Author Pokes Fanfic Hive! Film at 11!

The author in question being Diana Gabaldon. Naturally, Fandom Wank has the most interesting wrap-up of the tizzy, with its patented snarklicious comment threads. Also of interest: Kate Nepveu’s open letter to professionally-published authors who despise fanfic of their own works.

This is a lovely excuse for me to link once more to my own personal policy on fanfic adaptations. Not that it’s much of an issue for me; aside from the occasional one-off there doesn’t seem to be much Scalzi-based fanfic. I try not to pout about that.

144 thoughts on “Author Pokes Fanfic Hive! Film at 11!

  1. Well pfft. Now I want to go write a tender, angsty hurt/comfort fanfic involving John Perry and a Consu. Just because.

    (No, I don’t, not really. But you must admit, it would write itself! In a very, very bad way!)

  2. Heh.

    Kate seems to think authors can’t stop fanfic, but she’s wrong.

    There are several concrete steps that authors can take to discourage fanfic:

    First, no maps. If you include a map in your book, you’re only going to encourage fans to write about the guy who discovered that ‘there be dragons,’ and the adventures of their dragonkin offspring.

    Second, no genealogies. And especially avoid entries such as Lord Kieran, 23rd Marquis of the Dragonmarch.

    Background factual details create – to borrow a legal term – an attractive nuisance. The worst offender by far in this regard was CJ Cherryh’s Angel With a Sword, and the subsequent Merovingen Nights shared world anthologies, which included appendices that detailed the setting’s geography, politics, flora and fauna, and technology.

    Third, bring your C game. You want to write just badly enough that people don’t want to read your work, but not so bad that it encourages readers to do better. This is tricky, and requires an advanced mastery of the craft, but I know that you, dear author (by whom I mean any authors who may wind up reading this, and not necessarily our esteemed host in particular, who has a most rational attitude towards fanfic) , are eminently capable of pulling it off. If I may borrow an example from television, I’ll refer you to Cleopatra 2525, which, while better than it deserved to be, seemed primarily created so that Sam Raimi would have a ready supply of Sarge/Hel/Cleo slash fiction close at hand.

  3. @mythago #1

    I think angsty hurt/comfort is the only relationship possible between a Consu and… just about anybody else. Even if the other participant is an Obin.

    Personally, I have always wondered about the relationship between Hickory and Dickory.

  4. I live in California, which takes its name from a 16th century fanfic based on a series of trashy fantasy romance novels from the 14th century.

    I don’t think fanfic is going away any time soon.

  5. I just spent a very enjoyable 2 hours on a link-hopping expedition based on this post. Thank you!

  6. Like Audra, I got a great kick out of this. I had no idea fanfic was such a hot button topic, nor did I know that it was equivalent to white slavery. Learn somethin’ new every day, I guess.

    This reminds me of a dust-up on Melanie Rawn’s board some ten years ago about how it was illegal for people to use her character’s names as handles in online games and she demanded it not be done. Except… she uses a lot of common names in her work.

    I named my druid Sarra anyway. Rebel yell!

  7. Hey ho, see another one go! I see from Kate’s post that Galbadon has now posted a rather more moderate response to the oodles of incoming criticism.

    I’m firmly in the pro-fanfic camp, even though I write little or none at present because of the pressing weight of original stuff. Nice policy on your part. It’s a shame those authors who’d like to be extra liberal about it are forced by current legal doctrine to be… careful.

    Interesting point: Galbadon’s squick seems to stem partly from a kind of character-realism. I ought to sympathise with that, since I also consider characters to be more than mere literary conceits, and I’m thinking the reason I don’t is that she doesn’t take her realism far enough.

    When I tell a story, I naturally tell it from a viewpoint embedded in its world. That automatically, in my eyes, means that it’s remarkably akin to the implicit narrator’s fanficcing of local celebrities or characters of legend. The thought that other people might do the same, is then not so much squicky as obvious.

    Actually, a fair few of my characters have serious (or comedy) issues with the dumb in-world stories and versions of themselves that grow up about their early exploits. Mercedes Lackey and Mike Resnick have had rather a lot of fun with similar themes, as I recall.

