Ziye Xiong

Faculty of Law, Jiangxi University of Finance and Economics, Nanchang, Jiangxi, 331100, China

Keywords: Fan Fiction, Copyright, Fair Use, Role Copyright.

Abstract: Since the 1990s, the popularity of Internet technology has promoted the rise of Fan Fiction creation platform,

but Fan Fiction, based on the characteristics of original works, have been in the gray area of copyright disputes

for a long time. This article focuses on non-deductive Fan literature works and conducts research on their

infringement determination and fair use issues. Research suggests that in the determination of infringement,

the copyright ability of virtual characters needs to be analyzed through each case study based on the “idea-

expression dichotomy”. The determination of substantial similarity requires a comprehensive analysis of

overall perception and elements. In the defense of fair use, the theory of “transformative use” and market

substitution evaluation are key. Fan Fictions can enhance their transformability, while their non-profit and

cultural dissemination functions reduce market substitution risks, and it is not simply judged by whether they

constitute fair use based on profitability or not. The conclusion points out that the existing law lacks clear

provisions on the boundaries of role copyright and fair use standards. In the future, it is necessary to clarify

the scope of protection of virtual roles in legislation and improve the system of fair use.

1 INTRODUCTION

Since the 1990s, with the continuous development of

the Internet and the growth and maturity of online

communities, the co-creation platform represented by

AO3 (Archive of Our Own) and Lofter has

constructed a new creation ecology of online

literature. The popularization of social media and We

media tools makes “user-generated content (UGC)”

break through the traditional publishing barriers, and

a large number of fellow enthusiasts gather on the

platform and communicate in real time. This

“participatory culture” reconstructs the subjectivity

of literary creation, brings about the rise of co-literary

works, and also brings about a series of copyright

problems due to its particularity based on the original

works (Jenkins, 2016).

There are obvious gaps in the current legal

regulation of fan fictions.

On the one hand, the existing laws and regulations

do not clarify the legal status of the fan fiction, and

the characteristics of the fan fiction based on the

original work make them stay in the gray area for a

long time, resulting in long-term disputes over the

legality and infringement of the characters and plots

of the original work.

On the other hand, the law lacks a clear definition

of the boundary between the rights of the original

author and the fan author, and the ambiguity of the

law leads to an increase in the cost of rights

protection. A large number of fan literature works are

likely to harm the legitimate rights and interests of the

original author, while fan authors also face the

dilemma of unclear infringement boundaries, causing

them to worry about whether their creative behavior

is legal and, to some extent, suppressing their creative

enthusiasm.

This article mainly focuses on the issue of

infringement determination and fair use of fan fiction.

2 THE DEFINITION AND

CLASSIFICATION OF FAN

FICTION AND THEIR DISPUTE

2.1 Definition of Concepts

Fan fiction originates in Japan, where the anime

culture is prosperous, and includes various forms

such as paintings, novels and videos. As an imported

word, its conceptual definition has not formed a

unified standard. Generally speaking, it is defined as

336

Xiong, Z.

DOI: 10.5220/0014374300004859

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Politics, Law, and Social Science (ICPLSS 2025), pages 336-341

ISBN: 978-989-758-785-6

a form of creation that is not influenced by

commercial factors, does not aim for profit, and uses

the original as the basis for secondary creation.

The fan fiction works discussed in this article are

one of the main forms of expression of fan fiction, and

their core feature is that they are secondary creations

based on original elements (characters, background,

plot), mainly non-profit.

2.2 Classification

According to the different themes and types reflected

in the relationship between fan fiction and the original

works, the author thinks that they can be mainly

divided into deductive fan fiction and non-deductive

fan fiction.

2.2.1 Deductive Fan Fiction

Such works are rewritten or continued with the

original as the blueprint, such as writing a new ending

for a classical novel and supplementing the branch

plot that has not been expanded in the original work.

The most typical example is Gao E's continuation of

The Story of the Stone (Wang, 2017). Due to the

direct use of the narration structure and character

relationship of the original work, it is usually

recognized as constituting an adoption of the work's

protected expression under copyright doctrine, rather

than mere utilization of abstract ideas, and is more

likely to be recognized as infringing upon the

authorization of the original author (Wang, 2017).

2.2.2 Non-Deductive Fan Fiction

Such works usually only borrow the original

characters or background settings, creating new

content outside the original story framework, such as

the case of Jin Yong v. Jiangnan's “The Youth Here”.

