Dear Fandom: Could You Please Stop Saying That?

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Title: Dear Fandom: Could You Please Stop Saying That?
Creator: Cesperanza
Date(s): May 17, 2007
Medium: online
Fandom: all
Topic: fanworks
External Links: here, Archived version
Click here for related articles on Fanlore.

In May 2007, Cesperanza posted an open letter to her Live Journal page about the legality of fanworks.

When this was first posted, FanLib had just been announced and Cesperanza's post, and the resulting comments, reflect that, as well as many, many other things that preceded the creation of AO3 and the OTW.

astolat's An Archive Of One's Own post calling for the creation of a new non-profit multifandom all-ratings fanfic archive was posted a few hours later and linked back to Cesperanza's open letter.

The Comments

Cesperanza's post generated 247 comments.

Some Topics Discussed

The Original Post

This is really just an expansion of a comment I just made in astridv's LJ, but it's been something I've been meaning to say for a while, now. It's coming up in the context of the the FanLib discussion [see her footnote at bottom], but it comes up pretty regularly in one fannish forum or another, and I actually have two free brain cells to rub together this morning, so here goes.

I keep hearing fans say that they themselves think fanfiction is an illegal/infringing activity, and I don't think that it is. There's been no legal ruling that says that it is (and in fact, quite the opposite: whenever unauthorized literary rewrites or retellings have gone to court, they've been declared transformative, and these were for-profit works, not even our not-for-profit pleasure zone.) I think when/if fanfiction goes to court--if it ever does, which I don't think it will--it will be declared to be transformative. There's a huge difference between fanfic--where all the words are mine, that I put down in a unique order to convey a message that came out of my brain, even if the message is as simple as "Rodney and John are in love," and something like music or video piracy, where the mp3 someone gives me is the exact thing that I would have paid for, and all mp3s of a song are identical. Now vidding is a trickier case, because the visual source is theirs and the music is theirs and the uniqueness is in the conjunction/editing, but even then I'm personally optimistic that the effort put into creating the unique message of the vid would be enough to get us a transformative ruling. And these arguments are being made right now about vidding and other forms of DIY filmmaking, by people who really do want to see this creative work legitimized. But fanfic--fanfic's a much easier legal sell, IMO, and slash fanfic even more than gen (because the message is more transformative of the original source; i.e. I am rewriting and transforming work to better accord with my sexual orientation.) Now let me be clear when I say that the arguments I'm making are not about a right to profit, which I think is more complex (though not inconceivable; I think of Poppy Brite's Beatles RPS novel Personal Jesus, for instance, or other literary rewritings like The Wind Done Gone, but never mind for now) but about our right to exist and write and share our work with each other as we've done for thirty-plus years now, and I don't really think that's legally assailable in any way. All that being said, here's my devil's advocate argument: if I haven't convinced you, if you just read the foregoing and thought, "nah, Ces is on drugs; I'm a thief! I'm a rebel! I'm a bad, bad girl!" then let me say this: it would be a good idea for you not to air your (erroneous) belief that fanfiction is illegal in public. Because if I were the other side's lawyer, I'd say, "Look! See! They themselves think it's illegal." (Can I just say, this is part of where I want to kill myself every time a remix challenge kerfuffle happens and people go, "Hey! You can't tranform my work! That's stealing!" *facepalm*.) The acafan community to which I belong has gotten very sensitive about this, because we now realize that if--and I say if, because again, I don't think it's going to happen, because I believe they'll lose--but IF it goes to court, it's very likely that those of us who publish academic work on fandom could be called or cited as expert witnesses. So nowhere will you find in my fannish or published writings the (erroneous) statement that "fanfiction is copyright infringing." There has been no legal ruling on the matter. There's a hella strong case for transformative use.

This race has not been called, and so IMHO we shouldn't act like it has until it HAS.

Now, until it has, there's good reason to exercise some--some!--caution, in that most people don't want to be the test case. (That doesn't mean we won't win the test case, just that you don't want to get into it without corporate money or a nonprofit institute backing you, cause lawyers charge by the hour.) But there's a big difference between backing down to a C&D (and a C&D doesn't mean they're right; it just means they have a lawyer and you don't) because you don't want to be bothered getting into a mano a mano with some second-rate novelist's lawyer, and backing down because you think you're doing something genuinely illegal. I don't believe you are, ok? I believe that you are exercising your free speech. I believe you are transforming mass media because you have ideas that are worth expressing and protecting.

[footnote] a site that's about "bringing fanfic into the mainstream" with an all male board of directors aiming to profit on our female fannish gift economy? What do you think I think? *rolls eyes* But that doesn't mean that they're doing anything illegal or anything that's going to hurt us in a legal way.

