Fan Fiction, Fandom, and Fanfare: What's All the Fuss?

Academic Commentary
Title:	Fan Fiction, Fandom, and Fanfare: What's All the Fuss?
Commentator:	Meredith McCardle
Date(s):	2003
Medium:	online, print
Fandom:
External Links:	Fan Fiction, Fandom, and Fanfare: What's All the Fuss?, Archived version
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Fan Fiction, Fandom, and Fanfare: What's All the Fuss? is a 2003 academic paper by Meredith McCardle.

The message: fan fiction is illegal, and batten down the hatches, as you're probably gonna get sued. And the threat is growing, growing, growing!

Some Topics Discussed

• fan fiction and legalities
• the first zine to receive a cease and desist: Dreadnought Explorations
• erroneous information on what the article claims to be the second zine to received a cease and desist: Guardian
• discussion of the Open Letters to Star Wars Zine Publishers (1981) sent by LucasFilm
• one of the main take-aways is that fans can reduce risk by not using their fanworks in any sort of a "commercial manner"
• slash
• Mary Sues
• the author asserts that fan fiction infringes upon copyright, the copyright of fictional characters: "For women in particular, the primary writers of fan fiction and fandom provide an escape from traditional societal gender roles and permit a writer to explore the contours of relationships in a postmodern society. This is increasingly true with regards to slash fan fiction. Despite the personal benefits derived from writing fan fiction, it is copyright infringement, nonetheless."
• the role of fair use
• the statement that fanfiction.net has almost 500,000 works archived on its site
• using the parody argument
• the value of disclaimers: "Fan fiction authors will assuredly improve their legal status by using disclaimers.... Courts have held that disclaimers are a valid and productive means by which defendants can distance themselves from the plaintiff's ownership interest."
• cites a 2002 email from Xing Li
• "Even if fan fiction is able to leap the copyright hurdle, a finding of infringement is still a real threat under trademark law."
• " In today's online world, cease and desist letters from copyright holders are routine practice."
• a horrible explanation of why women write Mary Sues (it's about the shame they feel) that is more shaming than most shame itself
• the surprising omission of that old hoary tale: Marion Zimmer Bradley Fanfiction Controversy

Introduction

Do you remember that Star Trek episode where Captain Kirk and Spock confess their romantic feelings for each other? No? Well, how about that Harry Potter storyline in which Harry befriends Draco Malfoy, and they join together to combat the forces of evil? Still, no? One more try, what about that scene in Star Wars where an angst-filled Darth Vader seeks solace through the composition of love sonnets? Are you still scratching your head, wondering if you have missed something? Welcome to the world of fan fiction, a world in which a fan's wildest and most imaginative dreams come to life, a world that is probably bigger and more encompassing than you ever realized.

What exactly is fan fiction? Rebecca Tushnet provided one of the most succinct definitions when she described fan fiction as "any kind of written creativity that is based on an identifiable segment of popular culture, such as a television show, and is not produced as 'professional' writing." Have you ever walked out of a theatre wishing a movie had more fully explored a certain plot element or wondering what drove a character to act a certain way? Chances are you have. When somebody takes the extra step and puts pen to paper, thereby crafting an extended plot or adding a scene exploring that character's motivation, the result is fan fiction. You yourself might have even written fan fiction and not realized it. For example, did you ever read the short story The Lady, or the Tiger in a junior high or high school English class? Did your teacher ask you to compose an ending to it? If you answered yes, congratulations, you have written fan fiction.

This Note is a guide for anyone interested in the plight of the fan fiction author, be it the writer himself, the consumer of cultural products, or the passive observer with an interest in intellectual property law. Nonetheless, this Note's orientation is written primarily for the fan fiction author. Part II of this Note will begin by familiarizing the lay person with the world of fan fiction. It will explain basic terms and trace the history of fan fiction. Also, it will explore the cultural and sociological significance behind the writing of fan fiction. Part III of this Note will delve into the copyright issues surrounding fan fiction and determine which exclusive rights of a copyright owner fan fiction authors violate when they write stories. Of particular importance to the fan fiction author, Part III will also set out any defenses he or she could use if tested by a copyright owner, beginning first with implied consent. This Note will then explain the fair use doctrine as it relates to fan fiction and will give fan fiction authors basic guidelines to structure their stories within the current scope of fair use precedent.

Some Excerpts

The first instance of a recognized clash between fan fiction authors and copyright owners occurred in June of 1977 when Paramount, the copyright holder to Star Trek, sent a cease and desist letter to Linda Maclaren and Gina Martin, publishers of a Star Trek fanzine. However, Paramount voluntarily dropped the case when it learned the fanzine was not a professional publication. The next instance occurred in September of 1981, when Maureen Garrett, the head of the Official Star Wars Fan Club, sent a cease and desist letter to the publishers of "Guardian," a fanzine that published adult fan fiction based on Star Wars characters. Garrett alleged the club had violated an informal policy of copyright holder LucasFilms Ltd., which had tolerated fanzines provided they were not pornographic. The publishers of "Guardian" backed down and ceased publication.

