Fan Fiction in Canada

For all you fanficcers out there, an interesting take on fan fiction from the Canadian legal perspective, i.e., whether fan fic would be legal in Canada if it ever went to court there. The author suspects not and notes that in Canada (and much of the rest of the world outside the US) there’s an additional layer of complication in that the author is assumed to have a “moral right” to a work which includes some strictures on how the work (and the characters within) is to be used. There is no moral right issue in US law, of course, because we in the US don’t have morals. Or something.

The article also namechecks the Organization for Transformative Works, the group founded last year to (among other things) promulgate the idea that “fannish” works are transformative and thus legal. My thought on that last year was that it was an interesting idea but probably wrong, and at this point I’ve not seen too much that convinces me otherwise. I’ll note that no one seems to be in a rush to push a test case into the courts.

23 thoughts on “Fan Fiction in Canada

  1. I used to be really into fanfiction when I was younger. I never understood the vehement insistence among certain fen that what they were doing was “Legal legal LEGAL!” I was always like “have you gotten a C&D? No? Then why does it matter?” It’s always seemed like more of a grab for legitimacy than an actual legal argument to me.

    The law–civil law especially–is simply a means our society has of managing conflict. If the copyright holder doesn’t care that people are writing fanfic, then there is no conflict, and the law doesn’t come into it.

    Granted, it’s another kettle of fish entirely if the author does care enough to bring the law into it, but the only time I’ve seen that happen is when someone’s doing something they really do deserve a legal smackdown for–like plagiarising, trying to make money off of someone else’s intellectual property, or creating kiddieporn. And I have a hard time conjuring up any sympathy for fanficcers thus smacked.

  2. I think that ‘moral right’ bit is the actual sticking point for most authors who object to fan fiction. Short of selling the stuff (a la Lorrie what’s-her-name, the Star Wars plagiarist/copyright violator/trademark infringer), there is little argument that fan fiction is causing monetary damage: most of the stuff is so bad that nobody sane could possibly mistake it for the original.

    The objections of original creators mostly fall into the moral right category: they created the characters and setting, they put (usually) a lot of work into them, and thus it is they who should control what happens to those characters.

    I must say that I understand this position.

  3. It’s an understandable position, but in the US, it just doesn’t bear the same weight as our “moral rights” — the ones our government is forbidden to touch (speech, religion, assembly, bearing arms, etc.) — and is instead explicitly addressed as a power of Congress, who are allowed to grant (temporary) copyrights. And giving them that power implies their power to take them away. Not quite the same treatment as a “moral right”.

  4. Don’t be so sure that there are no test cases in progress, on the way to court, etc. Or even that there are no cases that weren’t pure fanfic that tell what the result will/should be of such a test case.

    No, I’m not speaking hypothetically. Muahahahahaha!

  5. There’s a very long and strong literary tradition of Fan Fic that would seem to make a case for its legality. “Wide Sargasso Sea” is essentially Jane Eyre fanfic. And “The Wind Done Gone” is literary fanfic of “Gone With the Wind.” There are hundreds of other examples of a literary author writing a new work using the characters/plots/settings of another author. Frequently the original works are still under copyright.

    Now I’m not sure how “Wide Sargasso Sea” is any different at its core than someone’s Harry Potter fanfic, except for its being published by Norton and not on Livejournal.

  6. The difference, which you breeze over (rather incorrectly) is that one is under copyright and the other is not. And in the case of The Wind Done Gone, the legal case was settled out of court with the publishers making a sizable donation to a charity of the Mitchell Estate’s choosing.

  7. As you forgot that since Charlotte Bronte deceased in 1855, her works have been in the public domain for quite some time. JK Rowling is still very much alive. Yes, that can change, and 50 years after her death in some countries, and 70-90 years afterwards in other countries, then Harry Potter fanfic will have the same equivalent status as Jane Eyre fanfic.

  8. Thanks for bring this up, by the way. I’ve never spent any time in the fan fiction community, but I have friends that write it and I find the entire thing curious.

    Looking more at the legal issues behind “The Wind Done Gone” and the Campbell v. Acuff-Rose Music, Inc. case of 1994, it seems that fan fiction could be legal if it was a parody of the original work, right? Provided, of course, the copying wasn’t “excessive.”

