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How does Australian copyright law deal with fan fiction?

Be careful with fan fiction; it could violate Australian intellectual property law.

One of the world's most famous teenage wizards never visited Australia in the books, but he may have in one of the countless stories found online, written by creative fans looking to take the plot into their own hands.

Known as fan fiction, this sort of writing is a massive genre in of itself – one that spans the entirety of the literary spectrum. Even some of the most popular works that sell millions of copies worldwide started off as works of fan fiction before being shaped into their current form.

Because fan fiction uses elements of another person's creation, it is a tricky subject when it comes to Australian copyright law. Let's examine some considerations for writers of these types of stories.

An author's moral rights

One of the protections granted to the creator of a work in the Copyright Act 1968 is the idea of moral rights. While these protect an author's right of attribution, they also serve to protect the author's integrity. This means that someone who treats that writer's work in a derogatory way will be infringing on their moral rights.

If your fan fiction treats an author's work in a derogatory way, you could be infringing their moral rights.
If your fan fiction treats an author's work in a derogatory way, you could be infringing their moral rights.

This is particularly pertinent for fan fiction writers, as there is a risk of putting an original author's characters in situations that meet this standard for infringement.

An author's trade marks

Tread carefully: A character's name may also be protected by trade mark law.

It's important to remember that copyright in Australia protects the manifestation of an idea, not the idea itself. As such, the name of a character is not protected by copyright; however, it can be registered as a trade mark. This is the case for a number of works, especially those that build up a successful commercial enterprise outside of the books themselves.

In these cases, using a name that is also a trade mark in a piece of fan fiction is inherently risky and likely to be considered infringement.

What about fair dealing exceptions?

In Australia, fan fiction is most likely to fall under certain fair dealing provisions if it is written as criticism, review or satire. It is important to keep in mind that these exceptions are not blanket permission for writers to put pen to paper.

A fair dealing claim would have to stand up in court, showing that a fan fiction author is legitimately using the original work for one of those cases and that doing so does not cause commercial harm to the rights holder.

If you're writing fan fiction, be sure to keep these considerations in mind. Most importantly, do not try to sell your stories. That's a great way to guarantee copyright infringement.