In Twilight's Shadow: fan fiction and the legal “grey” area:

What Is Fan Fiction?

Fan fiction is fiction written by fans using elements of an existing work, from the characters, settings, premises or storylines. It ranges from stories that fill gaps in the original to alternate-universe tales, crossovers, and gender-swapped retellings. Legally, where a work falls on this spectrum matters: the closer it remains to the source’s protected expression, the more obvious the copyright issue. As commentators have noted, fan fiction occupies a legal grey area internationally, with outcomes depending heavily on jurisdiction and facts.

How Copyright Applies in South Africa

Under the Copyright Act 98 of 1978 (“the Act”), copyright subsists automatically in original literary works. It protects expression rather than ideas, so while a general premise like “star-crossed lovers” belongs to no one, the particular characters, dialogue, settings and storyline used to bring that premise to life may attract protection. The rights most relevant to fan fiction are reproduction and adaptation. “Adaptation” includes converting a work from one form to another and making versions conveyed by pictures, which means a story recasting an existing fictional world may engage this right even if written entirely in new words.
The fan fiction author owns copyright in their original contribution: the new sentences, scenes and plot choices they create. That ownership, however, is qualified by the underlying rights in the source material. Without the original copyright owner’s permission or another legal basis such as fair dealing, the fan fiction author cannot safely exploit the new work.

Fair Dealing: A Narrow Defence

Section 12(1) of the Act permits fair dealing for specified purposes: research, private study, personal use, criticism, review and reporting current events. This is a closed list. Fan fiction rarely fits: it is usually a creative work rather than research, criticism, or news reporting. Writing solely for personal enjoyment might conceivably qualify, but that argument becomes tenuous once a story is published online.
The contrast with the United States is instructive. US fair use considers the purpose and character of the use (including whether it is transformative), the nature of the copyrighted work, the amount used and the market effect. US courts have sometimes found transformative fan works to be fair use, giving fan fiction more breathing room. South African fair dealing, as confirmed in Moneyweb (Pty) Ltd v Media24 Ltd ¹, is not an open-ended balancing exercise: the use must fall within a specified statutory purpose and be objectively fair.

This may change once the Copyright Amendment Bill (B13-2017) is signed into law and promulgated. It would introduce a broader fair use defence through proposed section 12A, modelled on the US approach. Until it commences, the operative law remains the Act as previously amended.

Commercial vs Non-Commercial Use

Infringement does not depend on whether the writer earns money; section 23(1) can be engaged even where a story is posted for free. Non-commercial use may, however, affect remedies. Criminal provisions and enhanced civil remedies under sections 24(1) and 24(3)(b) presuppose commercial dealing, while a damages claim under section 24(2) requires proof that the infringer knew of the copyright. An interdict remains available regardless. In practice, commercialisation often triggers enforcement, which is why works like Fifty Shades of Grey had to be extensively reworked before commercial publication.

Moral Rights

Section 20 of the Act recognises moral rights, including the right of paternity (to be identified as the author) and the right of integrity (to object to distortion, mutilation or modification prejudicial to the author’s honour or reputation). These rights are personal to the author and exist independently of economic rights. Even if a copyright owner tolerates fan fiction, a moral rights issue could arise if a story portrays a beloved character in a deeply offensive manner. Moral rights cannot be assigned, although they can be waived.

Practical Guidance

• Know the rights holder’s stance. Some authors encourage fan fiction; others are protective. Research before posting.
• Check the public domain. Copyright in literary works generally lasts 50 years from the author’s death (section 3(2)(a)); other categories have different terms. Expired rights may ordinarily be adapted freely.
• Keep it non-commercial. This does not eliminate infringement, but it reduces the likelihood of enforcement and limits available remedies.
• Add originality. The more a work departs from the source through new plots, characters and settings, the stronger the argument for independent expression.
• Respect moral rights. Avoid portrayals that could reasonably be considered prejudicial to the author’s honour or reputation.
• If in doubt, seek permission. For commercial use or works very close to the source, approaching the rights holder is the safest course.

Conclusion

Fan fiction is a vibrant form of creative expression, but under South African law it occupies an uncomfortable legal space where the fair dealing defence offers little shelter. Writers should understand the boundaries, tread carefully around commercial exploitation and respect both the economic and moral rights of original creators. The law need not stifle creativity, understanding it helps writers navigate the grey area between inspiration and infringement.
If you need assistance with your copyright matter, please contact Eversheds Sutherland.

¹ Moneyweb (Pty) Limited v Media 24 Limited and Another (31575/2013) [2016] ZAGPJHC 81; [2016] 3 All SA 193 (GJ); 2016 (4) SA 591 (GJ); 2016 BIP 326 (GJ) (5 May 2016).