Follow-up on Crimes of Fanfic

Lots of very interesting and generally civil discussion coming out in the Crimes of Fanfic thread, for which I am pleased. As some folks have surmised, I did in fact frame the discussion in a particular and confrontational way regarding fanfic and plagiarism, because I was interested in hearing from fanficcers and their readers on the matter, and aside from a few flubs of rhetoric on my part, it worked out pretty well. Thanks to those who participated (and who are continuing to post).

Having said that, I do have a very real concern, in that it’s clear that some portion of fanficcers actually seems to believe that writing fanfic isn’t actually copyright infringement, and that therefore it “exists in a gray area” or is actually not illegal via some interpretation of fair use. Some of this belief stems from the contention that there has not been (to the common knowledge) a copyright suit specifically dealing with fanfic, probably because a “Cease & Desist” letter is usually enough to cause the fanficcer to take down his/her fanfic so no court case is necessary. The thinking here seems to be that if a suit does not specifically address fanfic, then the legal status of fanfic is in fact indeterminate.

I can’t help but think this is a bit of magical thinking, based on the idea that fanfic is in itself a legally special class of writing (possibly under the “we’re doing this for fun” idea), which as far as I can see it’s not. It’s bound to the same injunctions and restrictions as any other piece of creative writing. Certainly US copyright law carves out protections for fair use, parody and criticism, and equally certainly some fanfic qualifies under a realistic reading of these protections. But I hazard to guess the vast majority of fanfic could not be shoehorned into these protections even under the most liberal of terms.

Now, I realize my opinion is suspect, because I am not a lawyer, and also because after yesterday’s entry, some fanficcers undoubtedly see me as the hated enemy. So I went out and about on the Web to look for bolstering of this opinion of mine from folks who have some idea of the relevant law. Our first stop is the Web site of Kevin A. Thompson, who is an intellectual property attorney with Davis McGrath LLC, and whose area of practice includes trademark, copyright, and internet issues. Here’s what he says on the issue:

Fan fiction is prevalent on the Internet, but is it legal? It turns out that’s a really interesting question. For the great majority of what is available, the answer is no… first and foremost fan fiction is almost always never authorized by the holder of the copyright in the work. Most of these stories are classified as an “unauthorized derivative work” and are therefore an infringement. A derivative work is one that is based upon one or more preexisting works. The right to create derivative works is one of the exclusive rights given to the copyright holder pursuant to statute. Infringers of federally registered works can be subject to monetary damages, including statutory damages which can range from $750.00 to $150,000.00 per work in the case of willful infringement. Plus, attorneys fees can be awarded by a judge in certain cases.

Our next stop is the Chilling Effects Clearinghouse, a repository of legal information complied by the Electronic Frontier Foundation and the clinics of various law schools, including those of Harvard, Stanford and Berekely. On the entry page the site has on fan fiction, the CEC notes that “Not all fan fiction is a violation of law,” which is of course true. However, reading ancilliary pages makes it clear that while not all fan fiction violates the law, a whole lot of it does:

Copyright owners have the right to prepare derivative works based on the copyrighted work. In most cases the right to prepare derivative works is superfluous since when this right is infringed, the right to reproduction will also be infringed. For example, if a FanFic author creates a new story about Darth Vader, the author will have infringed both the derivative right and the right to reproduce that character.

and

In order to prove copying, it must be shown that the fan fiction author copied the work (either through direct or indirect evidence), and some of the copied elements are protected and that the “audience” of the work would also find similar elements. Since FanFic authors generally do not deny that characters and settings are borrowed (“copied”), as seen in their disclaimers, it is likely that copying will be found. Then you must raise the defense of fair use.

Yes, and what about fair use? Fair use is part of the copyright setup for the purposes of (and here I’m quoting the CEC) “criticism, comment, news reporting, teaching, scholarship, or research.” While the CEC notes “There is a strong argument that many fan fiction stories are transformative since they create a different persona and set of events for the character,” this is only one criterion for a fair use defense; in any event most fanfic is not created for the purposes of criticism, comment, news reporting, teaching, scholarship and research — not every fanfic is a parody — nor, is it likely, would any competent court of law hold that your standard-issue Harry/Draco slash constitutes such (and at the very least, Scholastic’s lawyers would have lots of fun smashing that defense to pieces). I suspect that many of the fanficcers who hold “fair use” up as a shibboleth in their defense would find to their grief that it doesn’t well apply to what they do.

In sum: The large majority of fanfic is almost certainly a copyright violation; the large majority of fanfic is almost certainly illegal.

The reason to accentuate this point is not to rub fanficcers’ noses in it (“Ha! You silly, silly fanficcers! I laugh to your pathetic Harry Potter handling!”), but to dissuade fanficcers from assuming they have certain protections under the law which they almost certainly do not. Simply as a practical matter, rather than assume that their fanfic exists in a legal Schroedinger’s Court Room, where the legality of fanfic exists in an indeterminate state until someone cracks open the door and withdraws a verdict, fanficcers should work under the knowledge that most of the copyright case law suggests they do not have a legal right to produce fanfic, and proceed accordingly.

In fact, I suspect, the large majority of fanficcers do just that, which is why among other things they are admirably self-policing whenever one of their number gets it in his or her head to, say, start selling their fanfic. But clearly there are more than a few fanficcers who are under the impression that what they’re doing is legal, or at least, not so illegal that they can’t do whatever they please in someone else’s universe, with someone else’s characters. For those folks, I suspect the best solution, if they truly believe fanfic to be legal, would to make themselves a test case, so that there is an on-point copyright case involving fanfic. I don’t suggest using any universe I’ve created to do so, since I’m already on record as thinking it would be cool to have fanfic. However, I hear Anne Rice would be a fine person to test this legal theory upon.

I think fanfic is perfectly fine; I also think it’s largely illegal. I think fanficcers will be better off if they share this basic frame of mind with me.

88 thoughts on “Follow-up on Crimes of Fanfic

  1. I think fanfic is perfectly fine; I also think it’s largely illegal. I think fanficcers will be better off if they share this basic frame of mind with me.

    I think the sane ones do. That includes most fanficcers, who, I think, see themselves as engaging in a sort of harmless civil disobedience.

    However, fandom is deep and wide, and there are some crazy whirlpools in it. Lori Jareo, for example.

  2. Having nothing truly substantive to add… I just have to say that I very much enjoy the word “Fanficcer” and will henceforth insert it into my daily usage as a replacement for various curse words.

    Say it three times fast and try not to smile, I dare you.

  3. This would be where Mely’s “feral fandom” theory comes in, which unfortunately is discussed in a link that names the author discussed in the prior post. The short version is that certain fandoms have a lot of fans who had to learn fannish culture by trial and error, after stumbling on a particular fandom on the Internet and not through friends; and in big fandoms, it may be hard or impossible for social norms to be established or enforced.

    I’ve asked her if she might, when she has time, break that out into something that you’d permit to be linked here.

  4. Also, let me point out that the fair use statute actually says “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” (And “the factors to be considered shall include” an ennumerated list.)

    This is why fair use determinations are such a case-by-case thing.

    Parody is not the only way something can be fair use; it is just one of the more obvious ways.

    That said, I agree that fair use does not cover a great deal of fanfic, and since it’s such a case-by-case determination, caution is advisable.

  5. I would note that the absence of case adjudicating the copyright status of fanfic might help a fanficcer sued for “willful” infringement, the argument being that the fanficcer couldn’t truly know his/her work was infriniging absent a case.(Not that that’s a sure thing: I seem to remember a case a few years ago in which a family court judge was extorting sex from divorced mothers with threats that the mothers would lose custody. The judge was charged with violating their civil rights, a federal crime. The judge argued that because willfulness is an element of that crime, he couldn’t be found guilty because there was no case that said that using your power as a judge to extort sex was a violation of civil rights. He did not win.)

