In Whose Back Yard?

Meta
Title:	In Whose Back Yard?
Creator:	Judith Gran
Date(s):	1981
Medium:	print
Fandom:
Topic:	Fan Fiction, Fair Use, Copyright, Fandom and Profit, Unauthorized Sequel
External Links:
Click here for related articles on Fanlore.

In Whose Back Yard? is an 11-page article by Judith Gran written in 1981. It discusses, at great length, the moral and legal issues surrounding fanworks.

It was mostly likely written in reaction to, among other things, The Star Wars Open Letter, a controversy that occurred in late summer/fall of 1981.

The article was printed in Kessel Run #2.

first page

Contents

• Introduction
• The Copyright Scheme
• Fair Use
• Character Copyrightability
• Trademark
• Constitutional Issues
• Due Process of Law
• Conclusion

For a similar article by Judith Gran, see Fan Fiction and Copyright.

Excerpts

The subject of copyright infringement evokes a peculiar schizophrenia among some media fans—an odd mixture of guilt and moralism, deference and self-justification. While it is probably easier for fans than it is for most people to carry on a civilized discussion on religion, sex, or politics, I've yet to hear a conversation among fans on copyright law that is calm, rational, and informed. Why is this so? Surely it isn't the legal issues that arouse our passion. No, I think it is because the issue of whether fan fiction is copyright infringement

is linked to some of our deepest feelings about why we write what we write, what we are doing when we write fan fiction. Many fan authors and editors, when asked if they think that writing and publishing fan fiction is an infringement of the media owner's copyrights, will reply impatiently, "Of course it is!" Coming from a typically middle- class, law-abiding fan who probably wouldn't dream of parking in a no-parking zone and probably feels guilty keeping a library book overdue, this is rather strange. Why publish it, if you think it's illegal? When asked this question, the fan publisher is likely to respond even more impatiently. "Well, no one's ever objected, and I don't think it really hurts anybody." By now the fan is probably uncomfortable enough to end the conversation right there. But an uncharitable observer, looking at the typical disclaimer on the front page of her fanzine, "There is no intent to infringe on any copyrights held by. . ." might want to press one step further. "You've just said you think fan fiction is an infringement of Media Owner's copyright. If it's infringement, and you know that it's infringement, and you publish it anyway, then obviously there is intent to infringe. You're not publishing this stuff in your sleep, after all. You are doing it intentionally, within the legal meaning of "intent." Why do you put this disclaimer in your zine? Wouldn't it be more honest to say, 'I know this is infringement, but I hope nobody minds'?" If the fan is still speaking to you by now, she might mutter something to the effect that it's only technically an infringement, since it doesn't hurt the copyright owner and since it's actually creating good publicity for them. That's an appealing idea, but like pregnancy and unlike virginity, copyright infringement doesn't come in shades of "technical" or "real." Either it's infringement or it isn't; the liability is the same.

Perhaps, before even beginning to discuss the subject of fan fiction and copyright infringement, we need to ask, "What is fan fiction?" This probably sounds silly--why bother to define something that is so obvious to all of us? To illustrate why I think it needs to be asked, I'll try to describe two equally mythical but very different STAR WARS fans.

The first fan, Lotta M. Bishon, is an aspiring professional writer-in-training. Practicing her skills and placing her writing before an audience is an important part of learning her trade. She finds writing fiction based on STAR WARS a good exercise. Writing in someone else's universe simplifies her job as a writer; she can use concepts and background and characters that are ready-made, which leaves her free to concentrate on plot, dialogue, description, and so forth. She can introduce her own characters as she begins to feel comfortable with them. She admits frankly that she's borrowing someone else's characters and universe, and she knows that she could practice her writing skills elsewhere, in a writing seminar for example, but writing in zines gives her a much wider audience and much more feedback from fans. Lotta expects to spend several years developing her skills in fanzines and then to make the leap to "pro" status. Obviously, writing fan fiction furthers her writing career.

The second fan, Fullilove Forluke, is basically an enthusiastic devotee of STAR WARS in general and of Luke Skywalker in particular. She's seen STAR WARS: A NEW HOPE and EMPIRE 30 or 40 times each and after each viewing she comes home brimming with new thoughts, fantasies, and speculations about what might have happened to the characters (especially her beloved Luke) before, after, and in the interstices of the film. She used to make these stories up in her head, but since she's met other STAR WARS fans, she finds it hard to keep them to herself any more. Fortunately, there's no need to, since her fellow fans are as eager to hear her imaginary scenarios as she is to write them. She'd never written anything very serious before, but STAR WARS makes her want to write. Although writing for fanzines has shown her how much she enjoys the craft of writing, she doesn't really aspire to a professional writing career. Perhaps she has a job already and is reasonably happy in it; perhaps she looks at her job as a meal ticket which enables her to practice her hobby.