    Even for the original author, the character is being written about, not written. Of course there will be other fictional instances of them! But, frankly, that Corwin/Grey Roger/Slipstick Libby slashfic isn’t really apt to have a hell of an impact on even its audience’s baseline visualization of the originals, unless it somehow brings out whole new levels of literary truth about the participants. If it does, well now…

  8. The fact that her main character was intentionally named after a Dr. Who character and the actor who played that character…priceless.

  9. aside from the occasional one-off there doesn’t seem to be much Scalzi-based fanfic. I try not to pout about that.

    Aww, you poor thing. I’d gladly read Scalzi-based fanfic. I even submitted a prompt for one at smallfandomfest a couple of days ago ;)

    I’m off to check out all the links you helpfully provided!

  10. I can understand why some authors don’t like fanfics. This is their life’s work. I respect both sides of the issue. I think Scalzi is begging for people to write fanfics. I actually think it would be more entertaining to write fanfics with Scalzi as the main character. A heroic epic about aleft wing balding middle aged writer who saves the world.

    BTW, I read the first of Gabaldon’s books and I really liked it. I also like her podcasts on her website. She is a very intelligent woman. I am a typical guy therefore I am repulsed by romance novels. When I read the amazon reviews of her books it was the 1 star reviews that got me to read her books. All her 5 star reviews were from women who were in love with the main character (they say he is the man every woman wants and every man wants to be!). Yuck chick book.
    Then the 1 star reviews didn’t like the books because it was way too violent. The violence balance out the chick/romance so it is manly enough to read.

    They are very good books. Also people should check her podcasts on her website.

  11. BKD69 @2:

    Your comment reminds me of a picture in my old history text.

    It was from the Prohibition era and was a label from some grape juice concentrate that basically said:

    “Whatever you do, don’t add yeast and store in an airtight container for 6-8 weeks. That will create wine, which is illegal.”

  12. I actually think it would be more entertaining to write fanfics with Scalzi as the main character. A heroic epic about aleft wing balding middle aged writer who saves the world.

    That’s RPF, its own category. Someday, someone cleverer than I will write Clash of the Titans-style fic with pro- and anti-fanfic authors playing the gods to anti- and pro-fanfic ‘mortal’ fans, arguing about this on the Internets.

    Thanks for being sane about fanwork, JS. I’ll keep you in mind for Yuletide, I promise!

  13. Guess:

    “I think Scalzi is begging for people to write fanfics.”

    Heh. Not really. You can’t make people love your universe like that. They either do or they don’t.

    As for the real person fiction, well, er, yeah. I spend all my time facing a computer. It’s not that exciting.

  14. Gray @8, you may be thinking of trademark. Legally, if you own a trademark you’re required to be an asshole about other people using it without permission, or you may lose the power to enforce the trademark later. Not so with copyright. Let a thousand homoerotic BDSM Rraey tales bloom*, and it impacts Scalzi’s ability to enforce his copyrights not at all; he can still go after the bozo who is self-publishing The Captain And His Consu Mistress and selling it on Amazon.

    I understand the emotional reaction to fanfic – feelings of misappropriation, the fact that some of it is poorly written AND clueless (“Yes, I know that I’Thakil is a gentle celibate pacifist but I wrote this totally hot scene where he goes nuts and erotically tortures Gary Stu!”), but happily, it’s easy enough not to read it.

    *or, you know. Don’t. Please, for the love of Ubizmo, don’t.

  15. JS does have that seekrit project thing going on…maybe we could invent an exciting fanrific seekrit life for him.

    Let’s see…

    Ohio Scalzi the famous terrorist hunting, xeno-archaeologist sipped his diet Coke-Zero while trying to puzzle out the glyphs on the metal fragment before him. One certainly appeared to be porcine; and the next looked something like a cast iron griddle. If only he could decipher this mystery…

  16. I immediately thought of Henry James, who — I recalled reading — was inspired by characters in Geoge Eliot’s books. And looking for a source to back up my memory, I found this paper. The abstract is amusing in the light Gabaldon’s reaction.

    Abstract: Less than a decade after Henry James reviewed George Eliot’s Middlemarch, finding Dorothea “too superb a heroine to be wasted,” he rewrote the plot with an altered ending — but the same characters, and identical imagery in two pivotal scenes — to reshape it into The Portrait of a Lady. Juxtaposing these two related works better reveals the issues at stake in the heroines’ characters and in the human emotions involved.

    More examples of famous “fanfic” here

  17. @Scalzi #16
    As for the real person fiction, well, er, yeah. I spend all my time facing a computer. It’s not that exciting.