Excerpts from Comments: Page One

[kalpurna]]: There is nothing in this post** that I do not agree with 4000%. YES YES YES. It really needed to be said, and you said it.

apetslife: I could not possibly agree with this post more. Every single little part of it. You're fabulous, because, YES! It's NOT illegal! And I cringe a little every time I see that argument trotted out ("Well, it's illegal anyway...yada yada.

ladycat777: And thank you; FanLib made my skin crawl for precisely the reason you stated, that calling attention to the fact that you think it's sketchy means the other side can use that. Among others.

yahtzee63: I entirely agree with you. I believe that fanfic is absolutely legal and in no way infringes upon the copyright holder, and I say so. If the big media companies were ever going to adjudicate this, it would've been, at latest, about 13 years ago. They haven't. That tells me their counsel has told them fanfiction would probably survive a court challenge.

harriet spy: Hm, it tells me more that they don't think there's any profit to be realized from such a suit (no meaningful loss to them from the works + largely judgment-proof adversaries = no upside, especially when you figure in transaction costs). After all, someone did bring the *Suntrust* case--because there was someone to sue. Yes, the work was for profit, but I don't think it would have deterred the other side if it wasn't. Which actually makes me more nervous in this day and age, as other companies figure out ways to make money on derivative art--as soon as you have a deep pocket like Google for vids, there goes the suit. (And imeem was sued yesterday.)

innocenttimp17: really, it's an example of a cost-benefit ratio at work. Companies could sue individual writers for every fanfic. They'd probably win. They don't for a couple of reasons, first it's always bad form to sue your customers, and second though you don't have to make a profit to infringe a copyright, making a profit or detracting from the profit of a copyright holder goes into the computing of damages. It's unlikely that the damages would pay for the attorney's fees in the case. Thus, no suit. Corporations won't take that economic loss so long as fanfiction remains largely an internet cult phenomenon. But should a company like FanLib be successful, that's a different story. THEY might have deep pockets. Thus the ratio changes.

vassillissa: Just yeah. I haven't been to FanLib, but if it's like what I think, just the thought gives me that sinking feeling in the pit of my stomach, the cultural appropriation feeling, the one best summed up by how I felt when I saw a schoolyard game I used to play as a little kid for sale in KMart for $10 with a brand-name, copyright, and official rule book on how you're 'supposed' to play it.

codyne: I only know about this second-hand, so I wouldn't swear to all the details, but here's one case as I remember it. Back in the early days of X-Files fandom (1993 or 94?), a list of forthcoming X-Files zines was going around. One of the publishers on the list got a C&D. We wondered why she in particular was singled out. Eventually, we figured that, while the other zines were listed as being published "by [a person's name]", hers was listed as "by Such-and-such Press." She assumed that they thought she was some sort of commercial entity. She wrote back to the lawyers stating that she was just an individual putting out a small run of amateur zines to be sold for the cost of materials. And then she went ahead and published her zine. As far as I know, she never got any response to her letter and nothing further ever happened.

dejla: I do know of a Remington Steele zine back in the 70s which was served with a C&D. However, the editors printed it anyway -- sans title and editor and writer info. Nothing ever happened. More frightening was the Lucasfilm blow-up over one incredibly bad porn story. For several years after that, Lucasfilm simply said that if you published a zine, you had to send them a copy. Whatever came of that, I don't know.

sockkpuppett: You know, having given my little brain an extreme work out on this very issue, only insert "vidding," you know? I had to conclude that **stentorian voice** until they're knocking at my door with warrants, shackles, a stack of C&D's, their lawyer and maybe a few dogs? It's legal to me. I'm deriving, dammit. I'm parodying! And not only that! I've mellowed so much in my old age, Ces. You wanna take my manipped clips from my vids and use them? Go ahead. Talk about a revelatory smack in the face for me. Well, wisdom does that to me sometimes, just to get my attention. And anyway, if someone does take those clips from me and I find out? More fodder for me to exercise my Dorothy Parkeresque muttering technique. Baby, I'm exercising my free speech by making vids and writing really bad scifiaku and punning. Having truly done a couple of *cough* illegal things in my life, this ain't one of 'em. Yeah, so I'm tangential. Part of my charm. :)

Morgan Dawn: yeah! and I will fight to the death (no wait, not death. not until the season finale of SPN is over. no death before then. or before season 3. or before season 4, 5 or 6) for my ability to write fan fic and vid. and here is a big rasberry to those people who not only think we're infringing, but who are also acting it. I **** in your general direction!

Excerpts from Comments: Page Two

aebhel: WORD on this. I always get irritable when people get into the copyright infringement thing, because they obviously have no legal leg to stand on and it always seems to degenerate very quickly into "well, it belongs to the author, and the idea of anyone writing about their characters bothers them and it's WRONG and how can you be so MEAN?" Because the simple fact is that ficcers do not make money off of our scribblings, authors do not have to read what we write if it bothers them (in fact, in the case of authors like JK Rowling, who are still in the process of writing a series, they're often not ALLOWED to read fanfic) and the fact that the existence of fanfiction is upsetting to them is not a legal argument. And correct me if I'm wrong, but with the anonymous nature of many fan sites, it seems like it would be difficult to even find out the real identity of many ficcers.

anjak j: And correct me if I'm wrong, but with the anonymous nature of many fan sites, it seems like it would be difficult to even find out the real identity of many ficcers. Not especially. Most sites log your IP address when you are active or log in. And whoever files the lawsuit can demand this information is passed on by whichever site. They can then find out from that who your ISP is, who will have records of who was logged onto that IP in that time frame, and force your details out of them.

cesperanza: Oh, don't get me wrong--I wouldn't go NEAR that site, not because I think that it's illegal per se, but because I think they're outsiders trying to exploit us. I also think they'll make shitty advocates for fanfic, so I hope they're not the test case. (It'll be interesting if they're left alone, though; that itself would be its own sort of test case.) But my point is, I think fanfiction isn't actually illegal and will be declared free speech and/or transformative use if it ever comes to a court case, and so it's a bad idea to state--as if it was fact, rather than speculation--that fanfiction is illegal or infringing.

