Fan Fiction v. Copyright

[Steerpike]

An informative video for those who are interested:

 

[Androxine Vortex]

There is actually a big copyrights issue in Warhammer. There are different versions of the story but basically there was a dispute over who owned rights to a Gamesworkshop character. I forget his name but he created a Chaos God named Malal and sent it in for Gamesworkshop and they liked it and was used in several Warhammer comics and books. So technically Malal was not made by GW. But in the end there was a disagreement about who owned the rights and profits so the creator had to take all of his work back and Gamesworkshop discontinued Malal immediately.

EDIT: "Use of Malal in further Games Workshop productions ceased around 1988, the same year the first of the two Realm of Chaos background books was published. Malal is not referred to or mentioned at all in these products. There was also an uncertainty as to who actually owned the rights to the concept of Malal -- the comic's authors or Games Workshop."
-Warhammer Wiki

What is interesting is that GamesWorkshop converted the comic artist's "Malal" into what they call "Malice" and is set in the 40K setting of warhammer and not the original fantasy.

 

[Christopher Wright]

I know there are authors who HATE fan fiction. JK Rowling is one. She rambled something about her characters being her "children" and was therefore very possessive of them. I mean there are authors who HATE, HATE, HATE, HATE fan fiction and if they find out about it they'll hire the lawyers and send 'em out.

So I'm glad there's apparently some legal precedent for applying the fair use doctrine in some situations.

Of course other authors either have no problem with it, or like it, or even engage in it themselves. Cory Doctorow specifically changed his licensing over from a Creative Commons NonCommercial No-Derivs license to a CC-NC-Share Alike license in order to to specifically permit noncommercial fanfic.

 

[Steerpike]

@Christopher: Yes, there are Fair Use considerations, and even issues concerning whether Fair Use is even needed in some case. But if an author with JK Rowling's money comes after you, it could cost you hundreds of thousands of dollars to prevail even if you are in the right.

@Androxine: That raises a number of issues. The extent to which the submitted character was copyright-protected; whether someone else did the artwork for character design; whether anyone ever assigned copyright, and so on. It can get somewhat complex and the status of the work, or components of the work, can't always be resolved with certainty.

 

[Benjamin Clayborne]

I don't mind the idea of fanfic, as long as it's kept out of the public eye. The main reason is that fanfic can cause one very specific, very large problem for an author: If someone writes fanfic that contains elements similar to something the author is writing, the author now has to be concerned about charges of them committing plagiarism, or worse, force them to abandon or rewrite an entire novel (which has happened a few times to established authors).

If (Godzilla willing) I ever get famous enough to inspire fanfic of my work, I'd be flattered -- but I'd also ask that people not publish it on the Internet (not even for free).

Aside from that, I don't have a problem with it.

 

[Steerpike]

Benjamin, the interesting thing is that authors probably don't have the right to do that (ask that none of it be posted on the internet). There is a lot of Fair Use territory and also some ground that doesn't even fall under copyright where fanfic authors can operate, and there's no legal recourse for the author to stop it. If they have enough money they can just spend the fanfic author into oblivion with lawsuits, but that doesn't seem like a particularly moral thing to do.

 

[Benjamin Clayborne]

Benjamin, the interesting thing is that authors probably don't have the right to do that (ask that none of it be posted on the internet). There is a lot of Fair Use territory and also some ground that doesn't even fall under copyright where fanfic authors can operate, and there's no legal recourse for the author to stop it. If they have enough money they can just spend the fanfic author into oblivion with lawsuits, but that doesn't seem like a particularly moral thing to do.

I didn't say I was going to use legal force against them, I said, "but I'd also ask that people not publish it on the Internet (not even for free)." I certainly have the right to ask that, even if they aren't obligated to obey.

That said, fair use considers several factors, and fanfic typically doesn't (in my view) meet the standard of fair use. Fanfic is rarely, if ever, for educational purposes (although it is usually entirely nonprofit); it is usually derivative, not transformative; it almost by definition appropriates a substantive amount of material; and it can have a negative effect on the work's value (though not always, if somehow the fanfic increases the popularity of the original). I doubt that most fanfic would survive a copyright challenge, but it's not usually worth the effort for the author, because people who write fanfic don't typically have a lot of money.

