Fan Fiction v. Copyright

[Steerpike]

It's pretty hard to beat an industry norm, and it's pretty hard to argue that fan fiction isn't a norm. Unless it affects your ability to continue with your work, I don't think there's any beating it.

I can't argue in favor of every piece of fanfic ever written, but taken as a whole, I think fan fic has social value regardless of whether it is commentary or not.

Yes, and Fowler talks about some of that in the article. The "norm" argument is basically a policy position. I don't know that a Court will place much weight on it, but I think it is pretty clear that fanfic can come out on the right side of the Fair Use factors in some situations.

And, again, a point that gets lost in all of this is that many characters, ideas for settings, and the like, are not protected by copyright in the first place, so there is no Fair Use issue. Anyone is free to utilize them without having to do a Fair Use analysis, if copyright doesn't apply. If another area of law, such as Trademark law, comes into play, then you have to look at that as well.

 

[Devor]

Social value? Come now, let's not get carried away. You're telling me that not only can I legally rip off someone else's characters and worldbuilding and crap all over them however I choose, but that this practice is somehow also noble and "socially valuable"? Really? REALLY?

Well . . . yes, I do. If you go and buy a flahlight, take out the bulb and dismantle the circuitry for your home-made light-on-a-stick gadget, that has value, right? Written works aren't any different. I can dissect them for whatever personal value I want. Unless you're profiting on their lightbulb and circuitry, or somehow keeping the flashlight makers from doing so, you are creating value for yourself without stealing or causing harm.

 

[Christopher Wright]

If Shakespeare and Marlowe did it then I'm good with it.

(P.S. Shakespeare and Marlowe did it.)

 

[Mindfire]

Well . . . yes, I do. If you go and buy a flahlight, take out the bulb and dismantle the circuitry for your home-made light-on-a-stick gadget, that has value, right? Written works aren't any different. I can dissect them for whatever personal value I want. Unless you're profiting on their lightbulb and circuitry, or somehow keeping the flashlight makers from doing so, you are creating value for yourself without stealing or causing harm.

Yeah but your flashlight example could be argued to be a form of innovation. Fan-fiction is more like vandalism.

 

[Steerpike]

Yeah but your flashlight example could be argued to be a form of innovation. Fan-fiction is more like vandalism.

Again, overly broad. Writers and their writings are not a single, uniform whole. That includes fanfic writers.

 

[Christopher Wright]

Fan fiction is more like jazz. You riff off a song that already exists.

OMG JAZZ MUSICIANS ARE VANDALS

 

[Lawfire]

Well . . . yes, I do. If you go and buy a flahlight, take out the bulb and dismantle the circuitry for your home-made light-on-a-stick gadget, that has value, right? Written works aren't any different. I can dissect them for whatever personal value I want. Unless you're profiting on their lightbulb and circuitry, or somehow keeping the flashlight makers from doing so, you are creating value for yourself without stealing or causing harm.

I do not understand how creating your own flashlight (or fan-fiction) has any SOCIAL value. Personal value perhaps.

Also, if you purchased the flashlight, you could use it as you see fit. It is a tangible good. Are ideas and thoughts (characters and worlds) not intangible, and therefore different?

 

[Steerpike]

I don't know - there are a number of large fanfic communities where people write, read, and share, etc. How many people have to enjoy something before it has social value? There are also best-selling novels that are essentially fanfics, and at least one doing well right now that began as a fanfic.

 

[Mindfire]

I don't know - there are a number of large fanfic communities where people write, read, and share, etc. How many people have to enjoy something before it has social value? There are also best-selling novels that are essentially fanfics, and at least one doing well right now that began as a fanfic.

Now you're just playing semantics. It doesn't matter if those works are "essentially" fanfics or "began as" fanfic. They either are fanfics or they aren't. And it sounds more like the latter to me. Once something stops becoming a ripoff of something else and truly comes into its own, you can't use it to justify fanfic anymore really. That's trying to have it both ways.

 

[Steerpike]

Now you're just playing semantics. It doesn't matter if those works are "essentially" fanfics or "began as" fanfic. They either are fanfics or they aren't. And it sounds more like the latter to me. Once something stops becoming a ripoff of something else and truly comes into its own, you can't use it to justify fanfic anymore really. That's trying to have it both ways.

Talk about semantics...

Where is the line between when it is fanfic and when it comes into its own. Where you say it is? Or when it gets a publishing contract? That doesn't make sense. If it uses the original characters and setting, I think it is safe to call it fanfic, don't you?

 

[Lawfire]

I don't know - there are a number of large fanfic communities where people write, read, and share, etc. How many people have to enjoy something before it has social value? There are also best-selling novels that are essentially fanfics, and at least one doing well right now that began as a fanfic.

I get that part, but the flashlight comparison is different. Also, the intellectual property aspect is much different than a flashlight. I should have been more clear. I simply was not understanding the connection (flashlight) that Devor was trying to make.

 

[Mindfire]

Talk about semantics...

Where is the line between when it is fanfic and when it comes into its own. Where you say it is? Or when it gets a publishing contract? That doesn't make sense. If it uses the original characters and setting, I think it is safe to call it fanfic, don't you?

But suppose the names and setting are changed? Suppose the characters are ones nobody can really have a claim to anyway like Cinderella or Robin Hood? In these kinds of situations it's not fanfiction anymore. It's either become original work or it always was original work. Shared universes, use of public domain characters, or even changing a fanfic into an original work not dependent on the original do not count as fanfiction. Using such things as examples is a bit like saying dropping out of school should be encouraged because a few people who've done it turned into huge successes.

 

[Steerpike]

But suppose the names and setting are changed? Suppose the characters are ones nobody can really have a claim to anyway like Cinderella or Robin Hood? In these kinds of situations it's not fanfiction anymore. It's either become original work or it always was original work. Shared universes, use of public domain characters, or even changing a fanfic into an original work not dependent on the original do not count as fanfiction. Using such things as examples is a bit like saying dropping out of school should be encouraged because a few people who've done it turned into huge successes.

You have a strange definition of fanfic, in my opinion. Whether a character or world is in the public domain doesn't enter into it. Your last statement is just silly, particularly as I have neither encouraged or discouraged fanfic; the discussion was merely about the definition of it and the extent to which an author can protect it.

I think the conversation is going in circles, and I'm not convinced you are getting what I am saying. I'll leave off by just pointing out that works of literature fall along a continuum, and not into neat little packages. A work like Pride and Prejudice and Zombies is dependent upon the original work, and even employs the originals characters, and an alternate version of the setting and story line. Had it not been published by a traditional publisher, it is the sort of thing that would be right at home on your average fanfic site. I suppose we can conveniently label it as a parody if we choose. As for social value and the potential for social commentary, which work do you think would have more to say about our current society - one in which zombies have been introduced into the work, or one in which characters have been made gay? There is the potential for it in each of them, but I'd say the latter stands to be a lot more relevant.

Anyway, an interesting discussion nonetheless.

 

[JBryden88]

Fanfic is how I discovered that writing was something I wanted to do beyond just messing around. I wrote a Resident Evil fan fic, had people tell me (I was 10 or 11 at the time by the the way ) I should keep writing.

That said, IMO, if an author requests folks don't do fanfics of their work, the fans should be respectful and not do it. If I respect my favorite author, I'm not gonna write a fanfic of his work if he requests not to.