    I bet that’s what Bryan Garcia in San Jose says!!!

  18. I was lucky enough to meet Diana Gabaldon at a conference last year, and I found her to be a lovely person, warm and unpretentious. Whether or not you agree with her conclusions about fanfic, I think she presents her case in a moderate, friendly, and reasoned manner.

  19. I seem to vaguely recall scalzi appearing in a webcomic, that’s pretty close to RPF anyways…

  20. @Gray Woodland I too can sympathize with the character realism thing. I mean, it’s writing, and writing is a very personal act. In some sense those characters are you. These authors just need to accept that the characters people write about in fanfic are no more the characters in their own text than an actor in a movie is actually the historical figure he or she is portraying. They may walk the same, they may talk the same, but they aren’t the same: they’re a combination of the portrayer and the portrayed.

    The best part of fanfic is the creative community that springs up around it. I think that is art at its most fundamental level, the sharing and reinterpretation of ideas.

  21. You know, I kind of don’t get the angry-ness about fanfic. I mean, I get the “Respect my copyright and livelihood”, yeah, duh, but…

    Dude. You have FANS. That love something you’ve done so much that they spend hours and hours trying to stretch it out just a little longer. How is that not just insanely flattering and ego-puffing and humbling all at once? To have your brain-babies so loved by strangers?
    Even if the art sucks, it comes from a place of love, you know?

    *shrug* Whatever. I’ll just go soak up the snark on both sides now. =)

  22. You know, if nothing else came of this debacle, I found two new authors to read. (NOT Ms Gabaldon, btw.) This is most fortuitous, as I’ve just finished the last Discworld novel. *woe*

  23. Hey!

    I’ve never heard of you before today and I was linked in one of the (… many, many) places that’s currently abuzz with the Diana Gabaldon Issue, but I must say.

    Dude, I will now be buying your books. I’m one of those Aspiring Writers you hear so much about that got their start writing fanfic, and I hope I can be as badass as you when I can finally write the word ‘author’ beside my name in more than wishful crayon.

    In the meantime, rock on with your bad self, and cheers to your future endeavors.

  24. You know, John, you might not get fanfic based on your written work, but I’m sure there’s got to be some SGU fanfic out there, especially given that SG-1 and SGA were enormously popular among fanfiction writers.

    But of course there must be a slash pairing. If you didn’t provide a slash pairing, you’re much less likely to get ficced. (Said pairing preferably to be composed of two attractive white males between 20 and 40, with a bantery or frenemies-type relationship.)

  25. @29, so what you’re saying is that the doctor and the colonel would be perfect if they were 15 years younger

  26. A bright light warmed Samantha’s eyelids. She never thought to see another day after the waves broke thru the ship, flinging her into their salty embrace. Distant bird calls drew her closer to consciousness with each exotic peep and caw.

    Samantha opened her eyes and gazed about the beach where she lay.

    “Oh my heavens,” she wondered aloud. “I have fallen into a paradise.”

    “No, my lady,” a husky but calm voice spoke to her from behind the log she rested against. “You have but fallen asleep in the ocean and awakened here in my lair.”

    Samantha gasped and turned to find a handsome, bearded stranger with a devilish grin and a typing hand gazing warmly into her green eyes.

    “I am John the Scalzi, pretty lady. And who might you be?”

  27. @30, well, I did say “preferably”. The big slash pairing in SG-1 was Jack O’Neill/Daniel Jackson, and O’Neill was (IIRC) in his mid-40s when the show started. But hotness can trump ageism; it rarely seems to trump racism, sadly.

  28. @ bkd69 – heh. You’re new, aren’t you? Only way to stop fanfiction of something?

    Never create it in the first place.

    Seriously. Guaranteed, about thirty seconds after some caveman drew stick figures on the wall, another one was writing fanfic on the wall opposite.

  29. @lanta

    yesss, I’m sure she does. Thing of it is, these days? Slash is the big kid on the block. Particularly in Stargate fandom.

    (though, really, I haven’t seen much of an SGU fandom at all. Between the, er, um, well, yeah the early episodes *cough* and, the bad blood with the producers, a lot of the previous Gateverse fans – SG1 and SGA – aren’t really watching and, of the two, the SGA fans were the behemoths of fic writing)

  30. @23 – lucyp she might be the nicest lady possible, however, when she made the comparisons and inferences she did of fanfiction and the people who write it, she made a HUGE mistake and insulted a lot of people (some of whom are actually her fellow professional writers, so she might not have much fun at the next conference she attends) so, no, not so much with the reasoned.

