ABSTRACT
Copyright protects the text that is, the expression of a work of fiction, and under certain conditions may protect characters within the work. Fanfic rarely infringes by direct imitation of the work; that would defeat the purpose of fanfic. Instead, fanfic takes familiar story elements and combines them in unfamiliar ways. Doing so may nonetheless violate the copyright in the original work if the new work is a derivative work, because the copyright owner has the sole right to control the making and distribution of derivative works. The second sentence provides the additional information that a work can be derivative even though it is 'an original work of authorship' that is, even though the secondary work itself would otherwise be eligible for copyright protection under 17 USC. 102. It is this second sentence that most greatly expands the potential scope of the derivative works right, as far as fanfic and other fan works are concerned.