  6. Thank you for pointing this out in such a reasoned, calm manner. As a publishing professional I’m waiting for some author out there to bring suit against a fan-fic writer, just to see how it shakes out in court (trust me, I am not looking forward to the David/Goliath comparisons that would inevitably come up). Wasn’t there an incident recently where the owner of a Print on Demand press (i.e, someone who should have known better) published a Star Trek novel that was fan fiction and completely unauthorized? I wonder what will happen there.

  7. Callavere, you’re probably thinking of Lori Jareo, of whom I wrote here. She got a C&D letter from LucasFilm and as far as I know that was the end of it.

  8. The interesting thing (well, to me, anyway) about the fair use exception is that it privileges parody and commentary over purely derivative work. Which makes perfect legal sense, to my mind (yes, IAAL, although not practicing anymore and never in the IP field).

    However the fannish community traditionally privileges stories that cling closest to the tone and characterization of the source. This sets up a conflict, so that those who take the greatest liberties with the canon characters (turning them into gay penguins, or sending them back in time to the Paleolithic and photoshopping them dressed in furs and weilding stone tools), are actually more protected through the fair use exception than those writers who, one might argue, respect the source text and characterizations more.

    (This is not to say there’s no market for wacky AUs and sex romps: there totally is. There’s a market for darned near everything in fandom.)

    Some of the stories I’ve done might qualify for the fair use exception, where the story was written as an explicit response to the source text, examining or challenging a particular plot point. But because most of my stories are relatively well-grounded in canon, are not particularly sexualized, and are not parody, I’m probably more at risk than someone who randomly tells a story in which the characters from Stargate: Atlantis are, oh, cowboys in Australia.

    In sum, taking fewer liberties with the source text may get you in more trouble than if you took a lot.

    It’s an interesting conundrum.

  9. Kate Nepveu:

    “I’ve asked her if she might, when she has time, break that out into something that you’d permit to be linked here.”

    That would be lovely, Kate.

    Suela:

    “In sum, taking fewer liberties with the source text may get you in more trouble than if you took a lot.”

    Heh. Yep, that’s some irony.

  10. Suela: and I suspect, but do not know, that more authors would *prefer* fanfic that takes less liberties with their texts, if they must choose. Any authors want to weigh in?

  11. Okay, first off, i do value intellectual property laws — i’m an artist (though NOT a fanficcer!) — but i do think they’ve gone WAAAAY too far over the last hundred years or so.

    Having said that — is anyone other than me bothered by the fact that fanfic is illegal, if ALL that’s being “duplicated” are the names of characters and settings? In no other circumstance are you allowed to copyright *ideas* — so why can you copyright the *ideas* of your places and characters?

    I mean, how is fiction about Harry Potter fucking Draco Malfoy in ANY way a “derivative” work? If there’s no plagiarism — which is to say, outright copying of words belonging to the author — going on, i fail to see any compelling reason why writing fanfic SHOULD be illegal. To me, it’s another example of I.P. law gone seriously amok.

    Now, in the specific case of H.P, i believe those names are *trademarked* by J.K. Rowling – but even that should only mean you’re not allowed to misrepresent yourself or confuse people — which would cover selling, but not writing with disclaimers (and most fanfic seems to have disclaimers stating that they’re not connected to whatever person Empire is controlling the canon.)

    –Adrienne

  12. Scalzi said: Heh. Yep, that’s some irony.

    Indeed. I admit to some fascination with the concept that when (not if) fanfiction gets before a court, it will be because of something like HP explicit slash (i.e., Harry and Draco in a sexual relationship), because it’s so contrary to the general public’s understanding of the works in question. Sexualizing children’s literature must be bad!

    But despite Rowling’s distaste for it, and the public’s disapprobation, I suspect that a court would be more likely to protect that than, say, a well-written story appropriate for a general audience in which the characters behave as they do in canon.

    And, oh, the uproar that will ensue from that. The slashers will have won after all, and all the gen writers will have to go underground.

  13. Scalzi sez: “a legal Schroedinger’s Court Room

    Oh, how very droll. Fuuuuunnyy!

    Only becuase I am immersing myself in quantum theory and have Gribben’s book “Scroedinger’s Cat” sitting here next to me.

  14. Where I’m inclined to side with the fanfic authors on the legality of it (though plainly, it isn’t proven, nor tested, and consequently, the best we can say is that the law is unclear and unless you have the resources to *be* the test case, assume that it’s illegal) is this:

    As a screenwriter, I have to have multiple spec scripts in my portfolios- these are episodes I’ve written, of shows currently or formerly on-air, that I wrote on my own, without permission or rights transfer from the copyright holders. It’s not only legal for me to write a spec script of any show that ever existed on television, it’s 1) legal to copyright it with the United States’ copyright office (you have to list the owners of the characters and register as a derivative work,) 2) required to register these spec scripts to enter many *industry*-run contests 3) likewise required to register these spec scripts so the copyright holders may read and consider your work and 4) it is explicitly illegal for the copyright holders to produce your spec script unless they buy it from you and obtain the rights.
    It’s legal for me to win money, merchandise, and representation with a spec script and it’s legal (and often required) for me to register a spec script. The only thing it’s *not* legal for me to do is to professionally publish and/or produce my spec script.
    (Now, on the other hand, you can’t register a sequel to a feature film, so that just adds more confusion to the exciting mix of derivative works.)

    But it seems to me like US Copyright Law already permits derivative works with limited function- I can legally write spec scripts and copyright the original features of my spec scripts; I can share them on the Internet, and I can use them to secure employment or to gain material benefits from contests. I just can’t *sell* them, except to the original copyright owners.
    That being the case, as long as fan fiction authors aren’t selling their work (except to the original copyright owner,) it seems to me that there’s a pretty good foundation for it being legal- and the original elements ownable and defendable, like any copyright would be.

    I guess the main question is, is fan fiction substantially different from spec television scripts? Copyright law often wanders based on how many people are involved in the creation of a work. Television scripts may be considered substantially different since there are always multiple writers for a tv show (though there may be only one show creator,) whereas fiction (like feature films) tend to have a single, or a limited pool, of creators.

    Which brings us back to the beginning, it isn’t proven, nor tested, and consequently, the best we can say is that the law is unclear. But I’m not willing to say that it’s outright illegal because there are precedents that could be applied in its favor. We just don’t know yet.

  15. :Adrienne

    Where are you going to draw the line? If I write a popular book I want some sort of control over the universe I created. I want to be the one to decide if my main character should pee on Ford icons or Chevy icons. I want to be the one who makes money on the sequal, not the one who has to compete with 10 internet sequals that aren’t mine. I certainly don’t want to deal with sequals that are better than mine. Regardless of what you think of the original it is much harder having that idea than taking an existing idea and changing it.

  16. Saundra: I don’t know spec scripts from a hole in the wall, but generally speaking, neither good faith nor lack of commercial use are defenses to copyright infringement. The type of use is relevant to the fair use determination, but “I didn’t sell it” is *irrelevant* to the question of whether you infringed on someone’s copyright.

    I suspect that there may be implicit permission going on with spec scripts, but as I said, I don’t know.

