Does fanfiction violate copyright?

One example of a successful fanfiction is Fifty Shades of Grey by E.L. James. Fifty Shades of Grey began as a fanfiction of the popular movie series Twilight originally titled Master of The Universe, which was uploaded to a fanfiction site called Fanfiction.net. The main characters of Master of The Universe, Christian and Ana, are adapted from Edward Cullen and Bella Swan. However, because the fanfiction was going to be published as a novel, James has to make changes to the story so that it doesn’t violate copyright.

Basically, there is still no regulation that specifically regulates fanfiction. However, if we dig deeper, fanfiction can be categorised as a derivative work, which comes in the form of adaptation or transformation. It is called a derivative work because every fanfiction is derived from existing works. However, both the original creation and the adaptation or transformation are legally protected independently by Law Number 28 Year 2014 concerning Copyright (Copyright Law) without taking away protection to the original creator or rights holder.

How Copyright Law protection works on derivative works?

Article 40 paragraph (1) point n of the Copyright Law stipulates that derivative works in the form of adaptation and transformation are among the objects of the law.

Adaptation means conversing the original work to another format, such as books to novels. Meanwhile, transformation means making a new work based on the raw data contained in the original work, such as transforming a pop song into a dangdut song.

Feri Sulianta in his book Seri Referensi Praktis: Konten Internet stated that for a derivative work to obtain protection, the said work must contain sufficient distinguishable elements and a specific amount of new content or materials. Therefore, adding a small element of original work can’t be categorised as a derivative work.

In derivative works, the protected element is the new materials which resulted from the creator’s creativity and characteristics.

Limit in derivative works

The creation of a derivative work made by another party is permitted as long as the work is not used for illegal purposes. In the context of the Copyright Law, breaking the law means violating the economic rights and/or moral rights of the original creator or rights holder. However, everything comes back to the original creator or rights holder; they may still against the derivative work if it is deemed harmful to them even though the work is not used to gain profit (the moral rights of the creator). For example, fanfiction in the anti-fic genre.

Article 44 paragraph (1) of the Copyright Law stipulates:

The use, retrieval, multiplication, and/or alteration of a work and/or products related rights in all or a substantial portion is not considered a violation of Copyright if the source is mentioned or included in full for the purposes of:

education, research, scientific writing, report writing, criticism or review of an issue with no harm to the legitimate interest of the Creator or the Copyright Holder;
security and governance, legislative, and judicial;
lectures only for the purposes of education and science; or
performances that are free of charge with the provisions that they do not harm the legitimate interest of the Creator.

Basically, fanfiction is created as a form of fans’ appreciation for a creation. Fanfiction is also a creative medium for fans who are not satisfied with a work without the intention of overriding the hard work of the original creator. Fanfiction doesn't always mean plagiarism because obviously these two things are different.

Both fanfiction and plagiarism can be illegal if they are used to gain profit without having the licence or consent of the original creator or rights holder. For example, selling illustrated works, making merchandise, or selling certain characters from a protected work without permission is not allowed because it can harm the original creator or rights holder from an economic point of view. Those activities must be permitted by the original creator.

Article 1 point 20 of the Copyright Law explains that licences are written permission granted by the Copyright Holder or related rights owner to another party to carry out the economic rights over their work or product related rights under certain conditions.

Another example is when someone uploads a fanfiction in the form of adapted story to a website. There will be no problem as long as the fanfiction is not used to make profit. However, if the fanfiction is to be published as a novel or film, changes must be made, like what E.L. James did before publishing Fifty Shades of Grey. Anyone who violates this provision is subject to criminal charges as stipulated in the Copyright Law.

Is it okay to license fanfiction?

This depends on the content of the licence agreement with the original creator or rights holder. The licensee has no right other than those granted by the licensor. The original creator, even though they have given their permission, still does not lose the rights to and control over their creation.

Article 82 of the Copyright Law states:

Licence Agreement shall not contain provisions that result in loss for the Indonesian economy;
The content of the Licence Agreement shall not contradict the provisions of legislations; and
The Licence Agreement shall not be used as a means to eliminate or take over all rights of the Creator to their work.