[Resource of the Day] – What the Law Says About Fan Fiction
Article: Friction Over Fan Fiction: Is This Burgeoning Art Form Legal?
by Grace Westcott
Source: Literary Review of Canada Online
Unlike a lot of folks in the comic book industry, I’ve never been a big fan of fan fiction — writings by fans that take place in an established universe with established characters. But I’m not necessarily sympathetic to the views of fantasy and sci-fi authors who have railed against fanfiction (such as this passionate essay from Raymond E. Feist). No, my beef with fanfiction is that it’s creatively lazy; it involves taking someone else’s characters and ideas and using them to create a derivative work. It’s hard to grow as a writer when you’re simply imitating the work of others, and it’s even harder to grow when you refuse to create ideas of your own. It’s one thing for children to include Spongebob Squarepants and Pikachu in stories they write, because they’re still learning the basic skills needed to create a story. It’s quite another thing for an adult to write a slash fic featuring Sirius Black and Severus Snape engaging in a bondage-themed tryst.
I suppose that one might argue that the folks currently writing Batman, Superman and Spider-Man are writing professional fanfiction, and that by my reckoning, they’re being creatively lazy too. I suppose that case could be made, but the difference is that those folks are getting paid for their work, by the people who currently own the copyright. The work has to be of a certain quality, and one it’s published, it becomes a part of the “canon” of the story. As such, I don’t have a problem with professionals picking up gigs to write established characters. I would, however, have a problem with those same professionals spending their free time writing fanfics on the side.
But lest you think I’m anti-fanfic, let me assure you that I do think that there’s a time and a place for them… and that publishers are unwise to ban them entirely. With that said, I think it’d be wise to first look at the legality of fanfics, and then to talk about how a publisher can use them as a marketing opportunity…
The article I linked today discusses the legal issues surrounding fanfiction. Though it’s primarily from a Canadian point of view, the laws in the US and the UK are almost exactly the same, since all three countries have similar copyright laws.
When an author creates a story and puts it to paper, that work automatically becomes his or hers via copyright law. There are some stipulations, of course — the work has to be mostly original, and it is really the ideas (such as the characters, the unique plot, and a unique setting) that are entirely protected. There’s also quite a bit of gray area involved. For example, George Lucas can’t really copyright the idea of “droids,” since he didn’t invent the concept or the word that “droids” is derrived from. George Lucas does, however, own the copyright on the “Jedi Knights,” the “Sith,” and the “Death Star,” since these were all original concepts that he invented for his story. An author might be able to get away with having “droids” in his or her story. But having characters named Jeda that fought with holosabers using a mysterious energy called the Flow might be grounds for copyright infringement… unless the author can prove that he or she was writing a parody of the original work.
It’s complicated stuff, copyright law, and what makes it worse is that it’s really up to the copyright holder to enforce it, or else the copyright can actually be diminished. That’s one of the reason that authors and publishers have traditionally gone after fanfiction writers — if they don’t, and they continue to create stories that are in any way similar to the work of the fanfiction writers, they can actually be sued.
Granted, that doesn’t happen often. And I’d suggest that in this day and age, when the majority of jury members are going to be more media savvy than they were twenty or thirty years ago, a fanfic writer is going to have a very difficult time winning such a case. But then again, fanfiction is a lot more prevalent today than it used to be, thanks to the internet, and fanfic writers can be creating work for large, invisible audiences underneath the radar of the copyright holder. And while this is technically piracy, most authors don’t seem to mind, provided that the stories are clearly designated as fanfiction and the more explicit stuff is kept away from the kids.
And this is where my first problem comes in. There are fanfiction websites out there who are making money off the hosting of fanfic stories, and though they claim that they need to do so to cover the cost of bandwidth, I suspect that several of these sites are making more than they reveal. It is true that the largest site,Fanfiction.net, doesn’t run ads [CORRECTION - It does, I just didn't see them due to my ad blocking software], but I’ve seen many genre or title-specific sites that do.
My second problem is that this content is usually horribly written, with very little editing and a peer review process that seems to cheer people on for poor technique. These writers aren’t growing by posting up fanfics to an audience that devours anything having to do with a favorite property; in fact, they’re often stunting their growth creatively. It’s really hard to create good, likable characters, and it’s even harder to put those character in a good, likable story. By bypassing this process and using someone else’s creation to tell stories, these writers are not only not learning how to do the hard work, but they’re also often producing inferior work to the original that re-uses the same themes and ideas over and over.
My third problem is that fanfics aren’t regulated, and can’t be regulated, so you get the inevitable slash fics, which often feature bizarre sexual encounters between two or more male characters. This is a really strange scene, often written by women for women, and it’s prevalent in urban fiction, manga/anime, and television show fanfics. I realize that some people write it as a joke, but there are people who write this stuff for serious entertainment. I have a similar problem with the guys who hang around comic and anime conventions offering to draw female comic book and cartoon characters in lingerie or sexually explicit positions.