    Reasoned implies, for one, you don’t equate fanfiction with violent/criminal assaults or the people who write it with being perverts. (Which, yes, she so very much did)

  31. You know what I don’t understand? Why anyone who has the desire to write something would spend hours upon hours of valuable writing time on something you will never be able to sell. You might not even get to post it.

    I want to be a pro writer. I don’t have time to pursue silly things like playing in someone’s world. If you are that hot about spending time writing. Do yourself a favor and get creative.

  32. Christopher 38: Not all people who write want to earn a living doing so, any more than all people who cook want to be professional chefs. Many people practice crafts, including writing, solely for the fun of doing them and sometimes sharing them for free.

    Also, many pro writers write for both fun and profit. John Scalzi, for instance, blogs largely if not solely because he enjoys blogging. A number of pro writers write fanfic for fun.

    It’s fine if you prefer to devote your own writing time solely to saleable material. But it’s a bit killjoy to criticize other writers for enjoying themselves. There’s nothing actually wrong about doing things for reasons other than to make money.

  33. Actually, John and his computer-sitting are just the cover activity concealing the identity of the real secret agents — The Cat Trio — and their master Kodi.

  34. Christopher:

    “Why anyone who has the desire to write something would spend hours upon hours of valuable writing time on something you will never be able to sell.”

    Leaving aside the cogent point that this describes most writers’ first three or four novels, I’ll note that I, not exactly squishy when it comes to monetizing my writing, very recently spent several weeks writing a novel that it was entirely possible I might not have been able to sell. You may recall me chatting about it.

    Point is, there’s nothing wrong writing for reasons other than money.

  35. you don’t equate fanfiction with violent/criminal assaults or the people who write it with being perverts.

    All of copyright has been inundated for centuries with really bad and misrepresentative metaphors. Make a copy of a work without permission and you’re most commonly referred to as a pirate, a class of character who in the real world was generally known for physical violence.

    The only difference here is that the person making the misrepresentative metaphor doesn’t have the law on her side in this particular example.

    i.e. fan fiction has some degree of legal sanction protecting it.

  36. John at 42: Point is, there’s nothing wrong writing for reasons other than money.

    And this would be one of the reasons I keep coming back here; because John gets it.

    Lanta at 34: Yes, I do in fact know that. (Kids these days, what do they teach them?)

  37. @Mythago: Although, to be safe, if you ignore your copyright share in works that are being sold for money for several decades the courts may just decide to impose laches because they don’t want to have to get into an accounting – see the Ninth Circuit’s ruling in Danjaq LLC v. Sony Corp, in which the guy who helped to write the screenplay for Thunderball (which established a lot of James Bond tropes) sued Sony for royalties on a lot of subsequent Bond films. However, I’m guessing that the courts won’t expand this reasoning to fanfic.

    (I apologize for the legal derail, everyone.)

  38. You know what I don’t understand? Why anyone who has the desire to write something would spend hours upon hours of valuable writing time on something you will never be able to sell.

    It’s the same reason people build the Eiffel Tower out of Legos or play World of Warcraft online for 72 hours at a stretch — because it scratches an itch.

    The thing is, there seem to be two distinct “itches” extant in the realm of storytelling. Some people have an itch for what I’d call “personal creation”; they write what we refer to as original fiction (mostly in prose form), sometimes for money and sometimes not. Others have an itch for “shared creation”, which manifests in a variety of forms — D&D roleplaying campaigns and fanfiction on the non-commercial side, and mediaverse franchise fiction (superhero comics, Star Trek and Stargate, etc.) or “shared worlds” (Wild Cards, Eric Flint’s 1632/Ring of Fire milieu) on the for-profit side.

    Some writers of original fiction seem not to understand the “shared creation” itch at all (Anne Rice, Robin Hobb). And some writers in the professional mediaverse (notably Lee Goldberg) seem not to understand that shared-creation sandboxes are, in the Internet age, kind of inherently fuzzy at the edges. [This is becoming truer all the time, as more fanfic-aware writers have been infiltrating Hollywood over the last decade or so, and the mediaverses themselves have begun to interact more openly with the fanfiction world.]

