I have only finished writing the first draft of my first novel so I'm nowhere near considering the legal side of writing yet but I'm curious, so if you don't mind me asking I got two questions:
1) Do laws forbidding writers from reading fanfic of their work go over to other mediums, like visual novels for example? Or let's say I wrote a script and was lucky enough to get it produced as an animated short, would these laws still pertain to it? Or do stories outside the written medium have a completely different set of laws pertaining to them?
2) If an author writes a standalone and reads fanfic of said standalone, then goes on to write a series completely separate from their previous work with a different world and cast can the fanfic author still sue if they detect similarities? Even if their fanfic is attached to a completely different story?
Sorry if these questions are weird and rambly, it's 1 AM over here.
Let me clarify this. These aren't laws that I've been following: they're self-designed rules, based on the current legal realities obtaining in the markets where my IP is known and on offer.
Re 1): Written or not written—drawn, sung, or performed as interpretive dance for all I care—work created with consent in one's own universe must have come about with underlying binding written agreements in place. Without such agreements existing, viewing work in any format that's based in one's own universe will inevitably expose one legally. If I write a graphic novel and people write fanfic based on it, I will not read their fanfic because it could expose me legally to claims that further work done in my IP was based on their fic. Ditto if I write a script and it gets produced, and people see it and write fanfic about it, I won't read that fanfic either. The medium doesn't matter.
Re 2): If I write what for the time being is a standalone novel and read fanfic based on it, and then write a completely different series per your description, can a fanfic author still sue me if they detect similarities? Even if their fanfic is attached to a completely different story?
Well, if they've got the money, and depending on where they're located (for national laws differ), sure they can. The suit may well be sourced in confusion, or malice, or both, but they can. And the suit may in due time be lost or thrown out of court for being frivolous, but no matter how the cards fall, it's going to wind up costing you, the writer, a fair bit of money to get shut of it. A year's worth of your earnings? Two years' worth? Five? And what will be left of your career at that point?
The whole situation is better avoided by not reading any fanfic based on your work. In any format. Any time, any place. Period.
What's workable, and legal, and safe, is the following approach to derivative works from the IP owner's point of view.
Let's say that (for example) a producer or playwright approaches me and wants to adapt So You Want To Be A Wizard as a stage play. If that happens I have them get in touch with my agent, my agent proposes a license fee for allowing them to do this, and draws up a contract with that person essentially stating that they have my permission to adapt my book. Once that contract's in force (meaning it's been signed and money's changed hands), it's perfectly safe for me to look at those people's material written in my universe, because we're both bound by a concrete agreement on how the creative process will go forward and how the results will be used.
Or alternately: Let's say that some writers I know think it would be fun to write Young Wizards stories, and when I hear about this, I say "Okay, let's do a YW anthology." And I talk it over with my agent and then we call in a crowd of writers whose talents I trust and whom I think would be interested in taking part. Those interested all sign contracts with me that say they've got my permission to create those works using my IP / in my universe, and to get paid for them. My side of those contracts stipulates (as seems fair) that, if they invent something particularly cool while working in my universe, I retain the right to use and expand on that concept or language at a later date if I like. (If they have a problem with that, that's their call: they don't have to sign the contract or be in the anthology.) And I can obviously now read all this work and have it, legally speaking, be perfectly safe for me.
But let's try looking at the situation from a different direction. I open my ask box one morning and find that someone's stuffed the idea for a Young Wizards short story into it, also saying, "And I'd like to publish this as fanfic, if it's okay with you." Without an agreement in place, without my permission, this person has forced me to look at material which potentially infringes my copyright. But that doesn't matter in terms of my immediate legal options, because fanfic is also conditionally protected by copyright. (This is a complex situation, but this article deals with some of it, and links to more discussion.)
My first urge is to simply delete the thing and pretend I never saw it. But unfortunately Tumblr's records of my web accesses will now contain proof that someone logging into my account, from my computer (or iPad, or phone...) has opened and viewed that ask. Should I ever wind up in court with this person, their lawyers will have demanded that data from Tumblr and will use it to prove that I had access to their client's idea.
So now—assuming they've actually gone ahead and done this writing and publishing—I have to get hold of my lawyer and have them contact Tumblr and get that person's identity and contact info from them, so that they can be sent a cease-and-desist letter. I hate having to do this, but evidence that you have not been defending your copyright can be used against you.
Now let me be blunt. Like most writers, I'm not wealthy. And the simple business described in the paragraph above could cost me a month's income or more in billings from the lawyer. What am I supposed to eat, next month, while I'm trying to write? ...It's a good thing I like ramen.
...Though if I was wealthy, things could get much worse.
Let's say that in an access of utter pre-caffeine idiocy, and a weary desire to be nice to a clueless innocent, I just tell that person in the ask box, "Okay, fine, knock yourself out... just don't make money from it and don't do it where I'll see it." And they say "Of course, I'd never want to cause you trouble, your fiction has meant so much to me..." And then some kind of gloriously indescribable series of events occurs that somehow or other raises the Young Wizards series' profile way higher than it is at the moment, and makes its originator even a little bit rich and famous.*
...And a year or two or five later, in these increasingly litigious times, that person from the ask box who was so nice and said they'd never want to cause me trouble... suddenly starts having second thoughts. ...After all, I've got all this money now, and without their contribution, maybe it would never have happened, right? Don't they have a right to some of that? It's only fair!
You can just hear the thought processes, because we've seen this play out elsewhere before now. "Come on, she'll never miss it. She's probably got a castle in Ireland with solid gold toilets by now. She's got a TV series in the works, and when that comes out she'll have lots more money. She'll never miss a few thousand [ / few tens of thousands / few hundred thousand...] out of that!" And shortly they're on the phone to some lawyers, and the tabloids, and Variety and The Hollywood Reporter, with claims that the Young Wizards series in the works is based on their idea. In fact, they can prove I not only read it, I gave them permission to write in my universe!
...And suddenly Hulu/HBO/RandoStartupStreamingNetwork has stopped taking my agent's calls.
(sigh) So, as I said above: just don't read fanfic based in your own universe, mmkay? You'll thank me later.
*Without the universe's originator then suffering some kind of toxic ethical shift after the fact. (shrug) Stranger things have happened.