My fourth problem comes from the response of copyright holders who turn a blind eye to fanfiction because they don’t want to deal with the issue. The article linked above says that Gene Roddenberry ignored the Trekker fanfiction zines because he knew it was good for the fanbase. OK. But it would have been better if Roddenberry had acknowledged the zines, set some ground rules for the types of fanfiction allowed, and set up a free license for fans to write their own stories in the Trek universe if they followed his guidelines. This would this have made the content legitimate and allowed it to become something more than fanfiction — it would have become an expanded vision of his universe, for fans, by fans.
And it’s from my proposed solution to that fourth problem that I’m going to suggest something publishers should consider. In recent years, something called a “Creative Commons License” has evolved, which allows copyright holders to easily license their work to users for different purposes. (I’m going to be posting up an article about Creative Commons tomorrow, so stay tuned for that.) Creators can use a CCL to allow for legal fanfiction with established guidelines. They can also offer to host fanfiction on their own websites, under the stipulation that anyone who posts fanfiction waives the right to sue if there are similarities in upcoming volumes of the work down the road. A further stipulation might be that the characters from the work cannot be used in the fanfic; it has to feature original characters created by the fanfic community.
All of these things would help to not only allow fanfiction to legally exist, but to make it more creative and less objectionable. It would also allow the author to legally read over fanfics without the fear of being sued and to even license the best fanfic writers to create spinoff titles in the genre. This could be a wonderful marketing opportunity, since it would get the hardest core fans involved in a product, and it would certainly contribute to strong sales as a result.
Is this something I would try? It’d depend on the project. But I do hope to create something someday that will ultimately become a universe I can open up to my readers, much like H.P. Lovecraft did with his Cthulhu Mythos. After all, it’s one thing to create something that people want to read; it’s quite another to create something that they themselves wish they could write.
-SJJ
Resource of the Day | SeanJJordan | 
July 15, 2008 12:01 am
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By Katie, July 15, 2008 @ 2:42 pm
I don’t think you understand the culture behind fanfiction and fandom, Sean.
My whole life I’ve had absolutely no desire to create my own characters, much as some of my friends would go on and on about their “charries” they’d invented for some roleplay or another, or whatever “manga” they were writing. NaNoWriMo is a notable exception in my history of writing, but then again, I have never successfully hit the 50,000 word goal. Usually I average around 5,000, if even that. I don’t feel particularly guilty about leaving those not-novels unfinished, either; I have little attachment to the characters I’ve created.
It’s far more difficult to use someone else’s playground to write in. When you create your own world, you are its deity — you have ultimate control over the universe, its dynamics, the characters’ histories, what does and does not break the laws of physics/magic/etc., down to the tiniest details. If you screw something up, nobody holds it against you, either, because you can go back and rework it or explain it away with any old excuse.
If you’re writing in an established universe, you risk intense scorn and vicious mockery if you do anything to disgrace the canon of the source material. The characters, since they are so well known to everyone seeking out the story, have to be very much in-character, or it breaks the fourth wall and your writing get labelled “OOC.” You have to have extensive knowledge of the past events in the source material, especially if you deviate away from the main plot too much in an “alternate universe” sequence of events. If it’s not kept believable, you’re held accountable for it.
There will always be shitty fanfic authors who pair themselves up with their favorite characters, just as there will always be shitty romance novel writers who churn out the same cookie-cutter crap once a month. To write off an entire genre of masterfully told fiction as “creatively lazy” simply because the authors chose to harness an existing universe instead of making up Yet Another Sci-Fi or Fantasy Scenario is harsh and uncalled for.
Has there never been a series you wish hadn’t ended? Has there never been a scene you wish had played out different? Have you never found yourself craving more adventures or misadventures from your favorite set of characters? I find it difficult to believe you can’t relate to the motivation that drives the majority of fandom — a deep fondness for certain fictional characters. I’m not talking about nutcases who think they’ve married Sephiroth on the astral plane, either, but rather avid readers/gamers/what-have-you who have run out of official material to enjoy and desperately wish for another installment, and have to either take it into their own hands or seek it from others. Most series don’t have tons of spinoff novels and comic books to supplement the original, ala Star Wars or various superhero stories, and the more obscure the game or book, the more impossible it is to ever hope for something new from the creator(s).
To be able to sink into those worlds again, whether for a short, 300-word vignette or an engaging, 100,000-word epic, is a priceless feeling for those who’d give anything to experience the magic of a given story for the first time again. It’s not at all done out of laziness, but love for the source material.
Also, Fanfiction.net DOES run ads, for what it’s worth, and they’ve the bane of authors’ existence for a long time now. The AdBlocker works only occasionally, and paid accounts aren’t available anymore. LiveJournal has long since surpassed FFN as the place to operate.