Perspective | "Plagiarism" or "Recreation"? Legal Analysis of Copyright Infringement Issues in Fan Fiction
Published:
2025-02-24
In today's era of cultural diversity, fan fiction has carved out a niche in the field of online literature with its unique creative form and rich imagination, boasting a large community of creators and a substantial audience base. From fan stories derived from popular film and television IPs to new adventures of characters penned by anime enthusiasts, fan fiction has become an undeniable cultural phenomenon. However, due to its borrowing of elements such as original characters and plots, fan fiction inevitably becomes closely linked with copyright issues. There is ongoing debate in the legal and academic circles regarding whether fan fiction constitutes copyright infringement, and judicial decisions in practice vary. Against this backdrop, a thorough analysis of the copyright infringement issues surrounding fan fiction, clarifying the legal relationships involved, not only helps protect the legitimate rights and interests of copyright holders but also provides creative guidance for fan fiction creators, and is of significant importance for the healthy and orderly development of the cultural industry. This article will conduct an in-depth legal analysis of the copyright infringement issues related to fan fiction from multiple dimensions, including legal definitions, typical cases, and core points of contention.
I. Legal Definition of Fan Fiction and Copyright Law Framework
According to Article 10 of China's Copyright Law, copyright holders enjoy core rights such as adaptation rights, reproduction rights, and attribution rights. As a form of "secondary creation," fan fiction's core characteristic is the borrowing and reconstruction of characters, plots, or backgrounds from original works, which may involve infringement of the adaptation rights of the original work. In judicial practice, courts typically categorize fan works into two types:
1. Derivative Fan Fiction:Directly uses the core plot and character relationships of the original work, requiring authorization from the original author; otherwise, it constitutes infringement.
2. Original Fan Fiction:Only borrows character names or basic settings, independently creating new plots, which may evade infringement through the "idea and expression dichotomy."
The key legal controversy lies in: Whether character names and relationships constitute protected "expressions."For example, in the Jin Yong vs. Jiang Nan case, the court held that names like "Guo Jing" and "Huang Rong" do not possess originality when used alone, but the overall combination of character images may constitute a protected expression.
II. Typical Cases and Judicial Trends in the Past Five Years
(1) Beijing Region: Strict Protection of "Original Expression"
Boundaries of Fair Use:The Beijing Internet Court emphasized in the "Living Type" case that quotations must meet the standard of "appropriateness," and uses that exceed the necessary scope do not constitute fair use.
(2) Shanghai Region: Distinguishing "Expression" from "Idea"
The "Mogin School Officer" case (2017) :The Pudong Court determined that although the names of characters from "Ghost Blows Out the Light" were used, the independent plot design did not constitute copyright infringement; however, using movie posters for promotion constituted unfair competition, resulting in a compensation of 900,000 yuan. This case established the judicial principle that "character images must be combined with plots to constitute expression."
Exceptions to Fair Use:The Shanghai court proposed a "transformative use" standard in a short video infringement case, stating that secondary creations must provide new value to the original work; otherwise, it is difficult to escape the determination of infringement.
(3) Guangzhou Region: Focus on Maintaining Market Competition Order
The first-instance judgment of "The Youth of This Time" (2018) :Although the Tianhe Court denied copyright infringement, it recognized unfair competition on the grounds of "free-riding," creating a judicial path of "no infringement but requiring compensation." The final judgment strengthened copyright protection, reflecting a stricter judicial attitude.
The "Youth of This Time" case (2023 final judgment) :The Guangzhou Intellectual Property Court determined that the character images in the book constituted substantial use of Jin Yong's work expression, infringing on adaptation rights; at the same time, using the original work's popularity to attract readers constituted unfair competition, resulting in a compensation of 1.88 million yuan. The court creatively did not order the cessation of infringement but required a 30% royalty payment as compensation for reprints, balancing cultural dissemination and rights protection.
III. Analysis of Core Legal Controversies
1. The Boundary between Adaptation Rights and Fair Use
Adaptation rights require "retaining the basic expression of the original work." If fan fiction only borrows character names but reconstructs the plot (like "Mogin School Officer"), it may not constitute adaptation; however, if the character traits and relationships are highly consistent with the original work (like "The Youth of This Time"), it may infringe.
Fair use must meet the "three-step test": indicating the source, not affecting the normal use of the original work, and not harming the legitimate rights and interests of the rights holder. Non-profit fan creations may meet the criteria, but commercial use is often excluded.
2. Protection Levels of Character Elements
Individual Elements:Common names (like "Guo Jing") are difficult to protect, but fictional names (like "Nine Yin Manual") may be recognized as original expressions.
Combined Elements:Systematic borrowing of character images, traits, and relationships may constitute "holistic expression," as recognized by the court in the "Youth of This Time" case where the "Jin Yong Universe" is protected.
3. The Supplementary Role of Anti-Unfair Competition Law
When copyright law is difficult to cover, courts often invoke Article 2 of the "Anti-Unfair Competition Law" to combat "free-riding" behavior. In typical cases, even if copyright infringement does not occur, profiting from the original work's popularity may still be recognized as unfair competition.
IV. Theoretical Discrepancies in Academia and Legislative Suggestions
1. Support for Tolerance:Some scholars advocate for incorporating fan fiction into the copyright law framework, distinguishing between "non-profit creation" and "commercial use," with the former applicable to fair use and the latter requiring sharing of profits with the original author.
2. Strict Protection:Practitioners often emphasize the "contact + substantial similarity" principle, arguing that fan creations essentially rely on the value of the original work and should prioritize the rights of the original author.
3. Compromise Path:It is suggested to establish a "tacit licensing" system, allowing original rights holders to declare openness or restrictions on fan creations, and to explore copyright trading platforms to facilitate licensing.
V. Practical Suggestions and Future Outlook
1. From the Creator's Perspective:
Avoid directly copying character relationships and core plots, focusing on reconstructing the worldview;
Obtain authorization before commercialization, or reduce risks through "open source agreements" (like Creative Commons).
2. From the Legislative and Judicial Perspective:
The Supreme People's Court could issue guiding cases to clarify the standards for "character image protection";
Revise the "Copyright Law Implementation Regulations" to add exceptions for fan creations.
3. From the Industry Collaboration Perspective:
Promote the establishment of a registration and authorization platform for fan works to facilitate the sharing of benefits between original works and secondary creations.
Conclusion
The legal disputes surrounding fan fiction essentially represent a challenging balance between cultural innovation and rights protection. In the past five years, judicial practice has shown that courts in our country have gradually shifted from "lenient tolerance" to "strict protection," particularly strengthening the maintenance of character groups and market competition order. In the future, it is necessary to refine legislation, promote industry self-governance, and draw on international experiences to construct a regulatory system that can both encourage creation and protect the rights of original creators, thereby promoting the healthy development of the cultural industry ecosystem.
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