    But then how much is “excessive” in the court’s view? Hmm. I suspect most–but not all–fan fiction would fall into the court’s excessive category. But who can really afford to pay the lawyers to find out, eh?

  9. Indeed Mojo, this is why I suspect there’s not been a serious case about fanfic — most fanficcers are not people of means, who can pursue a case through the courts to see how it works out.

  10. And the definition of parody suggests humor and ‘making fun’ of the original. Most fan fiction writers would probably claim they are paying tribute/honoring the original work, not making fun of it. (There is a series of parodies about “Barry Trotter” – which are clearly parodies, apparently legal, and commercial.) There might be an argument for some slash fiction being parody.

    As a fan of Calvin and Hobbes, I would also like to state my pleasure to discover that The Scalzi is also a fan.

  11. I’d say it’s probably a bad idea to pursue fan fiction writers in general just because of the strange press coverage it would lead to. I doubt J.K. Rowling really wants to see a story in the newspaper talking about her lawsuit against the author of “The Erotic Adventures of Harry Potter and Porky Pig”.

    I noticed in the article that Edgar Rice Burroughs’ Tarzan books and Lucy Maud Montgomery’s Anne of Green Gables books are both mentioned. The works of both authors should be in the public domain in Canada since they’ve both been dead for over 50 years, but Anne of Green Gables is still protected by trademark law somehow. I guess it’s a good thing for English teachers everywhere that Shakespeare didn’t trademark his characters.

  12. Well, Shakespeare didn’t invent the majority of his characters. Can you trademark characters you didn’t create? (If you can, does it mean someone could trademark Shakespeare’s characters now?) Does it make a difference if they were real people – e.g. could someone trademark Richard III?

  13. The company with a trademark on Zorro didn’t create him. Nor did they ever legitimately own the copyright to them (the author first sold them to Disney). And yet, despite the fact that Zorro’s in the public domain, they still “own” him somehow. Because trademark law is one huge steaming pot of WTF Stew.

    (not that I’m bitter about that or anything. Nope. Not at all).

  14. On the one hand, I don’t think fanfic is transformative enough to get a legal pass. It’s in someone else’s sandbox, usually with someone else’s characters.

    On the other hand, I think it can be transformative enough that it’s not straight-up copyright infringement, in that fanfic writers are (often) putting the characters in situations that the original creators didn’t employ and seeing how they (the characters) react there.

    It’d make an interesting test case. Unfortunately, if you ever DO get fanfic on the stand, it’s much more likely to be of the sort as sold on Amazon by Lori whateverhernameis (as mentioned up thread) or the infamous Harry Potter Lexicon (which OK isn’t fanfic, but it’s fairly closely related) – neither of which are in any way typical of most fan-written adventures and both of which were/are awful enough to annoy the creators in several different ways, not just the copyright angle.

  15. No, you can’t trademark characters that are already in the public domain.

    As an example there was a tv show based on Hercules, the same folks also made the show Xena. Say I wrote a story about Hercules and the folks behind the show didn’t like it and wanted to sue, they’re SOL because Hercules has been around for millenia.

    But say I do something with Xena, then I’m sol because she was their creation.

    See the difference?

  16. What’s the most depressing about copyright and trademark issues surrounding fanfiction is, the more similar it is in terms of quality (or better, which is more often the case than you might think) the less likely people are to dismiss it as not-taking-money-away-from-the-original, and similarly, the more respectful the fanficcer is of the original author’s tone and intent, the less likely a “parody” or “transformative” defense is.

    So “could’ve been an episode/book/story” fics are looked at as definitely probably in violation of copyright, but total crackfic (look! They’re penguins! or “aliens turned him straight!” or that great Harry Potter fic sending up the “aliens made them do it” trope in the context of Harry/Draco), the kind that is more likely to actually be insulting to the author’s work or painful for the author or mocking in intent, can be considered parody and covered by fair use.

    Now, I’m by no means saying that parody shouldn’t be allowed, but when you consider the reasons that it is allowed–well, at least when I do, it makes me wonder why more respectful meta-as-story doesn’t also skate under. I mean, writing a Stargate: Atlantis story in which the team end up taking over Atlantis and severing ties with Earth and building a civilization and alliances nearly from scratch, and having the format be partly straight, ordinary fiction-prose and partly excerpts from scholarly journals and books way after the fact all arguing with each other over what happened and why and finally ending with texts from far enough in the future that it’s unreadable? Nope, sorry, not parody, too derivative, you can try the “transformative” defense but you’re not getting anywhere claiming it’s commentary, because it’s too serious and respectful.