    But the itch is still there, and as Kate’s letter observes, it isn’t one that can be unscratched.

  39. lucyp @23: As m @37 pointed out, Ms. Gabaldon wasn’t really all that polite, analogizing fanfic authors to a creepy middle-aged stalker telling a mom about his desire to get it on with her young daughter. She made a very questionable argument regarding how fanfic should perhaps be swept away because it’s mostly not very good, and besides, a lot of it is porn. She also played fast and loose with the illegality of fanfic, making a black-and-white statement about it being illegal when the truth is far more messy.

    In short, I don’t think she was either very polite or making very good arguments. I’d have much rather she left it at, “Please don’t write fanfic about my books. I don’t like it.”

  40. I don’t think she was either very polite or making very good arguments.

    Well, her grasp of the technicalities of the law regarding copyright is weak, that is true. But if we’re gonna hang people for being impolite, then you’ve got to hang all the dogs in the pile the same as the rabbit.

  41. Cofax, thanks for that link; I’d lost it!

    I garden, I write (fanfic, although none lately, and nonfiction of a sort) I get paid for neither. Of the two, writing is at least indoors and not under the demands of the weather.

  42. :( awww don’t pout! Maybe I’ll end up writing something after I go pick up one of your books! And thank you for your calm, rational response to fanfiction. It’s good to know someone gets why we write it.

  43. Christopher @38, given the success actual pro writers have had with “playing in someone else’s world” – see, e.g., Wicked – you’re setting your snobbery over succeeding as a pro writer.

    Maureen @45, absolutely. Charles Stross talks about this in his bit on fanfic. But the mere writing or posting of fanfic doesn’t dilute the copyright, whereas using a trademark weakens the trademark even if no money is involved.

  44. Greg @48: I was responding to lucyp’s statement, “I think she presents her case in a moderate, friendly, and reasoned manner.” I disagree with the last two descriptors.

  45. mythago: using a trademark weakens the trademark even if no money is involved.

    This aspect of the law makes some trademark owners lose their damn minds. I don’t like trademark law at all. I’m not sure how it could be reformed, other than to say the only trademark you can have is your company name. Trademarks are supposed to be adjectives, I think, or proper nouns that modify a common noun. So instead of just any ol’ regular bit of tissue paper you have Kleenex(tm) tissue paper. If I recall the law properly, if people start using the word “Kleenex” by itself, then it no longer is a trademark indicating what kind of tissue paper, it has become diluted to a common noun.

    And if the owner doesn’t demonstrate an active effort to stop trademark infringment, doing nothing can be cause for the courts to say the term has become diluted.

    So everyone tries to trademark every damn individual product they have, because they want to distinguish their product from everyone else’s product. Kleenex tissue from, say, Goesintight tissue, which clutters the namespace chock full of trademarks, and every single one of them have to be defended with lawsuits because if they don’t, they lose them. And all the terms are all just talking about the same damn thing anyway, the only difference, really, si that they’re different brands. So, I say make the brand teh trademarks and drop all the specific product trademarks.

    Johnson and Johnson ™ tissue.

    THen you’re not chocking the namespace full of trademarks, and the only trademark you have to defend is your company name, which, hopefully, is not something that will commonly fall into diluted common terminology. Of course, “xerox” is one example where a company name did become diluted for the act of photocopying. So it can still happen, but that’s because “xerox brand copiers” became “xerox” in consumer’s minds.

    Anyway, none of these trademark issues of dilution or requirements for the owner to enforce or any of that apply to copyright.

    Not that copyright isn’t enforced to absurd levels by some owners, but at least, they’re not required to do it to keep ownership. So a lot of authors don’t fret about fan fiction so long as it doesn’t make money.

    I think Rowling pretty much left the fan fiction community alone, or even gave it somewhat of a blessing, up until someone went and tried to sell a book of fanfiction about harry potter, while she had her own similar book in progress. At which point, I’ve yet to see an objective definition as to whether the fiction is derivative or not. I would have sworn that “the wind done gone” would ahve been a derivative, but the court said no. So it seems that once someone starts maknig money, the only way to settle whether it’s infringment or fair use is to go to court.

    But at least while it is noncommercial, Rowling didn’t have to sue the fanficcers to keep copyright, the way trademark owners have to sue to keep trademarks.

    Bad law makes people crazy.