gategrrl: I'd love for the folks here to go ahead and try and publish, through a genuine publishing house, their borrowed characters in borrowed settings. Better file the names off before doing so. Fanfiction *belongs* in anonymous archives....Do you think it's legal take someone else's characters and settings (Harry Potter, for example) and publish it to make money off of it? Oh wait - someone already tried to do that, on Amazon, with a Star Wars fanfic. It was taken down faster than you could whistle Dixie, before Lucas and his legal team could get around to sueing the writer's ass off. That writer was also soundly criticized in fandom for what was done. You just don't DO that - try selling your fanfiction without rights on a site like Amazon. You keep it in the safe confines of the internet in free archives. And sweetheart, I never said that fanfiction itself is illegal. Publishing without purchasing the rights, is illegal. Publishing a fanfiction based on out of copyright characters (Wizard of Oz) is not illegal...although I don't know if Baum's estate is still in existence. I imagine it might be. But anyhow. That writer probably got permission, if the estate didn't exist. All those Jane Austen sequels? Legal - poor Jane and Elizabeth Bennett are fair game, because their legal owner is dead. So is Shakespeare. All legal to write derivative fiction based on their works.

harriet spy: Oh wait - someone already tried to do that, on Amazon, with a Star Wars fanfic. It was taken down faster than you could whistle Dixie.

As far as I know, that case was never litigated. What two private parties agree to in a settlement does *not* determine the law for everyone else.

And sweetheart

I'm sorry; I don't believe we've met.

I never said that fanfiction itself is illegal.

If you took JK Rowlings characters and published your borrowed characters in a new book not authorized by the original writer, who created the characters, their setting and rules, then yes, you fully deserve to get sued by the writer and publisher; you are stealing her ideas in order to make money off of them. THAT is illegal, in my mind." You certainly are making a claim about at least some kind of fanfic's illegality. If you do not at least have some knowledge of the governing legal principles, you are not in a good position to be doing so--any more than I am in a good position to be criticizing a heart surgery technique or various means of engine repair, because I don't even have a layperson's grasp on the technicalities of those bodies of knowledge.

gategrrl: Oh, okay. Then I'll go away with my tail between my legs since I know no more than most of the other people here who are cheering on your particular point of view. For the record, I think it's a gray area. The Big Bad Male Corporations ignore it, as long as the writers don't make money off of it, and don't violate their copyrights. That's all good. But if fanfic writers decide to rear their heads up above the anonymous archives, then it does come to the attention to those Big Bad Boy Corporations. And could possibly become illegal, depending on the courts. Laws change all the time.

tacky tramp: I know no more than most of the other people here who are cheering on your particular point of view." That's a mighty big assumption. Many of us actually have read a fair bit of caselaw on copyright and derivative works, and are familiar enough with the way U.S. law operates that we consider ourselves well-positioned to hold an educated opinion and defend it. Wikipedia and LexisNexis are available to you, should you care to learn more.

aebhel: Well, yeah. I think that's sort of the point that the people suing ficcers miss; I have yet to find a ficcer who thinks that fanfiction is as valid an art form as published fiction. It can't be, no matter how well it's written (and I've read a lot of fanfiction that is WAY better than some published works I've found) because it isn't subject to any kind of selection process. You write it, you slap it down on a website, and there it is. The simple fact is that ficcers don't make money off of what they write, so it's going to be hard to find legal grounds to sue them. It they were actually publishing, that would be a totally different story.

very improbable: Additionally and tangentially: Fanfic is not a separate "art form" at all. We don't have a word for what it is, since it exists in all genres and styles, and what marks it out is not an artistic attribute. The only essential thing that distinguishes fan writing as a unique category of fiction is the copyright status of the originals on which the derivative works are based. (I should cite Teresa Nielsen Hayden here, as I'm basically lifting a page from her argument.)

harriet spy: It can't be, no matter how well it's written (and I've read a lot of fanfiction that is WAY better than some published works I've found) because it isn't subject to any kind of selection process. You write it, you slap it down on a website, and there it is." How does a "selection process" confer validity on an art form? Does some kind of professional gatekeeping raise the average quality of an artform at least a little? Under many circumstances, you can make a good argument for this (assuming you believe that there's some meaningful way to measure quality). But what does that have to do with whether an artform is "valid" or not? The professional gatekeepers of the publishing industry churn out oceans of drek every year. Does that mean that (insert your favorite literary-mainstream novel of the year) isn't "valid"?

harriet spy: I've heard that an artform starts to become "valid" when there are critics to view it, and say something about it. What do critics have to do with the worth of an artform? If I look at a piece of art, bring my intelligence and taste and emotion to bear on it, and find it beautiful or thought-provoking or moving, what critic can come to tell me that the work of art is not "valid" because his profession hasn't gotten around to valuing it yet?

cathexys: May I give you a list of literary analyses of fantexts in peer-reviewed journals and academic books? Because by your definition, fanfiction has been "valid" for a while. And make that three who think that "fanfiction is as valid an art form as published fiction.

