers, or any sort of artist looking to create work based on the Foundation can do it without having to pay SCP Foundation writers a cent.

This Creative Commons license is what gave Andrey Duskin the ability to produce and sell his own SCP Foundation merchandise. But in true SCP style, Duskin would pull the reality-bender move of suing the people who created the original work.

After filing a Russian trademark over the SCP Foundation, Duskin was able to shut down the Russian branch of the Foundation.

The event forced SCP Foundation writers and fans to mobilize, just as their fictional containment teams would, to secure and contain the Duskin threat. Left undisputed, Duskin could potentially claim copyright over the other branches of the Foundation, destroying the institution’s shared stories.

Back to the Future of Fanfiction

Though fanfiction remains a legal gray area, these tiny hiccups haven’t stopped Mr. Grey of E.L James’ Twilight fanfiction, Fifty Shades of Grey, from climbing to the top of the New York Times‘ Bestseller list.

The sultry, though not-so-accurate, novel series began as a Twilight smut fic, a fandom term for erotic stories, posted to Fanfiction.net.

In those days, Fifty Shades was called Masters of the Universe, but after James’ reworking of the story into her own original work, it began to sell like hotcakes, prompting Random House’s Vintage Books to give her a seven figure book deal.

Not bad for fanfiction, eh?

Okay, okay, maybe it’s not the height of literary achievement. But Fifty Shades and other former fanfic works, among which is Cassandra Clare’s Mortal Instruments series, mark a shift in how we treat fanfiction as a legitimate work of literature.

Following closely in the footsteps of the bards of yore is bestselling author Madeline Miller.

Miller gained fame for her rich and moving prose in Circe, a reinvention of the Odyssey through the eyes of a female character, and The Song of Achilles, which retells the Iliad in a way that focuses on the romance between Achilles and Patroclus, an idea often brushed off by modern historians as a “guys being pals” duo.

Miller’s work is deliciously fanfiction-y in the way she’s given minorities a voice in “respectable” fiction and it’s a trend we can only hope continues.