Unless someone was actually trying to profit specifically off my copyrighted material, I'd probably leave them alone. Giving free copies to your friends is one thing (hey, exposure! yay!) but as soon as you start earning something tangible from it, I will summon demonic copyright lawyers.

 

[T.Allen.Smith]

That and it probably doesn't make great business sense to start attacking your most zealous fan base.

 

[Steerpike]

@T.Allen - True. That doesn't seem like a good move.

@Benjamin - Some authors do challenge it, though. I don't agree with your analysis of the Fair Use factors. Some fanfic meets your criteria, but not all of it. Some doesn't appropriate a substantial portion of the original work; it can certainly be transformative; and I find the negative effect argument to be dubious is most cases. Also, as I noted above, there may also be little or no copyright protection for certain aspects of the original work, in which case you don't even have to look at Fair Use. Also, I should note that something sold commercially can still be Fair Use. That factor is not controlling, though it can be an important one.

 

[Ravana]

Hmm.

…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.*

Since fanfic is not criticism, comment, news reporting, teaching, scholarship, or research, I can't see how Fair Use would apply to it in any way whatsoever. Other sections of copyright law may–in some cases undoubtedly do–apply to fanfic of various sorts, but not this one: it neither permits nor prohibits fanfic. Unless you can somehow pass the fanfic off as a parody, maybe… which is generally transformative, whereas fanfic is generally derivative.

(Unless you're trying to parody Terry Pratchett, in which case you'd still end up being derivative even where you were being transformative.… )

-

[* 17 U.S.C. § 107… which of course I'm reproducing under the Fair Use doctrine. Comment and teaching exemptions, obviously. Well, and assuming the U.S.C. is actually itself copyrighted… which I'm not clear on.]

 

[Steerpike]

It says for purposes "such as." It isn't an exhaustive list. Courts have applied the Fair Use analysis to fanfic cases, which wouldn't be necessary if fanfic didn't have the potential to fall under Fair Use. It is worth noting that fanfic could certainly be a vehicle for criticism or commentary as well.

 

[Mindfire]

I hate fanfic. There's a special place in hell for those who write slash fiction. -_-

 

[Steerpike]

I hate fanfic. There's a special place in hell for those who write slash fiction. -_-

Whether you like fanfic or not, we have people who write it on the forums. There is probably a more reasonable way to characterize them.

 

[Ireth]

I love writing fanfic myself, though I'm a little leery at the thought of anyone writing it for my stories. There are so many potential storylines that would go completely against the grain of the story's entire point (Ariel and Fiachra falling in love in a Winter's Queen fic, for example), or put stuff in there that is absolutely NOT there in canon (adding in relationships between the two human male leads and their female Fae companion, or - gag! - between the brothers themselves).

I now realize I sound hypocritical on that second point, since I've done much the same thing with various fanfics over the years (meaning deviating from canon, not delving into slash). But I, like Rowling, think of my characters as something akin to children, and pushing them out of the nest and into the public eye is a kind of scary thought. Then again, the only stories I've written publically-posted fanfic for are by authors long dead (with one exception) -- Tolkien and Mary Shelley. The exception is the creators of V for Vendetta, whom I assume are still alive. I do have a crossover fic in progress between two other fandoms, but as it's only just started it doesn't fall under "publically-posted" (yet, if at all).

That said, I know I can't stop lots of people from writing fanfic of my characters even by asking nicely. I guess the best thing I can do is to let it happen and make a point of reading none of it. That keeps the fic-writers happy, and frees me of any risk of being accused of plagiarizing their ideas.

 

[Benjamin Clayborne]

[* 17 U.S.C. § 107… which of course I'm reproducing under the Fair Use doctrine. Comment and teaching exemptions, obviously. Well, and assuming the U.S.C. is actually itself copyrighted… which I'm not clear on.]

Nothing the federal government produces can be copyrighted. The fed can hold copyrights assigned to it by someone else. But generally, anything produced by a federal employee (in the course of their job, that is; not private work) is automatically public domain.

As I understand it, anyway...