    Or, to take a different kind of commentary-as-fic, “fix-it” stories which are created to fix canon, fill in gaps, take the universe in an entirely new and more satisfying direction (I currently have three Journey’s End serial fix-it fics bookmarked on my computer)–or stories meant to show how a villain became the way s/he is in canon–or stories which show how a hero could so easily become evil with the most innocent of circumstance-changes–or AU fics which ask “what if he’d reached out then instead of rebuffing him? What if she’d never discovered those letters? What if he’d picked him instead of him to go after?” and reveal all the ways things might have been different, or might have been the same after all. None of these are valid forms of commentary?

    Whereas something like Potterdammerung can get in under that defense, despite the fact that it basically gives you a point-by-point not-even-a-summary of the plot while it’s busy making random Death Eaters talk like LOLcats and so on.

    And then there’s copyright, the idea that it somehow gives you ownership of the characters you create. Well, I was always told that you couldn’t copyright ideas, only the particular expressions of them; if you’re really nervous about people talking about your particular characters and settings by name that’s what trademark is for. I’m not saying that there isn’t an ethical argument to be made over the ownership of characters and settings and world-building–media fandom has a whole etiquette built up around that idea–but I think it’s a wholly separate issue from copyright, which I don’t think was ever meant to protect authors from other people going off and writing novel and series-length works based off a short story or television episode they wrote and sharing it with other fans for free. It was never meant to stop people from thinking about other people’s characters, from imagining them in different situations or trying to redeem them (or the opposite) from their presentation in their creators’ works, from putting themselves in the stories they love or putting the characters they love in better stories.

    Really, I’ve read this conversation so many times, and I’m still not sure what the harm in fanfiction is. Commentary isn’t the bad thing; if it’s in the form of essays it’s perfectly all right. Using the universe and the characters isn’t the bad thing; there’s no author deluded enough to think that once they publish no one will ever at the very least daydream their own Mary Sue stories (or Unpublished Adventure ones, or PWP ones, or….). It’s not the sharing and the loving (and sometimes the hating) part of fic fandom, since that too is a natural part of publishing.

    It might be partly a misconception that it’s Stealing Money From the Author, which would in fact be a bad thing if there was any formal data on it (or if the tide of anecdotes didn’t lean so heavily in the “and then I went out and bought every canon publication I could get my hands on!” direction). It can’t be that authors are seriously thinking that bad fanfiction is driving people away from the canon, can it? (Because, again, even putting aside logic and any formal evidence in favor of that idea, the anecdotes weigh much more heavily on the “I’ve never seen that show in my life, but this story/these characters/that plot was so good I just had to find the canon, and now I’m hooked!” side of the scales–although that one species of anecdote more than the last has a natural selection bias in that its native habitat is in the comments or reviews for the fic in question.)

    I don’t know. I’m not a lawyer; I’m not a published author or even much of a writer; I’ve published exactly one fanfic (where maybe three people have ever read it) in a sudden fit of courage; I’m not a vidder; I consume waaaay more than I create and I lurk way more than I comment. But it’s been quite some time since this issue first brought me to Whatever, and since then I’ve gotten into media fandom, watched vids and read fics, and seen this discussion hashed and rehashed on Metafandom and non-Metafandom-linked personal LJs. And I’m still not sure I see what the harm is in fanfiction, although I can very much see the harm in banning it (or letting individual authors ban it or not, as they choose).

  17. I’ve only done two fan fictions: one for a friend to MST3k and the other for a contest by the owner (won first prize too *grin*). But, otherwise, I avoid fan fictions in general. Not to say I don’t like it when people do it for my own stuff; just about everything I write I throw under CC by-sa-nc just to explicitly allow fan fictions (in case someone wants to).

  18. I haven’t written any fan fiction since I was kid, and I certainly never thought about posting it anywhere. I admit as a kis, I loved writing fan fic or rewriting stories to end the way I wanted them to… But I think it is pretty common sense that it is inappropriate and illegal to publish work written in someone else world unless it is public domain or allowable under the copyright license. And yes, Parodies are different, but it needs to be clear to a reasonable person that it is parody. Copyright is kind of like porn, sure there is some grey area, but most people know it when they see it. Don’t steal and if you post it on the internet, it’s not for personal use, even if you don’t make a profit on it.