2.3 Legal Dispute

The legal disputes over such works mainly focus on

whether the original virtual characters are protected.

The academic community generally believes that

simply using character names and basic personalities

usually does not constitute infringement, but if a

character possesses unique characteristics (such as

special styling, classic lines), it may be considered a

protected expression of originality (Wang, 2017). The

problem lies precisely in the lack of clear legal

provisions regarding the copyright of virtual

characters and the reasonable limits of using character

characteristics, which may result in completely

opposite judgments in similar cases in different

regions. This also leads creators to rely on industry

conventions for self-restraint, making it difficult to

have accurate legal standards to guide them.

In summary, there is a basic consensus in the

academic community on the issue of infringement in

deductive fan fiction. This article mainly analyzes the

infringement issues in non deductive fan fiction and

elaborates on them from different perspectives.

3 DETERMINATION OF

IN FAN FICTION

3.1 Copyright of the Character

The biggest characteristic of fan fiction is that it often

utilizes original characters for new text creation.

Therefore, whether the use of virtual characters in the

original work constitutes infringement, the first step

is to determine whether the characters themselves

have copyright. Although the Copyright Law of the

People's Republic of China (hereinafter referred to as

the “Copyright Law”) does not explicitly protect

certain roles, it does not exclude them from the scope

of protection. Therefore, a case-by-case analysis

should be conducted for specific situations.

For this issue, scholars often refer to the testing

methods used in American judicial practice, namely

the “sufficient description standard” and the “story

standard” as criteria for determining the copyright-

ability of characters: the former requires that such

virtual characters are originally conceived and

presented sufficiently, while the latter requires that

the virtual character be the core component of the

story and cannot be separated from it (Wang, 2025).

The application of two standards in practice is

controversial: sufficient description has strong

subjectivity, uncertainty, and is easily misinterpreted

in practice, even surpassing the binary framework of

thought and expression; The story standards are often

considered too strict, requiring infringing works to be

almost entirely descriptive of the character and not

exhaustive, and cannot classify the “ virtual

character” itself as expression. Based on this, some

scholars further propose to distinguish between

character types, pointing out that stereotyped

characters should belong to the public domain due to

their lack of originality, while the use of original

characters that deeply integrate with the original plot

in fan works requires permission (Cong & Liu, 2021).

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The first case of Chinese fan fiction, Jin Yong v.

Jiangnan, is a typical case regarding whether utilizing

original characters constitutes infringement. In the

first instance, the court held that the use of characters

did not constitute copyright infringement (China

Intellectual Property News, 2018). However, the

court of second instance considered that although it is

difficult to identify a single character as the object of

and unique description in the development of the plot,

it may be protected by the copyright law (Chinese

In a word, the essence of role infringement is the

overlapping use of original expression, rather than

simply exploiting names or accumulating images,

which mainly depends on whether the role forms an

“original personality” through specific expression. In

other words, the copyrightability of characters is

possible, but it still needs to be analyzed in detail from

the aspects of character, character relationship, and

specific plot development.

The problem is that the current law does not

explicitly provide for this, and the two standards

proposed by the judicial practice of the United States

are somewhat vague: The former does not specify the

“sufficient” quantitative scale, while the latter may

exclude most roles from the scope of protection, and

it is difficult to fully prove the copyright-ability of

roles. Therefore, although these two standards have

certain reference significance, they still need to rely

on the discretion of judges in case analysis. On this

premise, the author believes that the determination of

role infringement still needs to return to the

“dichotomy of thought expression”.

3.2 Dichotomy of Thought Expression

According to the second paragraph of Article 9 of the

TRIPS Agreement, the dichotomy of thought and

expression has always been the basic principle for

judicial practice to define copyright infringement,

which emphasizes that copyright law only protects

the original expression of ideas, not the ideas

themselves. When applied to the analysis of

infringement of fun fiction, it is necessary to define

which elements of the original work used by fun

fiction belong to the idea and which elements belong

to the original expression.

As mentioned above, generally speaking, the use

of the original elements in fun fiction is mainly to

borrow a series of elements such as names,

relationships and so on, which are extended with the

role as the core. The question is how to define

whether the use of the relevant role belongs to thought

or expression, which is also an argument for the

Some scholars believe that if the character

centered plot in the original work is substantially

used, such as the continuation of the work, the new

plot is based on the plot of the original work, which

constitutes infringement; If only the symbolic use of

a simple character, rather than the use of similar

circumstances, it does not constitute infringement

(Wang, 2017).

