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Q: If I write a fanfic of original content and private messaged to a friend instead of posting it online, is it still an infringement of copyright?

I’m new to writing and I think my fanfic is too close to the original, and a lot of it is simply copying, so I don’t want to post it online. However, I still want to show it to a few of my friends and get their opinion about it.

A:

The bottom line is this: if none of the copyright owners have any way of even knowing that you created the work, there’s no way they can know to enforce anything against you. In addition, such a private use of a work almost certainly (never say never) is fair use. Let’s look at the factors for fair use:

  1. The purpose and character of your use.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion taken.
  4. The effect of the use upon the potential market.

As an exercise to help you get a feel for these factors, I did an example analysis below. THIS IS IN NO WAY LEGAL ADVICE. Don’t get legal advice from Quora, that’s a stupid thing to do. Talk to a lawyer.

To the first point, you’re creating the work for personal use only. This likely weighs in favor of fair use.

To the second point, your work is a creative work and there are many different ways of expressing the same ideas (the opposite being a factual or scholarly work where there’s a very clear idea that is being conveyed, thus limiting the number of ways that idea can be expressed). This likely weighs against fair use.

To the third point, only you know the answer to this. But if you’re creating fan fiction, it likely you’re borrowing characters and creating new storylines within the universe of the work you’re basing yours on. This factor likely weighs against fair use.

To the fourth point, since you’re sending your work to friends, you stand to gain nothing from the work, and you’re doing this just for fun, the effect of your use is likely zero. This weighs heavily in favor of fair use.

Given the first and fourth points, it would appear you would be protected by fair use, but always be aware that simply being “right” doesn’t mean you’re immune from a lawsuit. A good faith lawsuit could still be filed against you if you, for example, posted your fanfic online and tried to profit from it. Be careful out there!