Valdron's Take on the Legality of Fan Fiction
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| Title: | Valdron's Take on the Legality of Fan Fiction |
| Creator: | Valdron |
| Date(s): | February 23, 2000 |
| Medium: | online |
| Fandom: | |
| Topic: | |
| External Links: | full essay is here; reference link |
| Click here for related articles on Fanlore. | |
Valdron's Take on the Legality of Fan Fiction was posted to Writers University in early 2000.
Some Topics Discussed
- copyright and trademark
- fan fiction
- George Lucas
- Blake's 7
- Gene Roddenberry
- fandom and profit
- free speech on the internet
- LEXX
Excerpts
Every time you tape the movie of the week, or post a photo, or copy a newspaper clipping you're breaking the law.But frankly, most of these violations are so widespread and so trivial that it is pointless to attempt to stop or control. Fox would well be within its rights to bust down the door, confiscate tapes, and sue the pants off of everyone who's ever taped an X-Files.
But really, are they out of their minds? That's like, thirty million lawsuits. Only Bill Gates has the money for something like that.
And assuming they do it, what are their damages going to be, what can they claim for. Essentially, their claim is for injury to the product or its reputation, or for lost profits. In both cases, these may well be nil or nonexistent. Even if Fox manages to prove that John Smith in taping the X-Files for his own use may have cost them a lost profit somewhere, say $20 bucks in lost videocassette sales, or $2 bucks in lost advertising revenue from a one person drop in the ratings on reruns, its pretty likely that it wouldn't come close to recouping the court costs.
Generally, companies will not sweat small scale copyright infringements. Much too hard to police, too expensive to prosecute, and in most cases, its being done on a nonprofit, noncommercial basis so there are no damages.Still, this doesn't mean that they're happy about it. Here you can get some variation in attitudes.
Many creators or creative people feel very personally proprietary about their creations. It's their babies dammit! And they're not happy with the idea of people out there molesting it!
Paul Darrow, the actor who played Avon in Blake's 7, reportedly was very very upset about fanfiction that depicted the character he played, Kerr Avon, in homosexual couplings.
Or as fans, how would you feel about a fanfic by white supremacists that displayed Kai as a murdering and unrepentant Nazi superman. Don't like it? Think of how the beans might feel.
Babylon 5, Star Trek and Star Wars would have all arguably gone nowhere without extensive fan support, and without fan fiction, fan art, websites, fanzines, etc., which infringed copyright, but which promoted the show.In fact, there is a probably apocryphal story that George Lucas once went to Gene Roddenberry to ask him what to do about all the copyright violations being perpetrated by fans. Roddenberry is supposed to have told Lucas "Leave them alone, they'll make you rich!"
I don't know whether that is true or not, but the fan publishing, fan art, fanfic, fanzine industry was vital to the survival and popularization of Star Trek between 1968 and 1980. What did you have during that time, an animated series of 22 episodes, some novelizations by Blish and Foster, a novel or two, that was it, the franchise was producing practically nothing. It was an elaborate fan culture that sustained Star Trek for a dozen years. Without that sustenance, the succeeding four television series, thousands of episodes, documentaries, handful of movies, and reams and reams of fiction and nonfiction books would not exist.
Star Wars fans contribution is harder to measure. But in the case of Babylon 5, Straczynski from day one recognized the importance of fans and what they could do for his show, and he courted them from the begginning. Before B5's pilot even premiered, he was trying to build a movement among fans. Straczynski treated fan support as essential to building an audience for his show, he encouraged fan clubs, websites and all that entailed. Fan support may or may not have gotten his pilot commissioned as a series after a lengthy delay, it may or may not have helped him make the jump and get his fifth season. But the bottom line is that after B5 had finished his run, Straczynski boasted publicly that his show had over 300 fan run web sites on the internet. And to be fair, this probably helped to publicise and promote his show, which probably actually helped him to make his money and achieve his visions.
Recently, Paramount, Lucasfilms and Fox have been at the forefront of shutting down fans. Each of these companies have gone after people maintaining Star Wars, X-Files and Star Trek sites and with either legal threats or legal action are shutting or attempting to shut all the unauthorized sites down. Paramount has gone after publishers and writers selling unauthorized Star Trek nonfic books. They are literally declaring war on many of the activities of the fan community and saying that nothing should be done or should happen that they have not specifically authorized. Why are they doing this? Partly, its to protect their trademarks. Partly its a commercial theory. They feel that if there are a hundred unauthorized X-Files websites, that takes a lot of people away from the official site. If there was only one X-Files website out there, everyone would go to that and they'd make more money.
They feel that private fanfiction is unnecessary since the bookstores are full of Star Trek books that you should buy if you want to read. There are videotapes and audiobooks, posters, souvenirs, and products of all sorts that you should be buying from them. They feel that by choking off or driving out fan activity and fan production, excepting only that which they've sanctioned and are making bucks off, then they will make more money.And of course, there is the control issue. You will never see in any authorized Star Trek or X-Files novel the sorts of homoerotic themes and encounters (not that I'm a big fan of that sort of stuff, but it makes a
vivid example) that you find in a lot of fanfiction. You will never see Star Trek or X-Files novels doing a lot of interesting things that are done in fanfiction. That sort of thing may be good from the point of view of George Lucas, but I think that overall, its probably not so great, either for the diversity of the material or for converting the rest of us into mindless passive couch potatoes.
It must be remembered that the internet is not public but private space. Websites and email accounts are typically hosted by servers, most of which are in private corporations or universities. Public free speech is constitutionally protected, but free speech in private areas, which the internet could be defined as, is not protected.Even the servers themselves are being taken over. For instance, Time Warner and AOL have just merged. What happens to AOL fan websites devoted to properties, such as Loony Tunes, which Warner Brothers (a part of Time Warner) owns? Would it even be necessary to threaten or sue? Or would these sites simply disappear, removed by the private server which ultimately owns or is the tool of the owners of these properties?
I fear that a dark night may be drawing near, the sun of day falling away. I watch these attacks by Paramount and others on the fans, and I think that we may be seeing the beginning of the end of free speech on the internet. That the things being done there may be adapted and extended and enlarged, until the internet is only for a handful or corporations, and only for shopping and commerce, not for speech and discussion.
But perhaps I'm making too much of it...