Friction over Fan Fiction: Is this Burgeoning Art Form Legal?

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Academic Commentary
Title: Friction over Fan Fiction: Is this Burgeoning Art Form Legal?
Commentator: Grace Wescott
Date(s): July/Aug 2008
Medium: online
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Friction over Fan Fiction: Is this Burgeoning Art Form Legal? is a 2008 essay by Grace Wescott in "Literary Review of Canada."

Note: this essay was published just as The Organization for Transformative Works (mis-titled in the essay) launched.

Some Topics Discussed

  • the history of fanfiction
  • a description of fanfiction and some of its genres and tropes
  • Harry Potter
  • quotes from the usual go-to people: Rebecca Tushnet, Enterprising Women, Textual Poachers
  • the differences between American and Canadian laws and definitions
  • the shadowy legal realm of fanworks

Excerpts

Last October, J.K. Rowling startled the world with the revelation that Albus Dumbledore was gay. This was widely reported. Less reported was the remark she made following that revelation: “Oh my God, the fan fiction now, eh?” Fan fiction? It’s no secret that J. K. Rowling has a tremendous following. Unknown to most people, however, is the burgeoning online community of Harry Potter fans who amuse themselves by writing their own stories set in Rowling’s fictional world. And the phenomenon is hardly confined to Hogwarts. Fascination with the imaginary worlds of television shows, films and books has prompted devotees – the vast majority of them women – to respond with their own amateur creations. The Man from U.N.C.L.E., Buffy the Vampire Slayer, Star Wars, X-Files, Xena: Warrior Princess, and of course, Lord of the Rings, are among the many works that have inspired fans to write their own stories using the characters and settings from the works they love.
Originally published in hand-stapled mimeographed pages called fanzines, collections of these fan fiction stories were distributed in the early days as a kind of pop-cultural samizdat – undercover publications handed out from boxes under tables at fan conventions or stuffed into envelopes and mailed to fan community members from volunteers’ basements. But fan fiction migrated to the Net in the mid 1990s, where it has since exploded in size and scope, generating vast ad-supported fan archives, blogs, and hundreds of individual fan web sites. The fandom of Harry Potter alone has generated hundreds of thousands of fan fiction works, ranging in size from exactly one hundred words in length, (tiny vignettes called drabbles), to full-length novels. Today, a Google search of ‘fan fiction’ brings up over 26 million hits. Fan fiction, as a consequence, has become highly visible to fans, non-fans, authors and media companies alike. A poster child for the new ethos of participatory culture, it is at the heart of a ‘free culture’ movement which celebrates the making of user-generated works and ‘appropriation art’, and seeks to liberalize laws to let individuals remix and mash-up others’ copyrighted works to create their own. Not coincidentally, all this is happening at a time when debate over what is ‘fair’ in the fair use of copyrighted works is receiving more attention than ever before.
On this reasoning, Mr. Spock has every bit as much validity as a cultural reference within the fan context as has Ulysses, or King Arthur, within the context of the poetry of Tennyson: whether you are reworking stories of Homer, or of Homer Simpson, you are doing much the same thing. This rather elevated argument is asking fan fiction to carry a lot of freight. I suspect most fan writers are having more fun than this. But advocates for fan fiction are trying to counter a perception that fan fiction is a marginal endeavour, a bizarre pastime for emotionally immature people obsessed with reworking ephemeral works of popular entertainment to produce amateurish, second-rate writing. With even fan-generated websites acknowledging this kind of thing – see http://www.godawful.net -

– such advocates do have a challenge.

They also have a point. The idea that cultural works build upon their predecessors is incontrovertible. We do want a flourishing public domain to allow creators to build on the ideas contained in the works of others. But in obvious contrast with mythology and folklore is the commercial nature of the works on which fan fiction is based: the fact that identifiable authors or creative teams within media companies created them and are presumably trying to earn a living from them for the limited (though, many believe, not limited enough) time the copyright allows. Many iconic works in our culture are still under copyright, which complicates the process of retelling identified by Jenkins. Fan fiction, for its part, must negotiate this conflict of creative interests in the midst of the rapidly evolving cultural norms and expectations of the Net.
To start with: is fan fiction legal? Fans are understandably nervous. To date there have been no court decisions on the point in either Canada or the United States, so the legal status of fan fiction is uncertain. Fan fiction typically appropriates fictional characters and settings from popular copyrighted media works. Copyright law in the United States, where most of this discussion takes place, offers significant copyright protection to distinctive fictional characters as such. And a copyright owner’s exclusive rights in a work extend explicitly to derivative works based on the original work. Derivative works are fairly broadly conceived in US law: A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation or any other form in which a work may be recast, transformed or adapted.