aebhel: All I'm saying is that subjecting a work to a selection process before it gets into the mainstream does set a minimal standard of competence. It might not be a very high minimal standard of competence, but the worst harlequin-trash novel that I've ever encountered is still worlds better than some of the caffeine-inspired dreck I've had the misfortune to come across on sites like, for example, ff.net. Yes, there is some wonderful fanfiction out there, but you often have to dig through a whole lot of crap to find it. "Valid" is a tricky term to use, because its meaning is very slippery when applied to art forms. Does valid simply mean "worth reading"? If that's the case there's a whole lot of valid fanfiction out there. If, on the other hand, it means something like "original" - well, that's a more complicated question, isn't it?

dejla: And that's a good point that "valid" and "art form" probably don't belong in the same sentence or possibly the same paragraph. But the word "literature" always raises my hackles a little, because it tends to carry negative connotations. After all, when writing is good, it's frequently very good, but when it's bad, it's usually mediocre. And mediocre work is sold commercially as often as very good work. I also have a problem with the idea that the only legitimate form of writing is writing for money. Not that you said that. Just that when I hear it, the hackles rise again. There are other reasons to write, and other reasons to perform activities, than to do them for money. Neither is superior to the other; in most cases, they're equal.

aebhel: Perhaps I should have been more clear: Fanfiction is derivative, by its very nature. Not only that, but it is not GENERALLY done for any reason other than, well, fun. While there is a lot of really good fanfiction out there, the overwhelming majority of it is crap, because IT ISN'T SUBJECTED TO A SELECTION PROCESS. The concept that every single piece of art, music, writing, poetry, etc. is equal is a relativistic view that I don't happen to buy. Now you're welcome to disagree with me on that, but that's my perspective. The concept of a selection process conferring validity is not any logical fallacy I've ever heard of. Possibly an argument that you disagree with, but that's not the same thing.

cofax7: If one insists that only Great Literachure is art, and that Stephen King is Not Art, then one could make the argument that some fanfiction is Not Art either. (But some is.) But that takes us back to the question of validation by outside authority, which is, well, kind of bullshit. There's plenty of art out there that hasn't been validated by outside authority. The mere fact of being derivative does not make fanfiction not art. Nor does the fact that most fanfiction is crap. Because most written works of literature are crap (and/or derivative), whether they're moldering in someone's drawer or sold on the shelves at Costco. Doesn't make them any more, or less, art. And I've read pieces of fanfiction that were far more creative and artistic and non-derivative than some published novels using so-called "original" settings. My point being that there isn't a single quality one can point to in fanfiction to say "this is not art", without simultaneously removing some recognized piece of Art from the canon.

eregyrn: Why is the motive for producing the artwork important to whether it's considered a valid artwork? Why is art that is done for profit (and often selected/edited for marketing reasons) somehow more "valid" than art that is done for the love of doing the art itself? For the "fun", as you say? I would argue that you've got that backwards. Again, throughout history, the amateur exercise of an art-form was often considered more "pure" and "valid" than the branch of the art-form that was "tainted" by a profit-motive. The concept of a selection process conferring validity is not any logical fallacy I've ever heard of. Possibly an argument that you disagree with, but that's not the same thing. It is, if you understand "validity" to mean what I understand it to mean. I don't think that "quality" has anything to do with validity. I would quite agree with you that a selection process *may* help to promote quality. But that isn't the problem that I have with your statement. And I also have a problem with your equating "publishing" with a selection-process aimed at "quality", when the publishing business is equally aimed at marketability. Do the gatekeepers of publishing keep a lot of crap from being sold? Of course. But then again, they also publish a lot of crap, if they think it *will* sell. Many fans will agree that cheap Harlequin category-romance novels are crappy writing, as crappy as, if better-spelled than, many things you'll find on ff.net; yet they are *very* profitable, and thus are published fiction. Why confer "validity" on that, but withhold it from all of fanfiction?

rke tikki tavi: But what is that selection process about? It doesn't have anything to do with artistic merit or even literary quality. The selection process of getting published is solely about marketability. It's only about somebody somewhere thinking they can sell the book and make money off it. And yes there is lots of fanfic that is a lot worse than the average prose that gets printed. But there are also countless books printed that are a lot worse than much of the fanfiction around. I think the problem with your view of art becomes most apparent when looking at fanfiction writers who are also published authors. According to you, when reading an original work by such an author, you are dealing with a work of art. But when reading a piece of fanfic by the same person, writing of the same literary quality, that's been created the same way as any original work, using imagination and certain writer-ly tools, suddenly it's not art? Just because it hasn't been selected but some arbitrary outside force? That doesn't make sense.

katydidnt98: I think it is just as valid an art form as commercially published fiction - and the lack of a selection process is a point in fanfic's favor. Any selection process has the potential of devaluing the artistic work as art, because it necessarily fails to admit that which doesn't fit in with the selection person/committee's ideas on what will sell. Artistic merit and commercial viability are completely different things. Granted, a work won't be published if it's simply horrible (above and beyond the "hey, this sucks" reaction given to some commercially published fiction), but the process of eliminating the true crap also eliminates a lot of quality work that fails to meet that publishing entity's criteria for what they think will sell a lot of copies. To sell, it has to have mass appeal. Much art doesn't. The lack of a selection process for fan fiction allows a lot of slapped-together-in-20-minutes junk to get through, unfortunately, but it also allows free expression by everyone, regardless of how much of a profit it has the potential to turn in the short-term.

aebhel: I quite agree, actually. Maybe I'm just bitter about the amount of crap on sites like ff.net...