In practice, it's rare to meet a fan who is only a Lotta or only a Fullilove. Most fan writers are a mixture of both. Even aspiring professional writers have a healthy streak of Fullilove's fannish mania in their make-up. It's hard to see why anyone would choose to write fan fiction purely out of professional calculation. Obviously, the reason many aspiring professional writers stay in fandom for so many years is that they genuinely enjoy writing about the STAR WARS characters.

At the same time, we feel a certain pressure to identify with Lotta M. Bishon, the aspiring professional writer. We were brought up on the Puritan Ethic that tells us that putting a lot of energy into something that's done purely for fun is at best a waste of time and at worst downright sinful. Professional achievement tends to be the biggest measure of personal worth in our society; and whether we consciously agree with that value or not, for the sake of our own self-esteem it is often easier to feel good about our writing if we look at it as "work."

The popular image of early media fans as "Trekkies" (i.e."groupies") probably has had a certain influence on STAR WARS fandom. We know that we're not on the same level as Donny Osmond fans, but we know that it looks a little silly to outsiders to be as enthusiastic about the STAR WARS characters and the actors who portray them as we are. Perhaps, like many women who've been taught to deal with their own "socially unacceptable" urges by repressing them, we react by turning our negative feelings inward, transmuting them into guilt feelings directed against ourselves. We affirm that what we are doing isn't really legal (mea culpa!), or we overcompensate by scrupulously adhering to the copyright owner's "rules." (It is interesting that male science fiction fans often seem more comfortable with their own fannishness than members of the predominantly female media fandoms—perhaps it is because women are relative newcomers to fandom, but perhaps it also reflects the different socialization of men and women, and the fact that it may be easier for men to accept being part of a small subculture whose interests are perceived as rather odd by the "mundane" world.) There are, perhaps, more specific reasons why some fans would rather argue that fan fiction is copyright infringement than that it is legally protected. First, there is the division within fandom over X-rated fan fiction. Many fans have strongly negative feelings about "pornographic" fan fiction, especially "gay" fan fiction. Many STAR WARS fans are veterans of STAR TREK fandom, where the K/S controversy stirred up powerful feelings among fans. Many would like to keep such fiction from being published in STAR WARS fanzines; but since no fan can police fandom, the only way it is likely to be kept out is via the authority of the copyright owner. For many fans, saying "fan fiction is copyright infringement" is simply another way of saying, "Fanzines I like are legal, but people who publish fanzines I don't like ought to be locked up." Second, some fans have important personal and professional reasons for wanting to keep on good terms with the copyright owner and the official fan organization. This is perhaps especially important for fans who see fandom as a springboard to a professional career. For others, the motivation may be simply the "ego-boo" that comes from getting the STAR WARS' producers' attention. Third, fan authors are copyright owners themselves and are understandably concerned that other fans might try to "ripoff" or distort their own creations. Some feel it would be contradictory to defend their own use of STAR WARS while at the same time attacking other fans who might want to use their own universes and characters. Of course, the use by one fan of another fan's creation is very different from the use by a fan of a mass media product. In the first case, the fan writer's ability to use her own character in future fan fiction stories and sequels is harmed. But fan fiction has no such effect on the STAR WARS' producers' ability to produce sequels to their works. And from the perspective of copyright law, this difference is crucial, as I hope will be clear as I proceed. Never the less, as I stated earlier, it is not always easy for fans to distinguish between their own "fan" efforts and "pro" writing. For some fans, the principle that borrowing from fan fiction is no different from borrowing from a mass media product is simply an affirmation of the value of their own work. If fan fiction is "real work", serious work, then logically there should be no difference between "fan" and "pro." But I do think that there is a very real functional difference between fan and pro writing, one which has nothing to do with the intrinsic worth of either.

I've gone to such great lengths in this introduction (and probably raised a few hackles along the way) because I feel that much of the recent discussion of copyright law among STAR WARS fans concerns issues that actually are not legal at all—issues that are deeper and closer to home. Nevertheless, the issue whether fan fiction is copyright or trademark infringement is a legal issue; and I respectfully suggest that readers who believe that it is infringement, acquire enough legal knowledge to support their views.

By now the reader has probably drawn her own conclusions about whether fan fiction is fair use. I'll merely add here my own analysis of this question.