 

[Mindfire]

Whether you like fanfic or not, we have people who write it on the forums. There is probably a more reasonable way to characterize them.

Hyperbole for the sake of humor. I'll pitch in with Ireth in saying that my creations are dear to me and I take them quite seriously. The idea of some two-bit hack cobbling them together into a trite drama or unnatural (to the characters) romantic relationship merely to gratify their own deluded fantasies sickens me. The fact that I could be accused of plagiarism if what they write bears resemblance to a plot I had planned adds insult to injury. I can fully understand the desire to stomp out fanfiction. Especially when the grand majority of it is, quite frankly, BAD.

 

[ThinkerX]

Hmmm....

Only ever wrote one piece that might be seen as fanfic - and even then, I'm not sure. Set in the underdark of TSR's 'Forgotten Realms', involving a Drow city - though it was one which so far as I know only warrented a passing mention in the novels and rule books, no official details beyond the name. Drow culture, meaning Drow gods (though they never appeared. No named TSR characters appeared. A couple of established Forgotten Realms cities were mentioned in passing. Other TSR races did appear, and played something of a significant role. So...is it fanfic - or just a story set in the Forgotten Realms. I abandoned it two thirds of the way through when it finally dawned on me TSR would be the only possible market.

That said, some of my earlier stories relied so heavily on D&D concepts you could almost hear the dice rolling in some of the scenes - but that was true of a lot of peoples (published!) stuff back then, not just TSR. Took me a long, long time to get that (mostly) out of my system, and I still suffer relapses now and again.

 

[Griffin]

As a former fanfiction writer, I can see both sides of the argument. The question is: What is considered fanfiction and what's not? I ask this because in many english classes in the past, teachers have given assignments that asked to rewrite an ending or a scene or even expand on book we have just read. Is this kind of written material considered fanfiction because it is non-canon? Or not because it does not involve the 'gratification of deluded fantasies?"

To be honest, I see nothing wrong with fanfiction in the slightest, even if characters are slashed or turned into vampires. They're just for fun. In some cases, a form of therapy. At least, that is what it was for me back in my middle school days where I was labeled a "goth" and was bullied by peers for five long years. To simply immerse into a fantasy world where you already familiar with. A place you feel safe.

Sorry for all the nonsense. Yes, most fanfiction is written horribly, plots are overused, and why are those two guys kissing? But it is an outlet for certain fans to show their love for a fandom. A lot of these fans have serious dedication. Why would you snuff them out?

 

[Mindfire]

A lot of these fans have serious dedication. Why would you snuff them out?

Well there's the rub, isn't it? On the one hand, someone likes me who detests bad fanfiction would love to stomp the stuff out. On the other hand, that's either impossible or quite expensive to do so and you might alienate your most loyal fans in the process. It's a prickly situation. I think I might handle it by encouraging my fans to work on their own original fiction instead rather than butchering- er- appropriating my work. That way they get to grow as writers and I don't have to find stories on the internet about how my main character cheated on his wife with the king of another country between books. -_-


But I think the absolute worst thing about fanfiction is that it can lead to readers thinking they know your characters better than you do. Even to the point of making demands that you canonize their OTP, even if it makes zero sense, and then ranting and raving about how they loathe you (even though they enjoy your work?) because you're so blind to who your characters "really are" and insist on doing your own thing just to troll them. I've seen this happen amongst Avatar: The Last Airbender fans. It is BAD.

 

[Ravana]

It says for purposes "such as." It isn't an exhaustive list. Courts have applied the Fair Use analysis to fanfic cases, which wouldn't be necessary if fanfic didn't have the potential to fall under Fair Use. It is worth noting that fanfic could certainly be a vehicle for criticism or commentary as well.

Yeah, I did notice that little detail. I'd just hoped, somewhat foolishly, that no judges had. ("Foolishly," because it didn't matter the slightest if no judges ever did, since even borderline-competent defense lawyers inevitably would have brought it to their attention; genuinely competent ones would have had it in the first paragraph of their Motion to Dismiss with Prejudice, no doubt.) Doesn't mean the courts were correct in applying it that way. Of course, once one of them establishes the precedent, escaping it starts to get awfully dicey. And, of course, once parody is allowed, it can become a question of artistic interpretation whether something "counts" as parody (commentary, etc.) or not.