That is to say, the role name, basic character tag,

and general character relationship (such as master

apprentice) belong to the ideological category, which

allows free use and is not protected, while the plot

with the role as the core, the “original personality”

formed through the specific plot and interactive

mode, should belong to the expression category, such

as the character judgment in The Story of the Stone,

which integrates the original author's unique

expression and thought projection, and should be

protected.

Some scholars have cited the first instance verdict

of the case of Jin Yong v. Jiangnan as an example,

stating that “if fan fiction only uses static elements

such as the names and personalities of original

characters, and does not involve complex

relationships or personalized plots of characters, it is

difficult for copyright law to determine its

infringement behaviour (Hu & He et al, 2019).” This

determination is reasonable, but it ignores that the

static elements, such as the character's name and

character, should be analyzed in a unified way

according to the principle of integrity. The character's

name, character, relationship, background and so on

shape a role, reflecting the choice of the original

author, forming an original and logical structure,

which should be identified as expression, which is

also the basis for the second instance of this case.

To sum up, symbolic and labeled elements such

as character names, basic relationships, and simple

characters should belong to the ideological level,

allowing co-creators to freely use them. However, if

the characters form a unique fate track, interaction

mode, or similar experience due to the development

of the plot, it may constitute an original expression,

and if their use reaches a substantial similarity, it will

constitute infringement, which can be defined with

the help of the story standard mentioned above to a

certain extent.

On the basis of the dichotomy of thought and

expression, it is necessary to judge whether the

borrowing of the original expression is substantially

similar to analyze whether it constitutes an

ICPLSS 2025 - International Conference on Politics, Law, and Social Science

338

infringement of expression, which will be discussed

in detail below.

3.3 Contact Plus Substantial Similarity

The dichotomy of thought and expression analyzes

the objects protected by the Copyright Law, and the

principle of contact plus substantive similarity

analyzes and judges whether the use of the original

expression in the fun fiction of the same person meets

the infringement standard.

Since fun fictions are based on the original works,

it can be assumed that they have the possibility of

contact. Instead of analyzing the judgment basis, it is

only necessary to judge the substantial similarity

standard.

There are three main ways to judge whether a

substantial similarity is formed: first, the external

standard, that is, text comparison, verifies the

similarity through sentence-by-paragraph

comparison. Second, the internal standards, the

overall perception, and the reading of successive

works are based on the impression of general readers

on the two works. Third, abstract standards,

constantly abstract out the traditional ideas and

distinguish the unprotected parts (Zecevic, 2006).

Some scholars also mentioned that the description

of the role in the original work should be a

combination of complex and diverse text narration,

plot arrangement, character relationship and other

elements. Only in this way can the continuous

description of the role in the fun fiction of the same

person be substantially similar (Cong & Liu, 2021).

Similarly, when the description of the original

characters in the fun fiction composes a combined

description of the various complex expression

elements of the original characters, it may constitute

substantial similarity and constitute infringement.

The author believes that in the existing standards,

the mechanical text comparison is easy to ignore the

value of secondary creation, and there are also rigid

limitations. The originality of literary roles is

precisely derived from the superposition of details

such as name, character, and behavioral logic. When

the works of the same person continue the intrinsic

behavior pattern and destiny of the original

characters, even if the text is not copied directly, it

may still constitute infringement. Therefore, single

standard should be abandoned and make a

comprehensive judgment from the two levels of

overall perception and element analysis. From the

perspective of general readers, readers can read and

judge whether the whole work forms a substantial

similarity with the original work and then make a

quantitative comparison between the specific

elements (such as the originality of plot transition, the

similarity of complex human and material relations,

etc.) and the original work.

Based on the above three entry points for judging

infringement: the copyright of the role, the dichotomy

of thought and expression, and the contact and

substantive similarity, the author believes that to

judge whether a literary work of the same person

constitutes infringement, firstly should analyze

whether the original role used by the author is

copyrightable, and then refer to the cases of “full

description standard” and “story standard” to

specifically analyze whether the description of the

role in the original work by the author of the original

work constitutes an original expression, and then

judge whether it constitutes a copy of the expression

according to the dichotomy of thought and

expression, and finally judge whether it constitutes a

substantive similarity. If infringement is constituted,

then it should be judged next whether there is a

defense of fair use in the creation of the co-creator

based on the original work.