The first issue is whether fan fiction is a socially legitimate activity which furthers art or knowledge. The second issue is whether fan fiction adversely affects the market of the copyright owner. Would anyone disagree that writing fan fiction is socially legitimate, and that it serves to advance literature and the arts? The intense fannish enthusiasm that leads fans to want to write fan fiction is precisely the enthusiasm the copyright owner tries to evoke when he puts together a motion picture that he hopes will be wildly successful. Without a very large number of "repeat" ticket sales, STAR WARS and EMPIRE could never have been as successful as they are. These films obviously strike a deep chord in the viewer's imagination, one that keeps her coming back again and again to the film, one which leaves her thinking and dreaming about the characters after she leaves the film, and which may eventually inspire her to write fan fiction. While there is undoubtedly an extreme of fannish enthusiasm that borders on the pathological, I very much doubt that the average fan writer has reached it. Fan fiction is basically a means of expressing fans' imaginative and emotional response to the STAR WARS films. In that it is not very different from joining fan clubs, corresponding with other fans, collecting photographs of a star, and so forth. The copyright owner can't have it both ways, can't reap the profits from the profound appeal his product has to the public, and at the same time try to limit the expression of that appeal. Does fan fiction interfere with the copyright owner's market for the "original" STAR WARS products? Although this question seems deceptively simple, actually it contains several sub-questions. The first question is whether SW fan fiction competes with anything the SW producers have actually placed on the market. Of course, it doesn't. The second question is whether it competes with anything the copyright owner is likely to want to put on the market or to license. A STAR WARS fan couldn't try to market her own STAR WARS videotapes (assuming she had received a tape as a personal gift from George Lucas — I certainly wouldn't want to think that a fan could be guilty of owning a pirated one!) on the ground that there aren't any STAR WARS videotapes currently on the market. Obviously, when the time comes, the STAR WARS producers will want to market their own. Is it likely that the STAR WARS producers will want to market fanzines at some time in the future? If so, could they make a profit from them? The answer, surely, is no. Most of the labor that goes into fanzines is unpaid volunteer labor. The price of a fanzine represents only the printing costs, postage, and other incidentals. And because fanzines seem to have a limited appeal to a small group of a few hundred intense fans of STAR WARS, the market for fanzines is limited. Economies of scale seem unlikely, given that fact. If the copyright owner wanted to publish his own fanzine, I'm sure no one would deny him the privilege — whether he could make any money from it is another matter. Actually, if there were any money to be made in zines, I'm sure that Lucasfilm and Twentieth Century-Fox would have gone into the zine business long ago. A third question is whether fan fiction competes with the "pro" SW fiction currently on the market. I doubt that it offers even minimal competition, since the fans I know all buy the commercial SW books in addition to zines. At most, a loss of 500 copies out of a market of 200,000 to over a million copies can safely be called de minimis. It could be argued, however, that by publishing their stories in fanzines, fan authors are depriving the copyright owner of the profits he could make if he were to license those stories to be sold commercially under his own copy right. Collections of fan-written stories were marketed by the STAR TREK copyright owners, of course, so it's possible to make money from fan-written stories. If the STAR WARS producers wanted to market a series of fan-written stories, like the NEW VOYAGES in STAR TREK, I'm sure they would have no difficulty at all finding fan writers who'd be eager to participate. In fact, if they accepted a fraction of the stories that would come their way, they'd quickly saturate the market. Again, I don't think there's a market for the vast out pouring of fan fiction that is currently published in zines, no matter how it is published and distributed. The STAR WARS producers certainly wouldn't want to publish everything that is published in zines, even if conceivably they might want to publish some of it. Finally, does fan fiction harm the copyright owner's market in other ways—by harming the image, prestige, and good name of STAR WARS? This seems to be the assumption behind the opposition to X-rated fan fiction—that it will hurt STAR WARS' "clean image." In a fair use case, this would have to be tested as a matter of fact (since harm to the copyright owner's market is a question of fact, for the trier of fact), and any potential gain to the market for STAR WARS from X-rated fan fiction (if, for example, it stimulated people to see STAR WARS who wouldn't otherwise have become interested in it) would have to be balanced against the potential harm. Actually, the most obvious harm to the image of STAR WARS from fan fiction is one I don't think I've ever heard mentioned among fans: poor quality. Although everyone associated with STAR WARS would probably do his damndest to prevent a bad SW film or other product from reaching the market, I've never heard anyone voice the same concern about even the most truly awful SW fan fiction. On the other hand, X-rated and "gay" STAR TREK fan fiction has been around for years and there doesn't seem to be any evidence that it has harmed the market for STAR TREK. When the movie was in preparation, I never heard of any concern that "gay"ST fan fiction might harm the movie's prospects for success. At the same time, the ST copyright owners were very concerned that a bad ST film might harm the market for their existing ST products—and as it turned out their concerns were quite justified. (It's true that K/S literature drove many ST fans out of Trek fandom, but that hurt the market for fan products, not pro products.)

In sum, I think that non-profit, amateur fan fiction, published in small-circulation fanzines as a hobby and not for payment, is fair use.