  46. Stephen: “I think she presents her case in a moderate, friendly, and reasoned manner.” I disagree with the last two descriptors.

    You know, all it would take is a court case and fan fiction could be illegal tomorrow. I’m not saying I would agree with such a ruling, but it’s a potential legal twist that is important for my point: she presented her case in a moderate, friendly, and reasoned manner, it’s just that the law as it stands today is against her.

    But as far as presenting her case goes, someone might say exactly what she said to the courts in some case about fan fiction tomorrow and sway their opinion to rule against it.

    Mark Twain argued before congress that copyright should last “in perpetuity”. When he spoke before congress, he compared the expiration of copyright and someone else being able to use his works without paying him as akin to him working the land on a farm and someone else coming in and stealing the crops.

    Sometime after Twain lobbied his case, congress extended copyright, I believe from 42 years to 50 years.

    Twain used metaphors to say people who would make money off his works are comparable to people stealing crops off a farmer’s land.
    And it worked. Congress extended copyright terms.

    What Diana did is no different than Twain. She used metaphor to explain how she viewed something about copyright law and how people acted around it.

    The main thing here seems to be that people took Diana’s metaphors as if she intended them as directed personal insults, rather than as her attempt to present her view of how fan fiction fit in copyright law.

    Her understanding of copyright law is legally wrong. But as I read what she posted, I don’t read it as personal, directed insults at fanfiction writers, I read it as her attempt to convey how she sees fanfic within copyright law.

    Some took it as personal insult directed at them as individuals, and dogpiling ensued.

    What I’ve read of her posts, I can read as moderate, friendly, and reasoned. At least, its no less moderate, friendly, and reasoned than, say Mark Twain’s speech to congress explaining his reasons for asking copyright terms be extended for perpetuity. Twain was legally wrong because the constitution requires that terms be finite. But he viewed term expiration as theft, and that’s how he explained it before congress. That was his worldview. It was legally incompatible with the constitution, but it was his worldview.

    But in trying to explain her worldview on fanfic, it seems that some took Diana’s metaphors as directed insults, rather than as explaining her case against fanfic.

    The dogpiling has nothing to do with whether she was correct legally or not. The dogpiling had everything to do with some folks taking her worldview metaphors as personal attacks on them as individuals.

    She was no less moderate, polite, or reasoned than Twain before congress. They both happened to be wrong from a legal standpoint, but that’s a different issue.

  47. Grey@54: I think people are more upset over her use of the words lazy and immoral to describe fanfics and fanfiction. I think that is what Stephanie means by her not being polite, as such language is generally linked to verbal attacks.

  48. I think people are more upset over her use of the words lazy and immoral to describe fanfics and fanfiction

    One could reasonably and politely argue that it takes more work to write a completely original world, completely original characters, and completely original plot. The implication of this is that fanfic is “easy”, and it wouldn’t be much of a jump to say at least some fan fic writers might choose fanfiction because it’s easier, and therefore they’re lazy.

    As for “immoral”, did you read the bit I mentioned about Twain calling the expiration of copyright terms in any duration less than “perpetuity” as outright theft? Anyone who used his works after copyright had legally expired, no matter how long it lasted, was robbing him, in Twain’s words. Thieves, no less immoral than a man stealing crops that someone else planted and worked.

    Then again, one real world example of fan fiction would be the fan fiction community that sprung up around Harry Potter and then tried to sell commercial copies of a book in Rowling’s universe. An encyclopedia of sorts. Something that Rowling was working on herself and hoped to sell. The courts ruled that the book was indeed infringement.

    So if we include that in the class of all that is fan fiction, then it is possible to see that not all fan fiction as completely harmless, completely legal, or completely moral.

    I’m not agreeing with Diana. She’s legally wrong in several counts about copyright law. And I don’t think fanfiction people are lazy or immoral.

    but I didn’t take waht she said personally. and I do know that there are some instances of fan fiction that went to far, broke the law, and tried to cash in on something the courts declared to be infringement.

    So, it isn’t entirely outrageous to at least allow that some people have a darker view of fan fiction than others. Illegal? In some cases, yes Immoral? In some cases, yes. Lazy? Meh, who cares if you’re already in the set of illegal and immoral?

    If Diana is guilty of coloring fanfiction as a whole as clad in black, fan fiction here seems to be trying to portray themselves as clad in pure white, and ignoring that fan fiction has turned into active infringement on previous cases.