  17. This reminds me of a conversation I had with my 14 year old nephew last night: no matter how much mental gymnastics you want to do, copying a CD or DVD to give to someone else is stealing. Scalzi’s right on with this: there are fair use exceptions, but apparently there are a lot of fanficcers (Lord- it is a great curseword, isn’t it?) out there who think that they’re somehow in a “gray area” when in fact they are flat out violating copyright law. I, too, am a lawyer, not practicing intellectual property, but had a class in law school with the guy who actually wrote the text book. Creators’ rights are pretty clear. If you make up a unique character or place, you have exclusive right to control the progeny of those ideas, including derivatives and assignment to others.
    And Adrienne, true, no plagiarism ensues from your example, but copyright isn’t about plagiarism. Noone would care to read my short story about how Wally Cotter and Leo Malaprop are have a sexual relationship because the scenario derives from nothing. Fan fiction is only interesting to others because the fanficcer and his or her audience have a shared context of someone else’s work. And copyright law explicitly protects the original creator’s right to further benefit from the fruits of his or her imagination. Don’t forget that most authors aren’t rich like Stephen King- ask Scalzi how many private islands “Old Man’s War” has bought him.
    That being said, the way the Evil Disney Corporation has reduced, in a Borg-like manner, everything it touches to eternally inviolate trade marked material shows that the current system leaves much to be desired.

  18. I’m an author and like Scalzi I’d be thrilled and flattered if people starting writing fanfic set in any of the worlds I’ve created. But I wouldn’t read any of it (legal advice). However, I would totally check out all the fanart. I long to have fanart!

    It’s wonderful to think that someone got so caught up in the world you created that they made art of their own in response.

    As for someone in fandom plagiarising my work I wouldn’t be thrilled, but I wouldn’t be particularly upset either. It is flattering that someone thought so much of your work that they stole it. And it’s fanfic so they can’t profit out of it and more to the point they can’t get away with it because fandom is so self-regulating.

    A while ago someone posted the first three chapters of Scott Westerfeld’s Uglies on a fanfic site claiming it as their own. It didn’t take very long before the comments were full of folks crying plagiarism and linking to where you could go buy Scott’s book.

    People wrote to Scott asking him what he was going to do about it and were a bit taken aback that he didn’t care. Thing was it had already been taken care of—by the fans.

  19. Saundra Mitchell:

    You’re discussing an accepted work practice in the film industry, which may be neither here nor there in terms of the actual copyright law. In fact, there’s on-point case law (Anderson v. Stallone, 11 U.S.P.Q. 2d 1161 (C.D. Cal. 1989)) which goes against much of what you’re saying above. I’m aware that writers register their spec scripts with the WGA and that productions companies who are signatories to the WGA are enjoined from using spec scripts without permission and payment, but registering with the WGA is not the same as securing a copyright.

    What I’m saying is that I would want to confirm with you for the purposes of this discussion that you’re not conflating registering a spec script with the WGA with registering it with the US Copyright office.

  20. Ted: Characters are protected under copyright, not trademark. Simple proof of this is that public domain work characters are in the public domain. (Trademarks can last forever if enforced.)

    Adrienen: Pre Copyright Law – I believe it wasn’t uncommon for one author to take the character of another author…and kill him off in a story. I think it should be fairly obvious why an author would rather not have their characters killed by another author.

    What do you mean that ideas aren’t copyrightable elsewhere?

    I know Art Buchwald successfully sued when his ideas were stolen for a movie. (One of the very few successful suits involving Hollywood stealing ideas.) So it doesn’t apply only to books.

  21. Like I said in my response (and sorry about the extra paragraph tags, it didn’t look like that in preview…) there’s definitely a significant legal question as to whether television scripts are legally, substantially different as works of literature than novels or feature film scripts.

    For reference, I’m referring ONLY to the copyright office. I can register notes on the back of a sugar packet at the WGA, and they themselves will admit that registering with them is tissue paper. In the case of arbitration, all they’ll say is that I did register Narry Snotter and the Quarter Soup Duke on such-and-such a date, nothing else.

    That I can’t register a feature film sequel with the Copyright Office but I *can* register a spec script seems to indicate there’s some difference in the law there, but I don’t know where, and I don’t know where you’d apply that line regarding fanfiction. It seems to me that a spec script is exactly like fan fiction, except in a different format- using other people’s characters and universes to tell a new story.

    The format and genesis issues *are* issues, and I’m not running around saying, IS TOO LEGAL! I don’t know if it is or not. But I can’t also run around and say IS NOT LEGAL because there’s room in the law to go either way.

  22. Well, things that are illegal are not usually fine, so though I sympathize with your impulse to respect copyright but encourage fanfic to exercise freedom of judgment, it’s hard to see how most fanficcers will feel better off if they share this basic frame of mind with you. No one likes to operate in a legal gray area, where the fear of a claim of wilful copyright infringement can–and frequently does–shut down new creative expression in a degree far disproportionate to the actual harm done any identifiable copyright holder.

    The Fair Use Doctrine (and Fair Dealing in the UK) is a work in progress, in a state of considerable flux, as you partly point out (though I think you somewhat misrepresent the position of the Electronic Frontier Foundation and the Chilling Effects Clearinghouse). The distinction between “transformative” and “derivative” use only dates to 1990, and has only been widely cited in decisions since around 1999.

    In the US, the Digital Millennium Copyright Act of, uh, I think 1998 makes fair use harder to assert in the digital realm than in print, but that is being challenged daily, at many levels of court and legislative action. The whole Google Books kerfuffle is likely to clarify some aspects of it and complicate others.

    It will take a long time for clarity on this to reach the courts. In fact, fanfic is unlikely ever to get tested up to the Supreme Court (and even then, no decision would be dispositive for international publishing, which is to say, all publishing these days). And fair use is by nature specific only to individual cases (its test is context-heavy) and it only comes into play as a defense after a claim of infringement is brought. Absent bright legal lines, we must turn to cultural norms for guidance. (Really, it’s better to rely on the broader culture to be our literary critics than on a bunch of federal judges who are now expected to know the difference between a parody and a satire–roll over, Harold Bloom!).

    So I’d like to turn your last argument on its head, thus:

    Let’s encourage fanficcers to assume they have certain protections under the law which they almost certainly do indeed possess. Simply as a practical matter, fanficcers should work under the knowledge that much of the most RECENT copyright case law suggests they do have a legal right to produce fanfic, and proceed accordingly.

    That doesn’t mean trying to force Anne Rice into court–her publisher wouldn’t go for it, for one thing.

    Publishers fear a test of fair use as much as fanficcers do, because there is a substantial chance that the ficcers would win a case, and then copyright holders would be in a greatly weakened position. Which is the real reason that there’s been no Anne Rice test case: As long as she (or whomever) can operate through the lesser medium of the chilling effect, the Cease & Desist letter, and the private threatening correspondence, why go to court?

    The problem with a Chilling Effect method of policing is that we are losing a lot of good new creative work in the process. The open access of the Internet is a brilliant proving ground for new creative material, and in with all the guff and terrible fanfic there is gold. But artists in every medium are cringing, pausing, removing, self-censoring, revising in the name of caution. This is not healthy for an open society, however mild and benign it may appear.

  23. Mal:

    “Which is the real reason that there’s been no Anne Rice test case: As long as she (or whomever) can operate through the lesser medium of the chilling effect, the Cease & Desist letter, and the private threatening correspondence, why go to court?”

    I daresay the reason there’s been no Anne Rice test case is not because the publishers fear a courtroom challenge but because most fanficcers make the probably-prudent realization that they can’t afford what it would cost to competently defend their fanfic against a major media corporation and/or a very rich copyright owner. Likewise, it’s cheaper for the corporations/copyright owner to hit the fanficcer with a C&D than take them to court. It’s lower order economics.