gategrrl: You disagree that a fanficcer, writing with currently copyrighted characters and settings (ie Atlantis) should go off and try to get their fanfiction published without trying to buy the rights? Assuming they'd like to publish their derived fiction, that is? As long as fanfiction is kept out of the established world of copyrighted publishing and so forth, then sure, it's in a gray area. You're not making money off of it. Because you're doing it for *fun*. And you're keeping it off the official books, so to speak. Fanfiction writers can be VERY creative, using narrative techniques, etc not normally used in printed original fiction (because that has to sell, and make money). There's nothing wrong in that. It's for FUN. But any writer who wants to turn pro? Has to leave those toys behind in order to get published. There are a few writers who have gone pro, who still write fanfiction for fun. But it's kept under the radar.

gategrrl: Look. Let me put it this way: I don't give a rats' ass if fanfiction is legal or not, if the fanfic writers aren't trying to steal credit for the creation of someone else's characters/relationships/settings. Bottom line, I think that at bottom, *for me* and a few other people I know, fanfiction, although a nice outlet, isn't as full of accomplishment as creating your own characters, and settings for them to roam around in. To that end, I can understand why published writers, for example, as a rule do not like others playing in their sandbox. Those others didn't put in the hundreds of hours putting that world together. It's not an RPG game. I'm wondering if that's why this has become a larger issue than it once was: younger fanfic writers are more exposed to these shared world games, etc and think everything is up for grabs, whether the original creators want it to or not. But I'm thinking out loud there. Anyhow. Freedom of expression also means that you're fully able to create your OWN characters and so forth, just as easily as borrowing someone else's.

zillah975: Bottom line, I think that at bottom, *for me* and a few other people I know, fanfiction, although a nice outlet, isn't as full of accomplishment as creating your own characters, and settings for them to roam around in. That's cool. For me, it's almost an apples/oranges comparison. I write original fiction and fanfiction, and they're very different things, very different processes, each with things about it that are more difficult and less difficult than the other. In original fiction, I make it all up, yes - but I can make it all up. I'm creating canon, not trying to abide by it. I guess to me it's like the difference between writing free verse and writing a terza rima. In fanfiction, I have to fit my story to the canon I'm setting it in, I have to know that canon, research it, understand it, get inside it. It isn't easy. Now sure, there are fanfic writers who don't do that, but there are original-fiction writers who don't bother to do the work they should do either, and either one is as likely as the other to turn out inauthentic, poorly characterized crap.

lamardeuse: I'm so glad to have you on my flist to keep me up to date with the latest trends in fandom, because I totally missed the memo on this FanLib thing. And my god, The launch of FanLib.com represents the coming of age of fan fiction, or "fanfic." Give me an effing break - wow, now we can finally achieve puberty because male-dominated corporate America has figured out a way to line their pockets through fanfic! I can feel myself finally becoming a woman.

paper legends: I just wanted to say, I'm an editor with a fiction publishing house. We have sued and taken legal action against people who have violated our copyright with their fansites--reproducing, distributing, scanning, retyping or make derivative fiction and art. We only bother to do so if it's harming our profits or offending our creators. But even if the fanficcers/fanscanners didn't make a dime off their sites? They're still violating our copyright. All we'd have to do is prove that we hold the copyright with our All Rights Reserved contract, and we could sue the fans and win--we wouldn't even have to make a case that what they did damaged our sales at all. Of course, going after fans for fanworks that doesn't steal money away from the original creators is just silly--most times, fansites help promote the property and build the fanbase. But legally? There are hundreds of cases that have resulted in legal ruling that supports that even fanworks on the internet violate copyright; the sites are taken down and sometimes fines are enforced. Just because it doesn't make the papers, doesn't mean it doesn't happen.... I say all this, but I myself am a fanfic writer--it was what led me to becoming a novels editor. I have over 50 fics on my own site. My site violates copyright. But I'm not making a profit and I'm not taking sales away from the TV shows/movies/novels that I write for, so I doubt copyright holders will go after me. But they could. And they'd be correct to do so, b/c my works are not parodies, they are derivative pieces of fiction using characters, settings, and images I do not own. And 9 times out of 10, the copyright holders would automatically win their case. And even though I post under a screenname, finding my IP address and handing out subpoenas until my identity is discovered would actually be ridiculously easy for the copyright holders to do, too. So, make fanwork at your own risk. But yes, it IS illegal. I've watched copyright law go to work time and again for my company. Sorry, dude.

paper legends: Yes, you're right, thank you for making the distinction for me--when I used the word "ruling" I meant what the outcome of the case was--not that a Federal judge had ruled on it. I apologize if I misused the terminology--I'm an editor with no legal background whatsoever. I just know I've had about a dozen conversations with our legal department about things like fan fiction and scans, and we have sued before and we've always won. But we've never ever gone after anyone who's not out to make a profit but is just being a fan. Not that we wouldn't have *grounds* to, b/c anything involving our art/words/characters is ours, and whether the fans make a profit or not, it's still a violation against what's ours. But, again, it's just plain stupid to alienate people who just want to celebrate a property and aren't looking to hurt sales or make a quick buck off someone else's sweat, you know? I can't imagine WHY a company would want to go after fanfiction--fanZINES, yes. Fan fiction, well, usually it's just people out to share their fantasties about their fandom, not to try and get published or make money or sink their shows, right?

