Fanfiction and Copyright
Fanfiction is illegal.
There is no gray area. It is derivative works made from source material that you have not obtained the right to make. It is not a parody. It is not fair use. Making a profit or not does not play a huge part in it. It is copyright infringement, plain and simple, and that is an illegal activity.
Whether it is immoral or unethical is up to the individual.
I wrote fanfiction for several years. Even now, I dabble on occasion. But not once, in all those years, did I delude myself into thinking what I was doing was legal and My Right. No. Lord of the Rings and all the characters spawned in that world belong to the Tolkien estate, and if they had wanted to shut me down, they had every legal right to do so.
Just because some authors choose to ignore fanfiction, and others choose to encourage it, does not mean it’s legal or that those authors who don’t want fanfiction of their world have no right to express that opinion. Now, they should express it in a concise and professional manner, but that’s neither here nor there.
But it is illegal.
I’m not sure how I’d feel if someone (as unlikely as that is) took my characters and started writing with them. I’d like to say I’d be flattered and have a huge grin on my face that someone was inspired by my worlds and my characters, but when I really think about it, I now find myself somewhat unsure. How would I feel if someone did an mpreg with Keegan and Nahele? Or a hurt-comfort fic with Tavish? Or rape fic with Aric? My knee-jerk reaction is I wouldn’t like it and would want it to go away because those characters would never BE in those situations and I feel it detracts from what my purpose with them is. However, as it has been pointed out, once you put something out to the public, what they do with it — how they react to it — is out of your hands.
Still, I’d be entitled to say that people shouldn’t write fanfiction with my characters because it upsets me and have the request be respected. This… sense of entitlement from fanficcers really rubs me wrong because I, when I wrote fanfiction, never felt that way. I knew I was playing in someone else’s sandbox and they had every right to send me packing back to my own.
I also think fanfiction is detrimental to pro-fiction in many ways, but that’s a topic for another day.
In the end, there is no legal gray area. Morally and ethically, yes, there is gray in abundance, but not legally. An unauthorized derivative work is breaking the law, and the owner of the work you’ve hijacked has every right to be pissed about, as well as take whatever action the law permits.
And Creative Commons has no precedent of dealing with infringement on a CC piece of work. Just because Jim Butcher has decided it’s easier to use a CC license than to waste money on a lawyer to track down those writing derivative works of his does NOT make fanfiction a legal activity as a whole. People need to stop assuming just because some authors allow fanfiction, all authors should allow it. Right or wrong, the author is the owner of that copyright and can do as they please with it. I also, personally, believe that CC is a bunch of BS that does nothing to actually protect a creator of anything, but that’s me and my thoughts.
Bottom line is, copyright is copyright, and an author owns the intellectual property and has every right to do with it as they please, be it for good or ill.