3.4 Fair Use Defense

The fair use rule of the Copyright Law of China

mainly adopts the three-step test method and lists the

relevant matters. Obviously, the use of original works

in fun fictions is difficult to directly cover the

provisions of the law, so it should be analyzed

through specific cases.

A number of scholars have suggested that the

application of the fair use system can refer to the four-

element standard of the United States, which

specifically includes: the purpose and nature of use,

the nature of the work used, the quantity and quality

of use, and the impact on the market. Some scholars

have pointed out that from the perspective of the

purpose and nature of use, if fan fictions have non-

profit and strong conversion, they can be more

recognized as fair use; At the level of market impact,

attention should be paid to whether fan fictions may

be exempted if they do not substantially replace the

original work market (Zecevic, 2006).

On this basis, many scholars put forward the

theory of “transformative use” which can be used for

reference in American judicial practice. The theory of

“transformative use” is the deepening development of

the element of “the purpose of using works” in the

four-element standard.

Some scholars believe that, based on analyzing

the particularity of using original virtual characters in

fan fiction, two very important points are whether the

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purpose of using the work constitutes transformative

use and whether it has an impact on the potential

market or value of the original work (Cong & Liu,

2021). Some scholars have further proposed that

when secondary creative works are more

transformative, even if they have commercial

purposes, they can still constitute reasonable use

(Wang, 2006).

In terms of “transformative use”, it refers to

“adding new expression, meaning or information to

the original work for other purposes or different

properties to change the original work (Campbell v.

Acuff-Rose Music, 1990).” The birth of fan fiction is

based on fans' love for the original work, integrating

their own thoughts and expressions into the original

work, and reproducing the original work. The original

intention of fan fiction authors is not simply to imitate

or continue writing the original work, but to express

themselves through the original work and

communicate with other enthusiasts, which is a

manifestation of “transformative use”.

In terms of market alternatives, scholars generally

believe that this is the most important reason for the

reasonable use of fan works. Based on the unique

characteristics of their participatory culture, fan

literature creators not only do not have market

substitutability for the original work, but may even

promote the development of the original work in the

market in reverse. Therefore, it is generally not

considered to have a negative impact on the market or

value of the original work.

However, there is still some controversy

regarding the profitability of fan works. Although the

creation of fan works begins with the creator's love

for the original work, usually without commercial

purposes, and can be distinguished by readers, there

is also the possibility of seizing the market space of

the original work; Scholars usually advocate that non-

profit is more likely to constitute fair use (Sun & Li,

2020). However, with the development of the

Internet, a large number of works of colleagues in

reality make indirect profits through the network

platform, blurring the boundaries of “commerciality”.

It would be too harsh to deny the exemption of fair

use.

The author believes that on the basis of case

analysis, we should appropriately refer to the

"transformative use" theory, give priority to

evaluating the degree of conversion of the fun fiction,

such as whether to give new themes, introduce new

backgrounds, and give new role connotations, and

then analyze its market substitutability, review its

impact on the original derivative market, and avoid

excessive squeezing of the original creation space,

rather than simply determining whether it is profitable

to judge whether it constitutes a reasonable use.

4 CONCLUSION

With the vigorous development of Internet culture,

fun fictions, as a unique form of creation, not only

enriches cultural diversity, but also brings new

challenges to copyright law. This article reveals the

ambiguity and lag of the current legal framework in

addressing the issue of secondary creation by

analyzing the legal status, character copyright,

boundaries between ideas and expression, and

principles of fair use of fan fictions.

Although attempts have been made in judicial

practice to balance the interests of all parties through

individual discretion, the lack of unified legal

standards still leads to unclear boundaries of rights,

which may suppress creative enthusiasm and also

harm the legitimate rights and interests of the original

author. In the future, it is necessary to further clarify

the scope of copyright protection for virtual

characters at the legislative level, improve the

applicable standards of the fair use system, and

encourage the establishment of industry self-

discipline and diversified dispute resolution

mechanisms, in order to achieve a dynamic balance

between protecting originality and promoting

secondary creation, and provide a more inclusive

legal environment for cultural innovation in the

digital age.

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