zillahseye: In spirit I'm in complete agreement with you. However, some interesting things came up in a conversation I had with a friend of mine who is 1) a RPS writer and 2) an intellectual property lawyer. He explained to me the difference, legally, between them from the fanfic author's perspective, and I'm going to try to reproduce it here. A RPF writer is free and clear to write what he/she wants because, right now, there is no way to copyright a persona. If the writer disclaims his/her work as fiction and doesn't seek to harm or defame his/her subject with the work (sending it to a newspaper or to the famous person's SO as a factual account, for instance) he/she is safe on legal ground. A FPF writer is on shakier ground. My friend said his firm's been considering cases (hypothetically for the moment, but he said "it's only a matter of time"), in which authors had reduced ability to defend ownership of their work based on evidence that they tacitly "permitted" infringement. It wasn't that the authors themselves sued fans or were upset by fanfiction, but that they were perceived as risks by their employers (publishing organizations and media companies). Once an author contracts, he or she doesn't own his/her work exclusively anymore, but is part of a franchise that may consist of a lot of companies. If an author can be proved permissive toward fans stealing or altering collaboratively owned characters, ideas, plotlines, or concepts, the author could be complicit in industrial espionage or in breach of his/her contract. My friend claimed it was partly due to fanfic discussion being mainstreamed and partly due to more authors having a strong online presence (message boards, Yahoo groups, LJs and so on) that was making this a realistic possibility.

harriet spy: It sounds like your friend, despite being an intellectual property lawyer, doesn't necessarily know the difference between copyright and trademark infringement. You can lose rights in trademark if you fail to pursue infringers. It is very difficult to do the same with copyright (though not impossible--for example, a person might be able to assert laches or estoppel as a defense to infringement if they could demonstrate that a copyright holder *knew* of *that person's* specific infringement and either didn't act or assured the infringer that they wouldn't act). Now, I suppose companies could insist on clauses in authors' contracts requiring that they not even appear to countenance fanfic, etc. Then a suit would be a matter of interpreting the individual contract. But the scenario outlined above is extremely improbable, and people do lose money by suing--all the time. Litigation can be extremely expensive.

Excerpts from Comments: Page Three

utterfrivolity: Thank you! For a while I tried to reply whenever someone took the illegality of fanfiction for granted, particularly when they were clearly sympathetic to fanfiction but just assumed it was illegal, but it became exhausting. I think a large part of the problem is that people do not understand the legal system and specifically do not understand the nature of legal change. The best way to ensure that policy develops in a favorable direction in this area is to organize behind shared constitutional and legal principles long before the cases reach the higher courts. If we accept anti-fanfiction authors and publishers' framing of the issues, we don't stand a chance.

darkrosetiger: There hasn't, to the best of my knowledge, been a definitive ruling on fanfic as a genre. However, there has been at least one case where an author brought suit against a fanzine publisher and writer for writing fic based on her work, and won [1]. Chelsea Quinn Yarbro sued after someone wrote a fic based on her Saint Germain series. AFAIK, this case did have a slightly unusual aspect, because the writer contacted Yarbro and asked for permission, which was refused. Since most fic writers effectively operate on the "don't ask/don't tell" principle, this case may not be precedent for anything. On the other hand, I really wouldn't want to try making the case for the legality of R- or NC-17 HP fic, where the author's agent has made their position pretty clear.

harriet spy: I do not believe that this fan-writer was actually found to have infringed CQY's copyright. It's really important to keep distinct settlements between private parties--which often reflect the balance of power between the parties much more than the legal merits of the case--and actual court rulings.

thecert [see The Holmesian Federation #8] Without giving the impression that I subscribe to the views expressed in CQY's HWA newsletter pieces, I'd like to say: CQY was apparently genuinely concerned that she could effectively lose the rights to her character Saint-Germain [2] if she failed to pursue any unauthorized uses of the character as instances of copyright infringement. She opened the first article by calling it "a horror story, a for-real horror story," and she indicated that she felt this instance could force her to choose between being strapped by pursuing a lawsuit in federal court or being beggared by losing rights to her character. More to the point, she had a for-real lawyer backing her up: drafting apologies for the fan author and fan publisher, citing case law. The interpretations of copyright law referenced in the articles didn't, I'm sure, come out of thin air, nor are they exclusive to CQY and her lawyer. Yarbro is not the only author who is convinced that she can lose rights - effectively or in fact - to her creative property by ignoring uses such as fanfic. I say "effectively" because there's a belief among book authors that publishers may refuse to buy books written about a "compromised" character: i.e., one that the author permits fanfic about. How this belief is promulgated and how widespread it may be - I don't know. But Yarbro's worry about losing her character to a fanfic probably reflects this fear. I've also read of authors who say of fanfic: "I won't prosecute you - my publisher will." P.N. Elrod expressed this sentiment in an issue of her newsletter for fans. I've been unable to find that number, but here's an excerpt from the P.N. Elrod Fan Club newsletter #13, January 1997: In response to a question about fanfic for one of the characters in the Keeper of the King novels co-authored by Elrod and Nigel Bennett, the newsletter said (in addition to deeming such works copyright infringement and illegal), "Some writers have contracts that require them to prosecute.

darkrosetiger: Yarbro's interpretation of copyright law is...interesting.