    Re: Anne Rice’s publisher — Anne Rice’s publisher doesn’t own the copyright to Anne Rice’s work, Anne Rice does. She doesn’t have to listen to her publisher if she decides she wants to sue someone for copyright infringement. Likewise, if I wanted to sue someone for infringing my copyrights, I don’t need Tom Doherty’s permission. They’re my copyrights, I can do what I want.

    “It will take a long time for clarity on this to reach the courts.”

    Not really, because most of the core issues involving derivative works and character reproduction are well established in case law, as far as I’m aware. Unless you can actually point to recent case law which directly supports your assertion that copyright law is trending toward allowing fanficcers to publish their wares, I think suggesting to fanficcers that they should assume they certain protections under the law is tantamount to telling them to play in traffic because new cars have better brakes and they’re less likely to get mowed down.

  24. This is what I was saying in the previous thread about how ‘fic writers ought to leave their sense of entitlement at the gate. Fanfiction is illegal. The copyright holder does not owe fic writers anything. People do not have any ‘right’ to mess with someone’s work just because it’s out in the public eye, and no, something becoming popular does not mean it becomes public property. It’s kind of copyright holders to close the blinds and pretend not to see us goofing around in their pool, but that doesn’t make it our pool, and it certainly doesn’t give us the right to piss in it.

    Most fandoms recognize this at a very basic level. Most fandoms are extremely vicious in their self-policing. Some HP fen… have had more issues with the concept, at least as far as I can see.

    One of the first Harry Potter fandom dramas I ever heard about was a group of HP fen crying bloody murder about their fansite getting a cease and desist. It was an NC-17 slash site (slash being fic dedicated to making canon characters gay), and they were making all kinds of homophobia accusations. I’m sure Hitler’s name was invoked at least once. The problem was the site was dedicated to slashing Hogwarts Students, which is to say, minors. The C&D clearly stated that that was the concern. I see nothing homophobic about a copyright holder telling people to stop writing smut about their fictional fourteen-year-olds. They’re damn lucky it was just a cease and disist they got, because if the feds had found it before Rowling’s lawyers did, a C&D would have been the very least of their concerns.

    More recently, there was a kerfuffle because Rowling had the ‘audacity’ to put Remus Lupin into a relationship with a woman in book six. Some (not all, probably not even most, but some) of the slash writers through a screaming fit and started making mean-spirited icons and posts about how Rowling had clearly screwed up her own canon. They were claiming that since their little sub-fandom was so dedicated, Rowling somehow ‘owed them’ or something. I was like “Wow, someone needs a good smack with a Clue-by-four.”

  25. Is Harry Potter protected by copyright law, or by trademark law?

    Both. Roughly speaking, copyright law prevents you from selling your HP fanfic, while trademark law prevents you from selling HP clothing, toys or jellybeans.

  26. Annalee’s comments reminded of Eric Burn’s commentary on fan entitlement:
    http://www.websnark.com/archives/2004/10/entitlement_and.html

    Eric’s talking about webcomic fans but the concept is the same; fans think they’re owed a voice since they’ve invested so much of themselves, even if it was in a way never intended by the author.

    The thought process behind this could be labelled the Stalker’s Fallacy, since it’s not far off – I made an investment so you owe me.

  27. I mean, how is fiction about Harry Potter fucking Draco Malfoy in ANY way a “derivative” work? If there’s no plagiarism — which is to say, outright copying of words belonging to the author — going on, i fail to see any compelling reason why writing fanfic SHOULD be illegal. To me, it’s another example of I.P. law gone seriously amok.

    Adrienne: Because it derives directly from the HP universe. It may not be canonical behaviour, but that doesn’t mean its origins are in doubt.

    I think the legal right to create derivative works falls to the original author themselves. IE. Author X wants to create a sequel to their well-loved fantasy brick, The Fnord of the Pings, and discovers halfway through that fan-ficcers have taken the characters in the direction that they had planned and which could be reasonably extrapolated from the ending of the book. At that point, if fan fic were legal, could Author X be prevented from using just the scenario he’d planned on, merely because somebody published a similar scenario on the internet first? There’s a whole host of messy possibilities here. It’s not likely that JK Rowlings would ever let Draco and Harry get it on, at least not in any official HP writings, but there are other possibilities for fan ficcers to use ideas she may have already reserved for later storylines.

  28. This is also why authors tend not to read fanfic based in their universes. They don’t want to get their thought stream polluted — or look like they’re taking ideas from others.

  29. I ran across the [author name deleted by JS] story a week or so back, and found it interesting that my first response was “that’s not fanfic. That’s wrong.”

    I don’t write or read fanfic, but the concept has never aroused anything worse than “well, that’s silly” in me — and my attitude is far more likely to be “hey, good practice.” I may not have written it down, but I spent plenty of time mentally “borrowing” Star Wars or Tolkien for my stories when I was a kid. It did them no harm, and it indirectly taught me a lot about plot and characterization. I think of fanfiction as playing. Like any game, it can be harmful if you get obsessive, but mostly it’s just a lot of fun and sometimes you learn something.

    Plagiarism, on the other hand, bugs me on a moral level. It’s not play. There’s nothing particularly fun about copying from somebody else’s book. Plagairising to make your own work look better already says that you’re taking the game too seriously… and you’re sidestepping the possible benifits, because no one ever learned anything by slavishly copying words.

    I doubt plagairism and fanfic are much different from a legal point of view, but from a moral standpoint I can see why elements of the fanfic community came down so hard on [author name deleted by JS]. She wasn’t playing the game any more. It wasn’t a silly distinction to them; it was cheating, and no one who’s really serious about their game likes a cheat.

  30. Reminder to everyone that I’ve made the executive decision not to name the author in at the center of the recent kerfuffle here on this site.

  31. *wince* My bad — I realized that after I posted, but there is no “edit” or “delete” button. Thanks for fixing it for me.

  32. Petty social politics of fangroups aside.
    There would be fewer issues if fanfic was still only on paper in a desk drawer as it used to be but thanks to the net and computers it has escaped into the wild. When you post a fanfic you are self publishing and distributing it, which is a tresspass on copyright.
    Fanfic the harbinger of wank.

  33. The best depiction of fandom is in the movie Almost Famous. Fandom, like groupie culture as portrayed in that movie, comes to exist independently of the object of the fandom. It becomes an end in itself.

    I mean, fandom has never given me an opportunity to make out with Kate Hudson and Anna Paquin, but other than that, the movie’s pretty accurate.

  34. There would be fewer issues if fanfic was still only on paper in a desk drawer as it used to be but thanks to the net and computers it has escaped into the wild.

    Yes…it’s *distribution* that often brings people into the no-go areas of copyright. Playing a mix tape for a friend in your own home: fine. (I’m assuming the archival copy protection for the creation of the mix in the first place). Giving away copies of the same mix tape to 20 of your closest friends: not fine.

    With the Internet, it seems like a fair number of people think of what they do on it as somehow private. I would view a hypothetical fanfic writer getting in trouble for something distributed through the Internet in pretty much the same light as the people getting in trouble at work for professionally inappropriate words or pictures on their personal blogs or sites.

  35. Mark K, I think that certainly holds if you mean the hypothetical fanficcer getting in trouble at work or with their pro publisher for fanfic.

    Getting in trouble in general is a different boat, because fanfic is inherantly illegal while most professionally inappropriate words and pictures are free speech.