    Has anyone who attacked Diana, especially the biggest dogs on the pile, come out and said “yeah, OK, some people who write fan fiction have gone too far and legally infringed on the author’s work and the courts had to order them to stop”?

    I don’t think so.

    So, like I said, if you’re gonna hang the rabbit, then you’ve got to hang to dogs.

  49. If she doesn’t like it, then that’s fine. Just say so. I think that Terry Goodkind has said such. Did he pitch a fit though? Does anyone know? I think it’s perfectly fine for a writer to say that he/she doesn’t like fanfic.

    Yeah, there’s lots of horrible fanfic out there. There’s lots of great stuff too. When you find the great stuff, that’s when you go “Why isn’t this author published?” Some actually are. There are goldmines out there on the internet just waiting to be read.

    I think what we have to remember is that fanfic is all about fun. Reading for fun, writing for fun. It should never be about making money, because that would be wrong. People like to fantasize. Isn’t that a good thing?

    People don’t write fanfic about Scalzi’s books? Really? Huh. Kind of thought there would be some. Maybe someone needs to suggest something for Yuletide this year.

  50. Ghlaghghee stalked into the room to see The Bald Feeder staring into the Glaring Thing at something green and fuzzy. She stopped, washed, and realized that The Bald Feeder had not done his duty in at least forty-five minutes.

    This was not to be borne. She needed to attract his attention, but how?

    Thinking quickly, Ghlaghghee drew upon the millions of years of jungle evolution and hunting instincts. Then she sprang…..

  51. Seriously – you are now on my to-read list because you sound like an awesome person… with the type of stories I love.

    (this may or may not generate fanfiction, as I do enjoy writing as well, LOL)

  52. Should I conclude that any statements about the legal status of fanfic are based on American copyright law and an American culture of interpretation for copyright concepts.

  53. Mythago@51: given the success actual pro writers have had with “playing in someone else’s world” – see, e.g., Wicked

    Now see, I’d argue that Wicked is a singularly unhelpful example as regards “professionally published fanfic”, precisely because Maguire’s Oz is deliberately and very sharply different from Baum’s…which is to say, it’s instantly and obviously transformative rather than imitative (to use a term that’s arisen in the past couple of years).

    Greg@53 & 56:

    The Harry Potter Lexicon case wasn’t concerned with fanfic; it was concerned with the degree to which the content of the prospective Lexicon was directly quoted from its source material. (That suit also is less a reflection of Rowling’s opinions than it is of the Warner media empire’s, since Warner now controls most of the HP trademarks save where Rowling’s books themselves are concerned.)

  54. Adela @60:

    Probably yes. That said, the single best legal analysis I’ve seen with respect to fan fiction remains this essay at C. E. Petit’s blawgspace (spelling intentional). It’s dense and legally complex, but it’s also more carefully nuanced than any other commentary on the subject I’ve seen.

  55. To Greg @ 56: I don’t think many people would class an encyclopedia as “fanfiction”. They didn’t create any new fiction in her universe, they simply took things from her books.

    To John @ 61: A very large amount of fanfiction is completely different from the original works, ie transformative. I mean, sure there are plenty of fanfics which are very similar to the canon, but it’s by no means a “norm”.

  56. I used to work with a guy in an office who would leave people’s desk toys in compromising positions. That’s my metaphor for fan fiction. Fun for the person doing it, but weird (and slightly creepy) for the desk jockey.

    That said, it gave me a laugh.

  57. John: The Harry Potter Lexicon case wasn’t concerned with fanfic

    Lanta: I don’t think many people would class an encyclopedia as “fanfiction”.

    So, I get from a fan-ficcer point of view, fan fiction is usually a story.

    But for some authors, especially those who aren’t well versed in all the fine grain distinctions of copyright law, fair use, and infringement, the label “fanfic” is sort of irrelevant. Somebody the author didn’t authorize is writing something that is based of their work.

    Clearly the author needs to learn the distinctions between fair use and infringement.

    But at the same time, the subset that is “people not authorized by the author who write stuff based on the author’s works”, includes people who take things one step too far and go into the land of copyright infringement.