The birth of the Internet signified a change in the method of distribution and catapulted fan fiction into the mainstream, allowing anyone with a computer and a modem to instantly read fan fiction. Accordingly, with the increased Interact posting of fan fiction came the increased mailing of cease and desist letters to website operators. In today's online world, cease and desist letters from copyright holders are routine practice, yet the popularity of fan fiction continues to grow at exponential rates. Despite this, not a single fan fiction case has appeared on a court docket, although this distinct absence of litigation may not continue indefinitely. Fan fiction authors could quite possibly find themselves defending their actions before a tribunal at some point in the future.

In her book The Cultural Life of Intellectual Properties, Rosemary Coombe expands on these reasons and details the way in which cultural figures fulfill an inherent human drive, particularly for women. Coombe first details the fanzine phenomenon, out of which grew the modern proliferation of Internet fan fiction. As Coombe reports, middle-class women started the very first Star Trek fanzines in an attempt to explore and expand the characters and their relationships. Early on, these women used the fanzines "to explore their own subordinate status, voice frustration and anger with existing social conditions, envision and construct alternatives, share new understandings and express Utopian aspirations. Fan fiction, in turn, serves a purpose more important than merely reworking existing stories. Fan fiction serves as a medium for social comment, criticism or satire, allowing women to explore their place in a male-dominated society.

The much-ridiculed random staple, the "Mary Sue" story, illustrates this purpose. While fandom uniformly feels disdain for "Mary Sue" and her romantic endeavors, the vast majority of fan fiction writers have, at one point or another, written a "Mary Sue" story. Most often, an author writes a "Mary Sue" story as one of their first forays into fan fiction. Many academics and social theorists suggest that women use these "Mary Sue" stories to '"recreate their adolescent selves" in an attempt to undo or minimize the pain, shame or regret they harbor from those years with respect to themselves or their place in society.

"Mary Sue" stories, which are uniformly scorned and mocked by the rest of fandom, center around an ideal woman created by the fan fiction writer. The character is always an aggressive sharp-witted, steel-tongued mass of intellectualism, who also happens to be young and beautiful This character will ultimately become the love interest of one of the main canon characters.

In certain fandoms, implied consent may be the strongest argument a fan fiction author can make. If the copyright owner has known about the fan fiction writing and has cither encouraged it or allowed it to continue unchecked, the fan fiction author should be able to argue that the owner impliedly consented, thereby quashing any subsequent attempts by the owner to stop fan fiction distribution and creation. This argument, similar to that of equitable estoppel, is strongest when '"there is express consent by the copyright owner or [he gives] some statement that he does not regard the defendant's acts as infringing or that he has no objection to the defendant's work. When a copyright owner has made these sorts of implications, a defendant's implied consent argument should win.

Thus, fan fiction writers should know the attitudes of canon authors towards fandom. The views of copyright owners concerning fan fiction encompass a broad spectrum. On one extreme are owners such as Anne Rice, who expressly forbid the writing of fan fiction and try to quash it. On the other extreme lie owners such as Lois McMaster Bujold, who encourages the writing of fan fiction and even posts fan fiction on her personal Website. Most owners seem to occupy the middle ground, tolerating fan fiction. In that many authors tolerate fan fiction writing, implied consent may be one of a fan fiction's strongest arguments. If the circumstances are right and the fan fiction writer borrows from a consenting copyright owner, a court should excuse the writing of fan fiction based on equitable grounds.

In deciding whether or not to allow a particular work of fan fiction as a fair use, the first question is whether the writing of a particular piece is a noncommercial use. Fortunately for the fan fiction author, most fan fiction, by its very definition, is a noncommercial usage. Fan fiction is mainly a product of the Interact, and fan fiction authors do not make their readers pay a fee to access the stories. One court has implied that when writers upload their works onto the Internet and allow readers to access them for free, this is a noncommercial use that weighs towards a finding of fair use. Following the reasoning of another court, most fan fiction writers are not "in the business of copying copyrighted works because no money ever changes hands. The ultimate purpose behind fan fiction writing is to satisfy innate desires, not to make a profit. Fan fiction authors themselves see their use as noncommercial.

This is evidenced by one of the defining elements of a work of fan fiction — the disclaimer that usually appears atop the work. This disclaimer, written by the fan fiction author, acknowledges that the author docs not own the copyright to the work and typically points out that the author is not receiving any sort of financial benefit from the work.

Several courts arc more prone to find a defendant's use is fair when the defendant acknowledges that the material is borrowed from a copyrighted source, such as by adding a disclaimer.