    I know that a lot of writers who turn pro will take their fic down, especially if they’re even reasonably well-known for either their professional or their fan work. This seems like a sensible policy to me. While most copyright holders are willing to turn a blind eye to a bunch of amateur fanfic, I could see how some of them might get peeved if, say, Scalzi wrote a story in their world without asking and then linked it from his blog. But in that case they’re worried about the lawsuit, not the publishers (or so it seems to me). So that’s akin to keeping something off your personal blog for fear of a civil suit rather than because your boss might see it.

  36. I’m a fanfic reader and occasional fanfic author; as such, I have a natural bias towards thinking fanfic is and should be acceptable. But I think the weight of western tradition is with me on this one. That is, I believe fanfic has a place in western tradition.

    King Lear, considered by many to be one of Shakespeare’s greatest plays, is inspired by a story in Historia Regum Britanniae, a character in Spenser’s Faerie Queen, and another play that was published the same year Will wrote his version. The characters aren’t his, the setting isn’t his. Apart from a changed ending, the plot isn’t his, either. The words are, though; by the modern definitions we’ve been using, this is fanfic.

    Goethe’s Faust is based from Marlowe’s, Dante’s Inferno is arguably Bible fanfic, and let’s not forget T.H. White, who took the Matter of Britain and made it relevant to the Second World War. Fanfic, by which I mean the taking of ideas and characters from someone else’s story and weaving something new with them, was an accepted practice for centuries — and still is today, or what else would you consider Disney’s Beauty and the Beast, Aladdin, The Little Mermaid, Sleeping Beauty, and scores more of popular, copyrighted films?

    I doubt anyone can present a plausible argument that fanfic is immoral that doesn’t turn dozens of literary greats into evil men. While it may be illegal, I hold with those who say that the law was made for men, not men for the law, and when the law conflicts with morality, it is the law that must yield.

    (N.B. I have used Wikipedia for my research for this post. It’s not an authoritative source, but while it may be wrong in the specifics, it’s usually right in generalities. At any rate, even if one example is shown to be false, I expect I could produce two more to take its place.)

  37. In no other circumstance are you allowed to copyright *ideas* — so why can you copyright the *ideas* of your places and characters?

    Because the expression of ideas is protected.

    I really wish the people arguing with John would pay more attention to his original post, where he pointed out that he didn’t just talk to lawyers, he talked to lawyers who specialize in copyright issues. And the bottom line is that there is no reason at all to think that fanfic is legal.

    Desperately clinging to a lack of case law is foolish. Because the missing cases here are cases that would make fanfic legal.

    (By the way, it’s not simply a matter of rich, powerful authors scaring the bejesus out of poor innocent fanfic writers. Do you know how much lawyers cost? Think one would fit comfortably into the Scalzi budget?)

    As has been said above, be glad for authors who choose not to push the issue, and for fanfic communities that make sure people don’t spoil the party for everyone. But coming up with elaborate explanations as to why it really IS TOO legal isn’t merely magical thinking; it’s delusional.

  38. Buck, Mark K.:

    The legality of the mix tape (or the CD copying) depends on the jurisdiction. Making copies of the music you own for family and close friends used to be explicitly protected in Swedish law.

    Since we now have an Attorney General who’s trying to crack down on file sharing and civil liberties as if he was a part of the Bush administration, I suspect it’s no longer so.

  39. This is almost off-topic, but does anyone know of a CC-like license that would deal with the MZB problem of not being able to read fanfic based on your own work, for fear of later being sued for using someone else’s ideas? I’m specifically thinking of a license along the lines of the MPL for software, that would basically say: “You can create all the derivative works you want, but if you do so, you grant me, the author of the original work, to incorporate parts or all of those works back into my own work.”

    Of course it wouldn’t be iron-clad, since it wouldn’t apply to derivative works that COULD mount a successful fair-use defense — there’d be no need to accept the terms of the license in order to create those. But it would serve those fanfic writers who’d be tickled pink to see their ideas taken up by the original author, without any expectation of commercial gain.

    None of the off-the-shelf CC licenses seem to cover that; the closest looks like Non-Commercial Share-Alike, but all that would mean is that I, the original author, would (like anyone else) be able to create non-commercial deriviatives of any non-commercial derivatives of the original work.

    It seems like an obvious enough idea, so I’m wondering whether it’s just the CC’s GPL heritage that prevents them from offering that sort of license, or whether there’s a catch I haven’t thought of.

  40. I didn’t… you know… read the discussion or anything, but I have a strange idea, which is only barely related to actual fanfiction, save that it scratches the same itches for a slightly different group of people.

    Copyright holder (let’s say… George Lucas) authorizes a derivative work, specifically, in this case, a roleplaying game, based on one of his owned properties (Star Wars).

    Joe-Blow-the-gamemaster buys a copy of the game, and then procedes to produce works derivative of the game, of the copywritten materials, and their own family life. (A derivative work that would be called a “game module” if he were publishing it rather than just running it for his friends, and I’m only discussing the latter in this case) Can’t George Lucas sue the pants off of Joe, since he wasn’t licensed to create novel stories within the Star Wars universe?

    Now, obviously, the people who made the RPG with a legal license from Lucas would have some grounds to beat the snot out of Lucas for obliterating the value of the license they obtained, so I wouldn’t you know… suggest… Lucas do that.

    I suppose the more relevant question is: Is there any breathing room extended BY the licensee (game writer) TO their customers on account of the product that Lucas licensed exists pretty much exclusively to allow the creation of derivative works?

  41. Scott:
    Is there any breathing room extended BY the licensee (game writer) TO their customers on account of the product that Lucas licensed exists pretty much exclusively to allow the creation of derivative works?

    As I understand it, no. Someone granted permission by a copyright holder does not then have permission to grant anything based on his/her derivative work. The copyright for the specific expression remains with the original holder.

    But you have to be careful. When you’re talking about licence, you’re probably talking about trademark, not copyright. Star Wars is not a good example when talking about copyright, because everything trademarkable has been trademarked.

    Trademark law and copyright law are very different.

  42. Jon:
    Goethe’s Faust is based from Marlowe’s, Dante’s Inferno is arguably Bible fanfic, and let’s not forget T.H. White, who took the Matter of Britain and made it relevant to the Second World War. Fanfic, by which I mean the taking of ideas and characters from someone else’s story and weaving something new with them, was an accepted practice for centuries — and still is today, or what else would you consider Disney’s Beauty and the Beast, Aladdin, The Little Mermaid, Sleeping Beauty, and scores more of popular, copyrighted films?

    This is the core of the fanficcer argument: because there are similarities between some stories, because some stories borrow heavily from previous sources, then fanfiction must be ok.

    Leaving aside the fact that much of your argument is based on works published hundreds of years ago, copyright exists to protect the specific expression of ideas. It does not say that you can’t use other people’s ideas. If that were the case, nothing would ever be written, because all of us borrow from other people all the time. But it says that you can’t use the specific expression of someone else’s ideas without permission. Their ideas are not copyrightable, but the specific expression is.

    And someone else’s characters and settings are the specific expression of their ideas.

  43. John Rosebaugh:

    “While it may be illegal, I hold with those who say that the law was made for men, not men for the law, and when the law conflicts with morality, it is the law that must yield.”

    That’s sure a pretty sentiment, Mr. Rosebaugh, but as the point of copyright here in the US is to allow creators to profit from their efforts and then to offer those works to the public after a suitable time, I find the morality of copyright as a concept to be admirably well-balanced (the specifics of US copyright law could use a little tweaking. But the idea is fine).

    All the blatheration along the lines of how the Inferno is Bible fanfic sort of misses something relevant about fanfic, which is that nearly all of it is based on contemporary popular culture. Yes, someone could write, say, Jesus/Judas slash (warning: Jesus/Judas slash at that link, no joke) if they wanted to, but I think it’s safe to say that the vast majority of fanfic is of current work under copyright; if not a defining feature, it’s certainly strongly correlative.