Which is the problem: it probably would've been better if the courts had interpreted the list as exhaustive—even if they sometimes also chose to shoehorn a particular work into one of those categories to cover it. (Naah, they'd never do that). And the reason they should have done so is because it's a lot easier to draw a line around the categories expressly named in the law than it is to draw a legally meaningful line between, say, fanfic and fiction that isn't fanfic. I'm not even sure how you'd go about trying to draw such a line. (Apart from the trivially obvious one where fanfic overtly makes use of copyrighted characters, settings, or what have you, as opposed to actually changing the names to protect the guilty.)

Conversely, if a given work performs one of those other purposes, it is covered that way regardless of form, which does away with any objection that fanfic (or anything) might be a vehicle for such purposes. And courts have seen fit to make such judgments of purpose, both in favor and against, in various cases. (Or, in other words, they may not be able to define art, but they know it when they see it. )

At the very least, courts might have recognized that fiction does not bear any direct relation to the categories enumerated; that is to say, it is not a purpose "such as" (i.e. "like," "similar to") the ones mentioned. (For that matter, the way the term is used in the law, fiction is not a "purpose," period.) Even if the list is not taken to be exhaustive, it might have been taken as exemplary… because if it's neither, it has pretty well been taken as superfluous.

But I guess they haven't. So now I can finally feel safe writing that epic I've always wanted to—the one where four midgets, a pipe-smoking witch in robes long overdue for a wash, the tin-plated secret heir to a distant kingdom, said kingdom's straw boss and the heir's chief rival for power, a vaguely leonine garden gnome with a propensity for singing lengthy songs in a Scottish accent, and a spunky undead slayer[SUP]1[/SUP] (and her little dog[SUP]2[/SUP] too) traipse off across the continent, swinging through rivers and swimming under trees[SUP]3[/SUP], battling their way past winged goblins, wrongwraiths, loquacious kudzu infestations, Flanders[SUP]4[/SUP], and the largest cockroach anyone has ever seen[SUP]5[/SUP], on a quest to wrest the mind-stealing Extremely Dark Grey[SUP]6[/SUP] Blade, Sturmundang[SUP]7[/SUP], from the evil[SUP]8[/SUP] clutches of Laird Fool, and bear it to the the Crack of Dawn[SUP]9[/SUP], where it can be reforged into a sequel and/or repackaged as a promotional toy for inclusion in Cheery Meals[SUP]10[/SUP].

What the hell… it worked for Brooks and Eddings.[SUP]11, 12[/SUP]

Don't none o' ya dare steal my idea, neither. I'll sue ya, I will.

•••

[SUP]1[/SUP] That is, she's spunky, not the undead.
[SUP]2[/SUP] Benjollum.
[SUP]3[/SUP] Or something like that.
[SUP]4[/SUP] Waiting to see who gets this one.
[SUP]5[/SUP] Outside of Florida, at any rate.
[SUP]6[/SUP] It just looks black.[SUP]13[/SUP]
[SUP]7[/SUP] German for "You gotta be ßitting me."[SUP]14[/SUP]
[SUP]8[/SUP] Actually, he's just misguided.[SUP]15[/SUP]
[SUP]9[/SUP] Professional drivel. Closed course. Do not attempt.
[SUP]10[/SUP] Contains small parts and sharp, mind-stealing objects. Keep out of children.
[SUP]11[/SUP] So why am I even worrying about it?
[SUP]12[/SUP] Oh, right: the Harvard Lampoon might still take offense.
[SUP]13[/SUP] From a distance.[SUP]16[/SUP]
[SUP]14[/SUP] Never use machine translators.
[SUP]15[/SUP] Neighbors describe him as "a quiet boy who always kept to himself."
[SUP]16[/SUP] Any distance.

•••

P.S. @Steerpike: do you know offhand the bases upon which those rulings were rendered? I'd like to think the rulings had more to do with other legal factors—presumably within the Fair Use law, wherever it was taken to be a factor—than whether or not anything intrinsic to fanfic itself constituted Fair Use. I'd like to think it… though I've long since become accustomed to disappointment.