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Originally Posted by Worldwalker
The legality of fanfic varies -- some rights owners explicitly permit it, some seek to destroy it, and the majority choose to overlook it. I would guess that the latter realize that the writers of fanfic are their greatest fans, evangelists, and buyers, and any loss that may be attributed to their writing is a drop in the bucket compared to the corresponding gains from their evangelizing. But with the exception of those cases where the rights owners specify that they permit fanfic (and in those cases, in the circumstances they permit), fan fiction is technically illegal.
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That's unclear. There's not enough legal precedent to say "fanfic is illegal if not specifically permitted." There are certainly plenty of cases where use of an artistic work wasn't permitted, and was still ruled legal.
In the commercial world,
The Wind Done Gone was ruled non-infringing (or "not likely to be infringing," at which point the lawsuit was dropped); the sequel to
Catcher in the Rye was ruled infringing in the US. No lawsuit against non-commercial fanfic has even been filed, as far as I know, much less ruled on. The line between "mere derivative," which is infringement, and "transformative work," which falls within the boundaries of fair use, is blurry, and there's almost nothing in case law to give fanfic authors an idea of where they stand if the originators object.
However, parody is fair use, and a lot of fanfic can be argued as parody... the idea of "Harry and Draco grow up and marry each other" gets a laugh out of a lot of Potter fans. And some of the rest works out to literary commentary in fiction instead of essay format--a way of sharing the idea "here's what's fascinating about this character" or "allow me to showcase the motives and small details that led up to the major plot point activities." And the "what if" stories are explorations of possibilities--again, a form of critique or exploration of the original ideas, which are certainly permitted if they're structured as essays.
(examples, examples... hmm...)
A Very Malfoy Christmas, by Arineat
Wolf at the Door, by prettybird (For those who don't know, Damian is the 5th Robin, and Bruce Wayne's biological son.)
Oil and Water, by silverraven
Quote:
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With a very few exceptions (does it surprise anyone that Anne Rice is one of them?), most rights owners now have something of a "don't ask, don't tell" attitude
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Fanlore has a list of
authors' policies on fanfic; it's necessarily incomplete; many of the objections are based on the false assumption that an author who doesn't vigorously defend copyrights from all unauthorized uses will lose those protections. Some of us suspect advice from corporate lawyers who aren't used to dealing with the differences between trademark and copyright.