    I agree that people have a desire to extend the stories of characters and settings they love, starting with mythology and moving forward. But fanfic and its practices are a subset of this desire, not a useful description of it as a whole.

  44. Are we still arguing about legality or have we gone back to morals and ethics? Because morally and ethically, there’s not a lot of difference between Disney, in 1937, making a film based on the Grimm brothers’ 1857 Snow White, and me, this year, making a film based on A.A. Milne’s 1926 “Winnie-the-Pooh”. Legally, though, if I tried to do that in the US I’d have my ass handed to me.

  45. Are we still arguing about legality or have we gone back to morals and ethics? Because morally and ethically, there’s not a lot of difference between Disney, in 1937, making a film based on the Grimm brothers’ 1857 Snow White, and me, this year, making a film based on A.A. Milne’s 1926 “Winnie-the-Pooh”. Legally, though, if I tried to do that in the US I’d have my ass handed to me.

    The original Snow White was not protected by copyright, for whatever reason. Milne’s original may or may not be, but if you had your ass handed to you, I’d bet it would be because of trademark law, not copyright law.

    It may or may not be immoral or unethical to use other people’s characters and settings. Personally, I lean toward the ‘not’. But it certainly is illegal, and in my opinion it IS immoral and unethical to break a clearly established law where someone else’s rights are concerned.

  46. Pat: Not really. If people want to write OMW fanfic that’s fine, but I’ll probably not look at it.

  47. On the ‘characters are ideas’ front…

    Let’s look at Harry Potter and Neil Gaiman’s Timothy Hunter and the books of Magic. Timothy Hunter, who came into being long before Harry Potter, is a British teenager with family troubles and a talent for magic. He has messy black hair and glasses, he’s lanky and awkward, and he spends at least part of the series with a scar on his forhead.

    But Gaiman, who besides being a talented author also seems like a really nice guy who likes to avoid the drama (he’s also really pret– excuse me, my fangirl is showing), has no intention of sueing Rowling over it. Even if he wanted to, he probably wouldn’t win.

    The similarities between Potter and Hunter are ideas. You cannot copyright ideas or facts because these are things people can come up with completely independantly of one another. It’s perfectly plausible that Rowling never read or saw Gaiman’s books before writing Harry Potter. One would be hard pressed to keep a straight face, however, while informing a judge that one came up with the ‘idea’ of naming a magical british schoolboy Timothy Hunter and giving him a helper named Awn The Blink completely independantly of Gaiman’s work.

    Likewise, King Arthur and Jesus are historical figures. Two people could stand in front of a judge and argue that they came up with the idea to write stories about them independantly of one another as easily as they could argue that they both got the idea to write a biography of George Washington independantly of one another. It’s only if their stories start to paralell each other in ways that can’t be explained away by common source material that the trouble starts.

  48. (Forgive me, I’m not up to date on all of the comments, so this may duplicate someone else’s point. <shrug> Here goes anyways.)

    In this post, John sez:

    Having said that, I do have a very real concern, in that it’s clear that some portion of fanficcers actually seems to believe that writing fanfic isn’t actually copyright infringement, and that therefore it “exists in a gray area” or is actually not illegal via some interpretation of fair use. Some of this belief stems from the contention that there has not been (to the common knowledge) a copyright suit specifically dealing with fanfic, probably because a “Cease & Desist” letter is usually enough to cause the fanficcer to take down his/her fanfic so no court case is necessary. The thinking here seems to be that if a suit does not specifically address fanfic, then the legal status of fanfic is in fact indeterminate.

    I see this as a symptom of the approach of today’s society to the court system. The expected (and in some cases, feared) response to any slight whatsoever, whether illegal or merely irritating, is to file suit. “Thus,” goes the thinking, “if all sorts of people are writing fanfic and not one person has been publicly sued for it, then gee, it must be perfectly fine!” Since the holders of infringed copyrights have not knee-jerk-sued, at a time when such restraint is mostly reserved for actions that represent no harm it implies to the infringers that ‘de facto law’ permits them to infringe with impunity. This perception doesn’t make the fanfic any more legal in view of actual law, but it provides the fanficcers a means to grossly inflate the legitimacy of the pursuit.

    … rather than assume that their fanfic exists in a legal Schroedinger’s Court Room …

    IMO, that’s exactly how a lot of people see a lot of vaguely squishily legal activities. Love the term, gonna have to use it more often, I think. :-)

  49. To get back momentarily to the original question of why pro authors should comment on this, I think it was ably stated during the Tiptree go round that they shouldn’t. And questions of intended audience aside, it simply always has and always will get my hackles up to see the largely male SF/F community (previous link notwithstanding) dismissing/deriding/mocking the quality/purpose/value of an overwhelmingly female endeavor and community. Full stop. The legal discussions are entirely separate, but I will never know why fanfiction writers expect pro authors to pass judgement on what are basically insular community practices, let alone want them to.

  50. Brian:

    “I see this as a symptom of the approach of today’s society to the court system.”

    That’s certainly possible, although I think another interpretation — here in the US, at least — is that there’s an assumption that what is not specifically disallowed in the law is free to do (per amendments IX and X in the Constitution). Thereby, if one doesn’t see any case law specifically relating to fanfic, then fanfic should be allow. As I’ve noted, the problem here is that fanfic is not in fact a special class of writing under copyright law.

    Light:

    “And questions of intended audience aside, it simply always has and always will get my hackles up to see the largely male SF/F community (previous link notwithstanding) dismissing/deriding/mocking the quality/purpose/value of an overwhelmingly female endeavor and community.”

    Eh. Possibly there’s an element of sexism to it in a general sense, but for me the schism really is more of a professional/amateur one than a male/female one. Also, I’d disagree that pro writers shouldn’t comment because fanfic is inherently dependent on the exertions of pro writers, so it’s a general topic of consideration for them. That said, I’d agree that most of the internal discussions and politics of the fanfic universe are not something most pro writers need to concern themselves with; for us it’s the issues of the fanfic itself that are probably more compelling.

    I think its fairly obvious why some of the fanfic folks are trying to engage pro writers/bloggers in this discussion: One, we have a (relatively) long reach and a (relative) high profile, so we can get the word out; second I suspect that having a pro writer discuss the issue is an attempt to confer some legitimacy to the discussion outside the fanfic sphere. In this respect, it’s not an issue of the pro writers looking down on fanficcers, but of them looking up. Which is an interesting dynamic for consideration.

  51. The original Snow White was not protected by copyright, for whatever reason.

    Because in 1937 the maximum term of copyright was 56 years (28 years with one 28-year renewal).

    Milne’s original may or may not be, but if you had your ass handed to you, I’d bet it would be because of trademark law, not copyright law.

    Considering that Disney has the copyright as well as the trademark, I’d be very surprised if it wasn’t both.

    …in my opinion it IS immoral and unethical to break a clearly established law where someone else’s rights are concerned.

    Um… I don’t know where to start with that. Is that opinion based on anything in particular?

  52. The copyright holder does not owe fic writers anything.

    I disagree with that, in part. Nobody owes fic writers anything specific, as a group. However, all IP creators owe their products to the public domain, after a reasonable period for them to be recompensated for their work, because all stories are inherently derivative. Disney makes dozens on movies based on stories they take from the public domain, but no one has, nor ever will, have the opportunity to create their own derivitive work from that, because nearly nothing has had its copyright expire since the 1920s. Copyright is not an inherent right, it is an artificial one, created in the Constitution (in the US) in order to advance the production of useful information. I’m in agreement with Scalzi on the current illegality of fanfic, but the current copyright system is broken, and while allowing the creation of fanfic is not one of the things that needs fixing, adjusting the term of copyright so that new stories will eventually enter the public domain and be available for future writers, just as there’s someone making their living writing Jane Austen fanfic.

