itâs not copyright infringement or actionable in general for several reasons:
1. you arenât getting paid per story, you arenât selling your stories. having a ko-fi or whatever doesnât count because thatâs arguably only done to support SOMEONE rather than some specific thing. if you were to publish it into a book and sell the book, you might run into some issues there.Â
2. you have first amendment rights for freedom of expression which, in most cases, hold more importance than some copyright protections and rights of publicity.
youâre triggering the first amendment rights when your work is sufficiently transformative. thatâs to say: you havenât copied a film/book word for word as an absolute reproduction. if you add almost ANYTHING, it can be called transformative. you could genuinely just change the hair color of a character and it will likely be called transformative. fanfiction is very transformative then because the intention is play around with whatâs happened to a character or to give them some kind of story the original writers have not thought of.
3. there is something called âfair use.â in fair use, there are four factors to determine if it is a fair use of the copyrighted material. (1) what was the purpose of this use? has it been done for profit OR for criticism, for teaching, for parody, etc. (2) the nature of the copyrighted work. this gives works of fiction more rights to protection than nonfiction. (3) the proportion of the material youâve copied (4) the effect on the potential market for, or value of copyrighted work.Â
now, (1) this is not done for profit. itâs done, BY LARGE, for artistic expression. which is allowed, again, if itâs transformative and if you can show your profit is either very low in comparison to how much work you have or if you arenât profiting as a direct result of the stories. getting paid for being a cool person, which is what ko-fi arguably is, doesnât count. (2) okay, yeah, the nature of the material is fiction so its protections are higher. (3) again, if youâre transforming the work, you should be fine here. if youâre just using a character and their characteristics in work you are doing for artistic expression, youâre fine here. you are not copying or attempting to replace the original work. (4) there is little effect on the potential market of marvel movies as a result of you writing fan fiction. you are not depriving the copyright holders of income by writing fan fiction.Â
balancing this all out, with weight put especially on transformation of the original source material for noncommercial purposes, you should be fine. itâs most likely fair use.
4. most laws focus on commercial gain. copyright law, rights of publicity laws, trademark laws all have to do with how the person who has allegedly infringed these rights has unjustly profited. fan fiction writers have LITTLE to NO commercial gain. and if they do, it is usually not enough to make anyone throw a fit and sue or issue a cease and desist.Â
5. the court of public opinion is a real thing. corporations like disney need to uphold their reputations of âvaluingâ their consumers and youâre arguably showing appreciation by engaging in work like this, so it would look bad for them to go after you and they likely wonât. also, floodgates of litigation. how many people are they gonna sue? this is too widespread now. the courts would be overflowing with fan fiction cases which is⌠yeah, they donât want that.
6. all in all, because your work is transformative, you have little to no commercial gain, you are not depriving marvel of income as a result of your work, you are not attempting to substitute your own work in place of theirs, and because fan fic can actually operate as an advertisement/promotion of the original work: you are absolutely fine legally. it is a gray area when it comes to case precedent but it is doubtful anyone will come after you in any way.
