Evolving Fan Fiction: Balancing Creativity, Copyright & AI Innovations




Fan fiction, a beloved realm where passionate fans weave stories within existing fictional universes, thrives in the grey area between creative expression and intellectual property (IP) rights. It is a derivative written content produced by fans of movies, TV shows, books, etc., and has gained popularity on internet-based platforms. Some of the Indian fan fiction are- “Life as We Knew It” by SFscribbles, “Mrs. Oberoi’s” by Hidden Queen, “Her Claim” by Jeelvyas03. However, its legal status remains ambiguous. This article explores the battleground of fan fiction, examining how copyright law attempts to balance these two competing interests.

Impact Of Copyright On Fan Fiction

Copyright rules come into effect as soon as an author begins writing fan fiction as it involves creating derivative works based on copyrighted material. Historically, two significant legal tests have been applied. The first, from the case of Nichols v. Universal, determined that copyright protection does not extend to the characteristics of stock characters in stories. Whether they are books, plays, or movies. The second, from Warner Bros. Pictures v. Columbia Broadcasting System, established that characters are not protected by copyright unless they “really form the story being told” and are not just “chessmen in the game of delivering the story”.

Comparing Derivative & Transformative Works Within The Fair Use Doctrine

The concept of Derivative vs. Transformative works and the Fair Use Doctrine is crucial in copyright disputes, as seen in the United States Supreme Court’s Campbell vs. Acuff-Rose music case. A derivative work is a new creation that is based on or incorporates elements of a pre-existing copyrighted work. It typically includes adaptations, translations, sequels, spin-offs, or any other form of transformation or modification of the original material. On the other hand, transformative works are a specific category of derivative works that involve significant creative alteration or reinterpretation of the original material. Transformative works play a crucial role in copyright law through the doctrine of fair use (in the United States) or fair dealing (in other jurisdictions). The Fair Use Doctrine involves four factors: (i) the purpose and character of the use, (ii) the nature of the copyrighted work, (iii) the amount used, and (iv) the effect on the market value. Transformative works, which introduce new elements and interpretations, fall under the first criterion.

The Indian Supreme Court case R.G. Anand v. Delux Films highlighted fair dealing’s role in fostering creativity while protecting original creators’ rights. Section 52 of the Indian Copyright Act, 1972, mirrors the US Fair Use Doctrine but offers narrower exemptions.

How Can Fan Fictions Be Justified?

Fan fiction can be defended based on the non-rivalrous nature of copyright law. The existence of fan fiction does not detract from the value or significance of the original work; instead, it often serves to promote and draw attention to it. Moreover, fan fiction creators typically do not seek commercial gain, nor do they aim to supplant the original work in the market.

Additionally, the defence of fair use is applicable. By considering the four-factor test (purpose of the work, nature of the work, amount copied, and effect on the original work), it becomes evident that fan fiction is predominantly created by fans for non-commercial purposes. These works originate from the imaginations of fans, resulting in entirely new stories that coexist with the original material without causing harm or competition. In the case of Suntrust v. Houghton Mifflin, the United States Court of Appeal deemed “The Wind Done Gone” by the respondent as fair use as it offered a critical reinterpretation of “Gone with the Wind” from the perspective of one of Scarlett O’Hara’s maids. The aim here was to challenge the original text, a common practice in fanfiction communities.

Fan Fiction’s AI future

Generative AI can create fan fiction by analyzing existing works and generating new narratives. Fans can use AI models to produce stories based on their characters, settings, and universe. When AI models are trained using existing fan fiction, creators of such fan fictions deserve compensation on the basis of moral rights. However, determining a fair use standard for such training data remains contentious.

Should AI-generated content be eligible for copyright protection? This question is central to the debate. The “Monkey Selfie” case exemplified the difficulty of applying copyright law, which traditionally protects human creators.
Generous fair use benefits all parties when abundant training data exists. However, it can hurt creators and consumers when data is scarce. Hence, the balance between fair use and compensating creators becomes crucial, especially when training data are scarce.


The legal landscape of fan fiction balances creative expression and copyright protection. Fan fiction, mostly non-commercial, allows fans to explore new narratives but often conflicts with copyright laws. With AI-generated content posing new challenges, particularly around copyright eligibility and fair use, it is essential to update legal guidelines with clearer definitions of transformative use in non-commercial contexts. Specific regulations for AI-generated content should ensure proper compensation for creators of training data. Promoting licensing agreements between copyright holders and fan fiction creators and implementing educational programs about copyright responsibilities can foster a more collaborative and respectful creative community.

Authors: Vyoma Patel, Khushboo Pareek, Arushi Sharma, Rutvik Mehta & Kalyanii Tipule



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