  53. Oops. My previous statement was made from the discussion as it was yesterday, and I forgot to reload, and so missed all the good discussion of copyright extensions and Winnie-the-Pooh that I meant to touch on. Anyway, to me, to say that it is immoral to break a law, when the law has some very obvious flaws, oversteps the mark.

  54. John Scalzi wrote:
    I think fanfic is perfectly fine; I also think it’s largely illegal. I think fanficcers will be better off if they share this basic frame of mind with me.

    Fine with me. In my own fanfic, I’ve always written in fandoms where the authors have indicated they’re ok with fanfic. The usual request from these authors is that we just refrain from showing it to them, for legal reasons. I could see writing fanfic in a fandom where the author’s position was really not known, but I personally wouldn’t write fanfic for an author who’d asked not to.

    However, I’ve always been appalled by those in Harry Potter fandom who believe they have a Right to write HP fanfic which they could maintain in court against Rowling’s lawyers, if Rowling took offence. Uh… no.

  55. I think fanfic is perfectly fine; I also think it’s largely illegal. I think fanficcers will be better off if they share this basic frame of mind with me.

    I think the majority of fanfic writers in all fandoms would agree with you. It’s only that the few “crazies” who think otherwise tend to be the most “vocal”. I think the origin of the fanfic disclaimer helps illustrate this general line of thinking.

    “I didn’t create X, it is owned by A, B, and C, I don’t make any profit, and please oh please don’t sue me.”

    Though some people have employed a “bring it on” mentality in their stance, I think most of fandom tends to think that’s really stupid.

    Just as most fandoms tend to think that “alerting” pro writers to fanfic/fandom is generally really foolish.

    Fandom knows that you (pros) know about it. But its generally believed that the more attention that fandom draws (like the emails sent to you, for example), the more likely C&D letters will be sent out, which “ruins [fandom] for everyone”.

    Its probably a good thing you aren’t allowing people to name names – not only of the fanfic writer in question, but also the name of the individuals who contacted you. My general impression is that the HP fandom is not looking too kindly on the individuals who are trying to bring the pro world into the fray.

  56. Andrew, we’re in total agreeement on that point. I think fifty years after the author’s death is more than generous… I am not a fan of the seemingly endless extensions we give so that Disney can keep their work out of the public domain. Laws are supposed to serve the public good, and copyright expiration is certainly in the public good.

    My argument is that being devoted to a work does not give a fan rights to it any more than having a crush on someone obligates them to return the sentiment.

  57. I have nothing substantial to add to a discussion on fanfic, but I do have an opinion on criminal activity: two things have to happen to get you in trouble with the law: you have to commit a crime and someone has to press charges.

    If I write a novel called “John Perry: the Early Years,” and John (Scalzi) doesn’t sue me, then I’m free and clear. That doesn’t mean what I did was legal, only that I’m not being punished for breaking the law. My guess is that most people who write fanfic (or think it’s OK to write fanfic) are operating under the assumption that this is what will happen…

  58. Perhaps a useful metaphor for fanfic is that it is illegal in the same way breaking the speed limit is: It’s widely done, not all that serious in most cases, occasionally punished, can be avoided by not doing it, and there are clear cases where people overstep the bounds of tolerence and are quite right to be punished.

  59. FWIW, John and all, I’m pretty sure that the majority of fanfic writers are perfectly aware that their stories are at least likely to be violations of copyright. The more common mistake may be the belief that the standard disclaimer at the top of a story is useful at all in legal self-defense.

    Unfortunately, fandom is full of crazy people and poorly-informed people, because fandom is full of people. It’s very frustrating.

    Further publication of the “Hello, yes, watch yourself” message is to be lauded, in general. It’s a bit unnerving and even a bit irritating to hear it from the outside, because it’s a sign that fanfic cannot keep its butt cleavage inside the span of its trousers.

    I hate when that happens. It’s not even my particular butt, but on behalf of fannish butts everywhere, I find it embarrassing.

  60. Veejane:

    “fandom is full of crazy people and poorly-informed people, because fandom is full of people.”

    I think I love this quote.

  61. The more common mistake may be the belief that the standard disclaimer at the top of a story is useful at all in legal self-defense.

    That’s a common error. I know Rebecca Tushnet talks about it at some length in her article on fanfiction and derivative rights, but other than asserting the non-commercial nature of the work, it doesn’t really have any legal meaning. I suppose one could use it as a defense to a plagiarism claim, but since it’s generally very nonspecific, I don’t know that it would work.

    John: Veejane is also the coiner of Vee’s Law: In an unmoderated posting environment, you are only as oppressed as you think you are. We think it has legs, even if it’s not quite as pithy as Snacky’s or Godwin’s laws.

  62. And questions of intended audience aside, it simply always has and always will get my hackles up to see the largely male SF/F community (previous link notwithstanding) dismissing/deriding/mocking the quality/purpose/value of an overwhelmingly female endeavor and community.

    Oddly enough, the only pro writer I’ve heard come out against fanfic from a moral *and* legal standpoint — rather than the more common “I know you’re doing it, just don’t show me/tell me” attitude — was a woman.

    The last stats I saw on publication of speculative fiction suggested that there were more female writers than male, and the last con I went to had at least as many women attending as men. Maybe more.

    I’m as froth-mouthed egalitarian as the next girl, but I honestly don’t think there’s sexism at work in the fanfic vs. pro fic debate. The sf vs fantasy debate, now there you could at least make a case. But the current debate, no.

  63. I don’t personally see the anti-fanfic people as sexist. Don’t get me wrong– I know that the SF&F community and cons (especially cons) are full of sexism, but I don’t see the fanfic debate in those terms.

    I think there might be a bit of a lizardbrain issue that contributes to fanfic’s popularity among female fen. I realize that’s a generalization that doesn’t hold true for all writers, but fanfiction is a realm where everything you do is (a)unpublishable, and therefore success is largly irrelevant and (b)based off of other people’s ideas, and therefore not as much of an emotional risk. You can’t really ‘fail’ in fanfiction, because even in really snarky fandoms like Star Wars, you can get positive feedback no matter how incomprehensible your writing is (one of the things I’ve always found most frustrating about it). Writing fanfiction is in essence beating detractors to the punch, because whatever they say, you can answer “It’s just fanfiction,” and it’s not an insult about your own ideas.

  64. but I do have an opinion on criminal activity: two things have to happen to get you in trouble with the law: you have to commit a crime and someone has to press charges.

    Brian, you are confusing criminal law and civil law. You won’t go to jail for writing fanfic, but you might find yourself at the wrong end of a civil lawsuit. Big difference.

  65. the point still stands that someone has to sue. Which is valid– the fact is that most copyright holders just don’t care.

    The goal of any smart fandom is to make sure they don’t start caring. The best way to do that is to not pretend in any way, shape, or form that we have a right to do what we’re doing. Fans who can’t be gracious and stay off the copyright holder’s radar put the entire fandom at risk. Besides that, they’re annoying. I can’t think of a single case where a ‘fic writer tried to claim that fanfic wasn’t illegal where said ‘fic writer wasn’t also independantly obnoxious (outside of the discussion here, because I don’t actually know any of the people who’ve been posting about it here, so I’m sure any or all of them could be different).