I've tried to demonstrate why I think fan fiction is fair use: because copyright law exists primarily to protect the copyright owner's commercial rights. Nor do I think fan fiction is a violation of trademark law, since there is no likelihood of consumer confusion between fanzines and "official" SW products. Fanzine readers know, if anyone does, exactly what they're reading, and they know that SW zines aren't published or sponsored by Lucasfilm. And I also think that writing and sharing fan fiction out of love for STAR WARS is a constitutionally protected activity. If this analysis seems too theoretical, there are a few practical consequences that flow from it. First,since fan fiction's fair use status stems from its non-profit character, it doesn't seem a particularly good idea to treat your fanzine as a "business." Deducting your zine expenses from your taxable income as a business loss may save you money (hopefully to be passed along to your readers), but if you claim your zine as a business loss, the presumption is that you are trying to make a profit. Pricing your zine to sell at a profit and pocketing the proceeds also doesn't seem a very good idea from the perspective of copyright law (as well as being extremely unfair to the authors and artists who've contributed so many hours of unpaid labor to the zine). Getting non-profit, 501(c)(3) status from the IRS, on the other hand, establishes that you are genuinely non-profit. Non-profit tax-exempt status certainly doesn't mean that you have to run your zine in the red, but it does mean that you can't keep the proceeds when you finally disband and stop publishing, if you ever do; you have to pass them on to another non-profit organization! (What happens when the last non-profit organization goes out of existence is a question best left to science fiction.)

I've already mentioned using a disclaimer which would protect the fan publisher against any possible charge of trade mark infringement. In the last analysis, though, fan fiction's copyright status depends on whether it is seen as work or play. If it is work, then perhaps it is unfair for the fan to use the fruits of George Lucas' labor in an effort to shorten her own. But if it is play, the question is whether, having paid for the privilege of being entertained by STAR WARS in the theatre, we can let our own thoughts about STAR WARS entertain us after we've left the theatre and returned to our own backyard. It is surprising to hear STAR WARS fans themselves advocate the notion that Lucasfilm has the right to control our our own private, creative play with STAR WARS; but perhaps these fans are simply taking the copyright owner's "exclusive rights" a bit too literally. Copyright does not give the copyright owner the right to control the intended use of his product.... Did not George Lucas produce the STAR WARS Saga in hopes that his audience would sing his songs, dream his dreams, in their own back yards as well as in the cinema? And isn't that really what fan fiction is all about.

Fan Comments

"In Whose Back Yard?" by Judith Gran is an analysis of a serious and important subject: the legality of fanzines (copyright, law, the fair use doctrine, trademarks, and so forth). With the STAR WARS "Moral Majority" hot-on-the-heels and on the lookout for "adult" fan fiction, this article is a prime subject for their recriminations. After all, it provides useful, factual information which discusses what one can and cannot do in the realm of fan fiction, realistically rather than in wishful thinking. And when all the evidence is in, it seems to be in ORGANIA's favor. Yet, after reading this article, I think that the conclusion is not so much for or against the legality of fanzines, but rather for facts vs. fancy. It is also not based on morality. And though some moral issues are raised and some questions asked, Judith does not attempt any sure-fire answers. She gives examples of reactions to some of the legal questions which arise in fan fiction, and provides well-rounded perspectives on these issues, leaving the readers to decide for themselves which way they wish to go, for or against.

Judith Gran's article was most intriguing. One could question in this line if Christopher Reeve's appearance in "Death Trap" might not adversely affect the Superman product line. After all, the character played in that production was not in the Superman image. A mention in Twilight Zone magazine did say something about "crestfallen children who came out saying Superman was a fag, " and that was why the production was R-rated. To carry the universe closer, at the showing of "Bladerunner" some friends and I attended, a few people walked out because of some of the violence. Again, this was a reason that the R rating was affixed to the film. Buyer Beware. I doubt that either of these examples will affect box office or spin-off sales of Jedi or Superman and, if such commercial productions don't affect the saleability of the product, then fan fiction could certainly not be said to fall under that spectre.

Judith Gran may be right about the legality of fanfic's copyright status ("In Whose Back Yard") but I still think Lucasfilm has the moral right to at least ask that pornography be left out. Legal and moral rights are two very different things. (Editor's note: And whose 'morality' is to decide what is or isn't pornography?)

"In Whose Back Yard" by Judith Gran was hard to follow, but when I got to the end of it, I had a better understanding of the law. It puts those so-called 'fans' who will try to censor any story not to their liking in their place.

The article is Judith Gran's on copyright. I found it not only enjoyable on first reading but also helpful in my mundane life. I was using the citations in her article to help me practice research in our law library. It was interesting in contrast to Melinda Snodgrass' copyright article in Pegasus V. They both came to opposite conclusions.