porntestpilot: How could it be infringing on a copyright when I am not making any money off this, and we only borrow very small sections of a show? Such as, I've only done one episode tag in my life, everything else was utterly batshit. [Even the episode tag was batshit.] Could anyone really argue, oh shit, they broke my legal standing by writing J/R as gay penguins? DOES ANYONE REALLY WANT TO ARGUE THAT? Or say, pick one of my random AUs, a large portion of that, I made up, thanks. I don't need credit, but I could change the names and a few details, and they could be my original works, so like...am I missing something? It was my understanding that a common use allows fanfiction. Am I listening to Paul Gross too much? And say, what about things like fark? They make money off people linking to newspapers and mocking them. They are using other people's copyrighted stuff to make money as well. [Yes, not in the same way, but it's so murky and insane.]

anonymous: I'm a thief! I'm a rebel! I'm a bad, bad girl! I think you've pegged it exactly. But as far as het or slash fanfic is concerned this undercurrent is also inevitable, because a significant percentage of people are reading het and slash and writing het and slash in the belief that to read or write such material is naughty. They want to feel that they're living dangerously while at the same time feeling perfectly safe. And naturally they try to impress others that they're bad bold rebels. The problem is, eventually someone is going to try to make money or prestige off this myth. The solution: Don't let people buy into this myth in your presence. It's rubbish, it should be treated as rubbish, and pointed out as rubbish. The thrillseekers will wise up or go find some other cheap thrill.

carmarthen: ...at a conference I attended recently (in an educational subfield; not fannish) there was a discussion of fair use, and being a transformative creative work is an argument against fair use. Which suggests to me that transformative nature, not fair use, is what we should be using to defend the legality of fanfiction.

taverymate: Though you're quite clear about this post being your personal opinion (albeit well-informed and considered), I have some concerns that other fen will adopt the idea wholesale simply because they so want to believe it and because your opinion carries with considerable fannish cachet.

[a fan quotes Cory Doctorow from a then-recent Locus feature article in May]: Writers can't ask readers not to interpret their work. You can't enjoy a novel that you haven't interpreted — unless you model the author's characters in your head, you can't care about what they do and why they do it. And once readers model a character, it's only natural that readers will take pleasure in imagining what that character might do offstage, to noodle around with it. This isn't disrespect: it's active reading.

cesperanza: I would argue so, yes; I think slash in particular is significantly and importantly transformative. But then again, there are so many ways in which fanfic is transformative; there are stories where, I mean, other than the names, how would you even connect the fanfic to the show?--I mean, consider AUs. Consider genderfuck. Consider Harlequin challenges. Consider wingfic and crackfic. Consider mpreg!--my god, the argument I could make about mpreg as a gender commentary on mainstream mass media! I think our creativity is boundless and important, so yes, yes, absolutely I believe it. Next to that, the Wind Done Gone is a yawn and Lo's Diary is a bore!

innocentimp17: Alright, I can understand that you could make the argument. They've run through my head a time or two. But on the whole, how much of fanfic is well written enough to truly deserve to be called social commentary. 10%, 20%? Maybe less. I mean look at huge sites like fanfiction.net how many stories there have worth to anyone beside the author? More importantly, despite the arguments we could make, I don't believe that a court in the US would be likely at all to find that these works qualify as social comment or criticism. It's their ultimate opinion we should be most concerned with. Just because we could make the argument doesn't mean it would be successful. As to the connecting the fanfic to the show I must confess I really only hang out in HP fanfiction, thus I can only comment on that. Given that the characters are as recognizable as they are, as are the places, the magic, the universe, etc. Even if only a small portion of canon is in the fanfic it IS highly recognizable. Perhaps that is less true of other fan realms. I'd also bear in mind that while slash is prevalent in fan communities, it is still not widely accepted across the nation. It's still taboo. Because that's the case I think a court could hold such writings in a negative light should a copyright holder bring a case because they feel that slash is tarnishing and reflecting poorly on their work.

saphanibaal: I have always understood the use of a disclaimer to be, not a denial-of-intent-to-infringe (as, as pointed out, it's not necessarily infringement and if it should be a disclaimer would be no protection), but an acknowledgment that proves that whatever else this disclaimed thing may be, it isn't plagiarism. I mean, if I write the characters from Source A acting out the story of Source B, and somebody in Source A fandom reads it, they might think that I came up with the plot myself. Obviously, I didn't, and it's fair to cite B's creator to show that I have no intention of claiming the plot as my own work. Similarly, if somebody from Source B fandom reads it, they might think I made up some of the characters from A if they don't know all of them. It is for this reason that disclaimers tend to be more in use in multifandom venues and less in use in single ones -- if you're posting your Star Wars fic to a Star Wars group, presumably your entire audience will know that Luke, Leia, their parentage, their current relationship, etc. were not invented by you, and will be able to tell when you add your own ideas. If you're posting your Philo Vance fic to a rareliteraryfic group, you may wish to note that he, Van, and some of the other characters were originally created by the man who originally published under the pseudo-identity of S.S. Van Dine (Willard something, I forget what) since half the group is probably thinking "Philo who?" anyway.

aliskye: I'm fascinated by this topic but respectfully I have to disagree to a certain extent. I work for a major motion picture studio and took the opportunity to discuss this with two of the attorneys here. Both agree that the lack of a definitive court ruling on the topic does not make fanfic legal. Fanfic is still creating a derivative work, a right that is only held by the copyright owner. Whether any of it could be defended on fair use claims, is of course, still the big question. Unfortunately I don't think most fanfic would survive a fair use claim as most of it isn't parody or criticism or any of the other protected uses. While not exactly fanfiction, there is one case that comes to mind that might weigh in as to how the court might treat this topic: Anderson v. Stallone, 11 U.S.P.Q. 2d 1161 (C.D. Cal. 1989) The idea that fan fiction is transformative is an interesting one. Both attorneys I talked did not think that would be sufficient protection, though one suggested that a de minimus use was less likely to be a problem.