  66. Mitch:

    a relatively common disclaimer runs something like this -

    The characters and situations portrayed here are not mine, they belong to the WB. This is a fan authored work and no profit is being made. Please do not link to this story without appropriate warnings. Please do not archive this story without my permission.

  67. I am surprised by those who consider fanfic to be intrinisically bad, when “professional fanfic” is far from unheard of in SF.

    Looking over my bookcase and pulling out the most obvious stories which derive from another author’s work, thinly veiled or not:
    - Dennis L. McKiernan’s Mithgar series is Lord of the Rings fanfic.
    - James D. MacDonald’s The Price of the Stars is Star Wars fanfic.
    - Julie Dean Smith’s Call of Madness is fanfic based on Katherine Kurtz’s Deryni series
    - Donald Kingsbury’s Psychohistorical Crisis is fanfic based on Isaac Asimov’s Foundation series
    - Neil Gaiman’s “The Problem of Susan” is Narnia fanfic.

    I won’t even mention the myriad books derivative of Arthurian tales, Robin Hood or the Odyssey.

    Calling them fanfic does not, in my mind, say anything about the quality of the work. Indeed, I think highly of several of the books I mentioned.

    However, that a parody/extension/reimagining of someone else’s work is well-written doesn’t make it non-fanfic, merely well-written fanfic. That the publishing company’s lawyers ensure that enough serial numbers are filed off doesn’t make it morally better, merely harder to get sued.

  68. “professional fanfic” is far from unheard of in SF

    It’s far from unheard of in non-SF writing, too. Look at The Red Tent, or Wicked–best-selling mainstream books that are blatant fanfic but, of course, since they’re lit’rary we don’t call them that.

    But nobody here is calling fanfic ‘intrinsically bad’; the issue isn’t whether it sucks, it’s whether fanfic is legal. Generally speaking, unless the original work is in the public domain, it’s not legal.

  69. James D. MacDonald’s The Price of the Stars is Star Wars fanfic

    That would be Debra Doyle and James D. Macdonald’s _Price of the Stars_.

    Doyle is even listed first on the cover.

    If we’re giving credit where credit is due.

  70. mythago:
    “best-selling mainstream books that are blatant fanfic but, of course, since they’re lit’rary we don’t call them that.”
    I just finished reading _An Assembly Such as This_ by Pamela Aidan, which is _Pride & Prejudice_ fanfic of very good quality. In an interview at the end of the book, she discusses the value of fanfic in reviving interest in literature.

    Case study:
    Obviously, I’ve just enjoyed some very good fanfic, thus disproving (to myself, at least) that fanfic is intrinsically bad. I can’t say that this fact will cause me to run out and read most fanfic. But then again, I’m real tough on sequels and series as well.

  71. I haven’t kept up with blogs properly for two weeks, so I’m coming into this all late and such. However, I wasnted to say two things:

    1 – Do you know they’re calling you Scuzi over on bad penny? It’s like they’re doing my job for me!

    2 – This was very useful info, thanks for doing all that ‘research’ that I never seem to get around to. I always assumed fanfic wasn’t illegal unless someone tried to sell it.

    Tempest (still keeping my eye on you…)

  72. The Angry Black Woman:

    “Do you know they’re calling you Scuzi over on bad penny? It’s like they’re doing my job for me!”

    That’s darling. Inasmuch as the last time I heard someone actually call me that was some time in the fourth grade, the fact they’re using that particular epithet tells me both the maturity level of the Bad Penny group and how seriously I need to take their criticisms, which is to say, childish and not at all, respectively.

    Also, if memory serves back 27 years or so, the proper spelling would be “Scuzzi,” with two “z”s.

    Anyway, I just took a shower. I may be many things, but at the moment “scuzzy” is not one of them. Indeed, I am dewey fresh!

  73. I seem to recall a number of fanfic writers who made it big in Star Trek pro leagues; some recent fic writers have, in the past few years, also gone on to publication writing non-Trek fiction. John Ordover (a bigwig in the Trek publishing biz) used to stop in the main usenet fanfiction newsgroup and wag his finger, especially if you mentioned him by name; we took bets on whether he actually searched usenet for his own name. He never actually did anything other than post on the evils of fanfiction, as I recall.

    Marti Noxon, whose name you will see in the credits of late-series Buffy, started out writing fanfic. Julie Fortune (which may or may not be her Real Name in Publishing) writes pro and fanfiction.

    Which is neither here nor there, in terms of being germane to the conversation of legal v. illegal, ethical or non, but it’s what I’ve been thinking while reading two long threads about fanfic here. I think perhaps people who have not been in fandom ala usenet/the internet don’t remember when the lines were blurred and it was in fact the way to find a career — David Gerrold doesn’t always write Trek, and Marshak/Culbreath probably don’t, but it wasn’t so odd to attend cons and work your way in by dint of sheer creativity.

    Any time huge sprawling discussions of legalities re: fandom come up somewhere I lurk, I think back to being 13, scribbling Kirk adventures in my notebook and drawing Spock in my geometry book, and think about my motives now, more than 20 years later — completely different. I know that I timidly entered fandom as an adult thinking no one would like my work and receiving feedback that was constructive and thoughtful, from people who have long since left fandom for original fiction publication. I wouldn’t be trying to write original fiction if not for the encouragement I found there, nor would I be able to say I write well without the help I received then.

    I know that I am in the minority — not 13-25 and seeking the approval of other people for barely-readable torrid love affairs between pokemon trainers, not Mary-Sue-ing, wanting to write seriously and working to do so with every story. There are, it seems to me, fandoms springing up like weeds everywhere, wherein the only motivation seems to be participation in pop culture; the words and grammar don’t matter so much as the ego boost and the charge of imagining sex with a boyband member. I long for the old school fandom, which wasn’t so different from a writing group — we cared about the writing, the story, and the characters. It wasn’t always a free-for-all with all the snark you could read. It wasn’t about the BNFs or the popularity contest.

    For me, it’s never been about anything but the story. Call me a fandom dinosaur. Reading this makes me feel like one.

    /nostalgia

  74. Well, fanfic has truly come into its own: there is already criticism of how kids these days don’t appreciate what fanfic is all about.

  75. Of course. You can find further information by searching for “bitter old fic queen.”

    We’re still there. Just let us get the walker closer to the screen. It’s a lot easier now that we’ve traded in the old amber CRT for the LCD.

  76. Thought I’d make use of this dying thread to give the name of yet another professional work in fanfic. If you enjoy the work of Charles Dickens (and who doesn’t? I mean, besides you), then go out and find a copy of The Quincunx by Charles Palliser. He very literally tied Great Expectations, Oliver Twist, and David Copperfield into one great novel…and somehow managed to plot the whole thing out like he was Wilkie Collins…trully a masterful work of pastiche and fanficition.

  77. I don’t remember where I saw it online, or even when I saw it, but I read once that J.K. Rowling personally has no problem with fanfiction. Warner Brothers, on the other hand, does. Joss Whedon encouraged it, and occasionally did take an idea or a line from fanfiction and incorporated it in BtVS. Anne Rice, as pretty much everyone knows, hates it.

    In one of Stephen King’s short story collections, again the title escapes me at this time, he wrote what was essentailly Sherlock Holmes fanfic. Tried his best to imitate Arthur Conan Doyle’s style, had Watson narrating it, and did a decent job of it. The fact that it existed and got published still made me crack up, though.

    And on the subject of Sherlock Holmes, the Mary Russel novels by Laurie R. King would also fall under the heading of fanfiction, since they have some of the same characters – Sherlock, Watson, and Mycroft, most noteably – in England, at least in the first few books, and continuing with exploits thirty years after the original stories ended.

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