  19. September 2, 2023.

    If I understand my copyright law that is the day that JRR Tolkien’s works become public domain. I will be 59 then and (hopefully) still alive.

    Any tolkien fan-fic can become, legally, commercial. Since that is only 15 years into the future I wonder if the publishers have made any contingency plans for that day.

    Cheers
    Andrew

  20. Corey@ 19: I think the disconnect between people that support/don’t care about fanfiction and the people that actively oppose it is the definition of the word “steal.” Which sounds like a setup for a load of BS equivocation, but bear with me.

    To steal implies “to deprive the rightful owner of.” To steal a physical thing is to deprive them of property; to steal a file is to deprive them of earnings (in principle, at least–I don’t want to make this a DRM tangent); to plagiarize is to deprive them of credit. Fanfiction does none of these things.

    It obviously doesn’t deprive anyone of any physical property. As far as lost earnings, that’s like suggesting a fan mod for a computer game will stop people from buying the original game. Most fanfic makes no sense at all unless you’re familiar with the source material. Anyone who’s reads ‘fic but not the originals really isn’t going to buy the originals in the first place (and not in the “the software’s too expensive so I’d just go without” sort of way that people use to justify pirating photoshop–in the “I’m buying after-market drill bits I don’t own the drill for because I just collect drill bits” sort of way).

    It also obviously doesn’t deprive the original creator of credit, because fanfic writers aren’t trying to hide the fact that someone else created the world and/or characters–that’s the whole point (and honestly, few and far between are the fics that the original author would even want credit for).

    So what, exactly, is being stolen? “Control” over the characters? I’m not in the “you can’t copyright an idea, so characters belong to the fans” camp. Authors absolutely have a right to control their characters until they become public domain. But someone writing fanfic has as much impact on an author’s control over the characters as my ex’s locker room lies have on my virtue. Less, in fact, because it’s fiction, and everyone involved already knows that it isn’t true (within the world of the story or without), and that it isn’t presented with the author’s knowledge or consent.

    So when fanfic advocates say “it’s harmless,” they don’t mean “it’s just for personal use so the harm is negligible.” They mean that it’s actually not causing any harm. And even though I outgrew fanfiction years ago, I still have yet to encounter credible evidence (or even a reasonable hypothesis) that they’re wrong about that. If you have such evidence, or a logic-based argument that it’s harming authors, then I say without sarcasm that I would like to hear it.

    And wow, this comment got long while I wasn’t looking. Sorry about that.

  21. Andrew @20

    2023 is only fifty years after Tolkein’s death. I believe the United Kingdom copyright law states 70 years. So unfortunately it won’t be public domain until 2043. (Or possibly Jan 1, 2044 depending upon how the law is written.)

    Some countries (Australia, for example) are “Plus Fifty”, and foreign works may enter public domain earlier there.

  22. Corey @ 19: There is a problem with the line “you know it when you see it”. Even with porn. And the fact is, everyone has an different idea of what porn is and I’ve met people who think The Little Mermaid is soft-core porn and Disney’s Beauty and the Beast is soft-core bestiality. There are others who think they are just children’s movies. Its highly subjective on what people expect or don’t expect.

    A good example is the ESRB (an organization that rates games). According to them, naked breasts is pretty much an automatic AO, because it is basically porn to them but the MPAA will only give it an R rating for the same thing. True, they don’t come out and say it, but when you look at how they are sold (AO games aren’t sold in most stores, actually I have yet to see an AO game in a store. But, R-rated movies are sold in a lot of stores) they are treating the same thing with much different extremes.

    I remember one discussion I had at a festival. It was a mandatory community standards. One of the things they said is “common sense isn’t common”. And it isn’t really. That is why they had a workshop to identify what “common sense” is at the festival, to make sure there were no questions or excuses.

    Now, on the copyright side, I don’t think its much of a gray area, but I’m also very tolerant of fan fiction because I think its a good start into writing for some people. But, like NaNoWriMo, I think it is a starter, but not something you should keep doing in the long run.

This is the place where you leave the things you think

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s