cesperanza: Respectfully, I disagree right back at ya, if only to say that--well, yes, this would obviously be the major motion studio position! They've got a horse in this race; so do I. My argument is only that: this is still a horserace; they'll make their arguments, me and my people will make mine (if it ever comes to that.)..and see, do the attorneys you're talking to even know how beautiful fanfiction is? Are they just picturing, like, lame tie-novels written for free that have no TAKE, no perspective, that don't change and transform and do and complicate the 2D men the TV gives us? I love fandom; I love fanfiction; I love the women who write it; I think it's amazing and a genuinely feminist art form and the kind of writing I'm most interested in engaging with, and FWIW I've a doctorate in Englit and tenure and the whole enchilada. And I'm willing, increasingly willing, to explain this to people, and to assert that telling stories is my right as a human being.

aliskye: But.....whether something is good or bad doesn't impact whether it's legal or illegal. I'm a long time member of fandom myself. I've read some *brilliant* fanfic and I love the empowering nature of it for both men (small through their numbers are) and women. I've dabbled (badly) in writing it myself. But I still think the vast majority of it is of a derivative nature (and thus a copyright violation). I'm not, however, suggesting that anyone stop. I think people should keep writing. I think fanfic is both a training ground for writers and a place to showcase amazing works. I just think people should be aware of all sides of the legal issues.

cesperanza: No, but it DOES--not in the sense of quality, but in the sense of commentary, transformation, articulating things that haven't been said. In short, the originality of the ideas in fanfic may be GREATER than their "derivation" from the source material.

nagasvoice: I will crosspost, with many thanks for explaining the issue so clearly. Under the "divide and conquer" score, many people in fandom communities are fearful and use this issue as a club against fellow fans. This fear is used as one of the main excuses for put-downs and selfish, exclusionary behavior that does not benefit the community as a whole.

Excerpts from Comments: Page Four

illegal goddess: It's the money thing. Once fanfiction will be officially legal, the step between non-profit use and getting money (while not sharing any of that money with the original creator) will be small, smaller, tiny... And then the original creators will rebel....

alphekka alpha: Regardless of any legal aspect, I suspect that the corporate execs. are fully aware that fan fiction is the glue that holds their fandom together, and probably actually increases their sales. Cory Doctorow, so I'm told, has posted some of his fiction on his website. People read it there, like it, appreciate the gesture, and go buy his books. He's gained as a result. 8-) So as long as we don't hit their (financial!) bottom line, I think they'll continue to turn a blind eye. I guess those corporate execs. also appreciate the potential for a whole lot of bad publicity. If they, the 'fat cats,' take some fan fiction writer to court and it turns out she's on a low income, maybe has health problems, and has a *lot* of friends in the fandom, then a court case will likely backfire on them and may impact on their profit margins. One source of legal action I can foresee, as a parent, involves R.P. fiction. Imagine a fic involving a graphic account of gay sex between a couple of actors - real people - real straight people. The fic is still on the Net years later when the writer is now in a well-paid job. It turns up on a school computer. The fourteen year old son of one of the actors sees it. So does the school bully who really goes to town with it. The boy is taunted, traumatized (the suggestion of their parents actually having sex is enough to gross out most kids!) - maybe even gets beaten up - homosexuality by association. The parent takes legal advice regarding libel, defamation, misrepresentation... Just sayin'

cesperanza: Actually, strange as it may [seem], RPS is the legally safest genre and the oldest, because--well, famous people have fewer rights, weirdly. There are whole industries dedicated to fantasizing about famous people, even sexually. That's why you can have a zillion manips of Britney Spears naked on the internet. As long as you're not claiming it's "true"--that's libel--you can make up stories about famous people, whatever you may think about it legally. (Non-famous people is another matter entirely!)... [Also] there's no protection of minors in the way that you mean, protecting them from stories--unpleasant or fictional--about their parents. I mean, you can't stop someone's kid from buying the national enquirer either, and hearing they had sex with Elvis or an alien. *g* Also--defamation and misrepresentaion is if you're saying it's TRUE. RPS --fiction that says, this is my fantasy story about Justin Timberlake or whatever--you're not claiming it's true.

yeayornay: What I think is that fanfiction is beneficial for the TV-series. The powers that be knows this and that's the reason we're not getting sued (if they think they have a case for it). TV-series as Supernatural has even brought fanfiction and slash into the show. I honestly think I might have stopped watching a few of my favourite shows like NCIS if it hadn't been for writers taking it upon themselves to "correct" some of the plot holes and missing characterizations. It keeps the interest up between episodes and seasons. It seems logical for me not to assume non-profit fanfic is illegal until it has been declared illegal. And I think that the corporations will not prosecute non-profit fanfic even if the law should turn out to be on their side, because non-profit fanfic is in essence free marketing.

References

  1. ^ There was no lawsuit. See A Matter of Willful Copyright Infringement
  2. ^ Saint-Germain is not Chelsea Quinn Yarbro's character. Saint Germain was a real person.
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