Most fan fiction would fall within this definition. And unless the unauthorized writing of fan fiction can be characterized as a fair use under US law, that means it’s infringing. As a result, many commentators, and indeed, many fans themselves, operate on the rueful assumption that fan fiction does in fact infringe copyright.

Undaunted by this, Rebecca Tushnet, a professor of law at Georgetown University, and a keen fan fiction writer herself, wants to take fan fiction out of the legal shadows where it has operated, more or less at sufferance, for decades, and carve out a legal place for it within the US doctrine of fair use. She has recently helped found the Organization for Transformative Use, with the mandate to establish fan fiction within the parameters of legal, non-infringing use.

Tushnet argues that the writing of non-commercial fan fiction is fair use. Fair, because it takes the source material as raw material and creatively transforms it in ways that copyright law is meant to encourage – for example, by expanding covert meanings perceived to be present or implicit in the original text, presenting new interpretations and viewpoints, or reflecting critically on the original content – and because it is extremely unlikely to substitute economically for, or damage the market of, the original work. “Like a book review that quotes a work in order to criticize it, a retelling of a story that offers the villain’s point of view or adds explicit sexual content can be a transformative fair use,” she maintains.
But there is an opposing view that considers fan fiction to be insufficiently transformative. Although the characters may be harnessed to a different story vision, or even set in an alternative universe, fan fiction is essentially a narrative reworking with key fictional elements of the original; a derivative work, not a critical work, unlike a book review. In this view, copyright owners are entitled to protect their characters against fans’ distortions. Under Canadian law, as in the US, characters from fiction or television, such as Anne of Green Gables, can be protected by copyright, provided that the characters are sufficiently creative, distinctive, thorough and complete, or constitute a substantial part of the work itself. While the Canadian Copyright Act has no explicit concept of derivative works, it does confer on artists and authors the exclusive right to control the production of their works in other mediums and adaptations. The basic question is whether a substantial amount of the source has been produced or reproduced, in any material form whatever. This would likely capture most fan fiction.
Thus the legal position of fan fiction remains precarious. Knowing this, its writers from the beginning have tended to keep their heads down, hoping that any copyright owners who notice them will see how harmless, how flattering, how socially beneficial, and even how good for business, fan fiction is. To a large extent, this strategy has worked. Fan fiction has been largely tolerated or ignored by copyright owners. For example, Gene Roddenberry, creator of Star Trek, turned a blind eye to fan fiction, and Trekkers thrived. Lucas Films, owner of Star Wars, officially permitted fan fiction after an initial cease and desist skirmish, so long as it was not sexually explicit. Media companies recognize that fans are among the most devoted viewers of their television programs, and that permitting or even fostering fan sites helps keep such fans engaged.
Media companies may judge that the promotional value of creatively engaged fans outweighs the risks of fan fiction. For individual book authors, however, the risk calculation is somewhat different. Many authors find it flattering to have readers identify so deeply with their work. Others flinch. All authors appreciate their fans. But they have a legitimate concern that fan fiction – operating in the medium of the written word, as the authors themselves do – may put their reputations more at risk. A fan, aware of the nature of the genre, might not consider a piece of fanwork to reflect one way or the other on the author of the source work. But a non-fan, innocently coming upon the same thing out of context, very well might. Now that fan fiction is readily searchable on the web, a young Harry Potter reader who stumbles inadvertently upon a fan depiction of a sado-masochistic Hagrid could have her image of him – and of J. K. Rowling – indelibly tarnished. Alternatively, a reader might assume that the source author was somehow associated with the fanwork, or approved of it. Fan fiction may potentially compromise the writer’s work in the non-fan world by connecting it with substandard writing, or with causes the author deplores. Genre fiction authors – even the big names upon whose works much fan fiction is based – are typically not well known outside their genre, and so their reputations may be more susceptible to being misjudged on the basis of fan fiction.
So where does all this leave fan fiction? It may be that its shadowy status – largely tolerated, but legally vulnerable – leaves it just where it ought to be, in a healthy state of tension between fans and authors. Because the fact is that fan fiction has so far been able to operate as a tolerated use, if not a fair use. Both parties have good reasons to accommodate the concerns of the other. No one wants to crush a fan; and fans don’t want to damage their favorite author’s livelihood or reputation. Fan fiction, particularly under Canadian law, and in view of authors’ moral rights, requires the author’s forbearance, and probably deserves a degree of that. There is a danger, in this balancing game, in taking a militant stance. What is needed is a kind of digital civility, an online code of respect in engaging with cultural works that recognizes and addresses authors’ rights and legitimate concerns. This, together with the recognition that fan fiction comes from basically ‘a good place’, should encourage authors, media owners and fans to develop a code of fair practices to define what’s fair in fandom, to allow fans to engage creatively with the works they so sincerely admire.