    I think its a pretty lousy defense of fan fiction to ignore real infringement because it wasn’t someone’s particular definition of “fanfic”. The HP encyclopedia tried to get commercially published under exactly the same law that allows fan fiction: fair use. The courts agreed that fair use allowed for the idea of an encyclopedia, but that this particular encyclopedia had gone too far. I believe the encyclopedia was eventually rewritten and finally published under fair use.

    But not everyone who shouts “fair use” is actually meeting the definition of “fair use”. And sometimes the author has to get the courts to put a stop to it.

    So given all that, I can allow for, as in I can understand how they feel even if I don’t agree with them, that an author might take a less-than-pure-white view of that set of things published under what people say is “fair use”. Whether it is “fanfic” is really irrelevant. The author isn’t required to distinguish fanfic from other forms of fair use. There is fair use and then there is infringement.

    And certainly Diana is one of those authors who takes a far more restrictive view of what “fair use” would allow than others. But if we hang her for that, then we have to hang all the folks who can’t seem to get that not everything that someone claims is “fair use” is really fair use. Sometimes people are just infringing.

    And I find it a little… dishonest… (not exactly sure if that’s the word I want) for people defending fan-fiction to define fan fiction as “only that which is legal”. If that’s their definition, then they’re really talking about “fair use”. And if they’re talking about fair use, sometiems people abuse fair use and are really infringing.

    Just becuse the harry potter lexicon wasn’t fan fiction, wasn’t a story about harry potter characters, is sort of irrelvant to the fact that it was something a fan created, based off Rowling’s works, and tried to pass off as fair use, but wasn’t.

    So, if Diana is guilty of unfairly portraying fanfiction as pure evil, at least some of the dogpilers who jumped on her seem to be guilty of unfairly portraying fanfiction as pure goodness that never does nothing wrong ever.

    If both sides wanted to be completely honest about it, they’d stop portraying the issue as black and white and admit that their side has a little grey in it.

    I got the impression that Diana has at least acknowledged that she over-stated her side of the argument, that she acknowledged that not all fanfiction is evil/black, that she was at least in some part, wrong. She’s admitted to having a little gray on her side fo teh issue.

    I’ve not seen that from the most adamant dog pilers yet. The ones still piling on her want her to apologize for every metaphor and every analogy she used during the conversation, on the grounds that it was intended as some kind of personal attack. Meanwhile, I haven’t seen any of them come out and say that, yeah, sometimes people take “fair use” too far, that their side has a little gray in it.

    They want Diana to apologize for everything while they maintain that their side is pure white.

    And that’s just silly. Obviously, if folks want to be silly, it doesn’t matter how much someone points it out, they’re still going to be silly about it. THey’re going to keep trying to make it all black and white, we’re white, they’re black. And from that point of view, Diana was guilty of seeing everything as black and white, her side all white, teh other side all black. She was guilty of that as much as smoe of the fanficcers. The difference now is that Diana has acknowledged she’s made some mistakes, acknowledged some gray on her side, and some of the dog pilers want her to confess her black soul to their pure white inquisition. And it’s just plain silly.

    Anyone who wants to say fanfiction never did nothing wrong ever is being just as black/white, and just as wrong, as Diana saying all fan fiction is pure evil.

    The thing is Diana has since acknowledged some gray on her side and even allowed for some white on the side fo fan fiction.

    Have any of the dogs on the pile done that?

    Maybe I just missed it.

  58. To Greg @ 65:

    I’m a fanfiction writer and I don’t by an means think that no fanficcer has ever done anything morally and/or legally wrong. To say that would be completely stupid. I don’t know every fanfic writer out there. How do I know what they’ve done?

    I take offence not at Diana disliking fanfic (I respect the wishes of authors who don’t want it) but at the particular way that she phrased her post, and at some of the comments made by particular supporters of her.

    I also once again dislike your using the encyclopedia as an example (though I do take your point that Diana might also link them in her mind). Fans have been writing published works ABOUT books, TV shows and movies for decades. Just look at all the non-fiction published about Buffy or Doctor Who. That’s a completely different area from writing FICTION using a writer’s settings and/or characters.

  59. I actually agree with everything Greg @65 said. And I say that as a former fanfic writer (and someone whose keystrokes are a precious commodity these days – RSI and all that).

    DG’s big mistake is she’s too wordy. Say as little as possible, and don’t use analogy because guaranteed, someone’s going to get offended by at least one of them. Were it me, I would have said, Hey, guys, I have a conundrum: I’m opposed to people ficcing my characters, but I heard about this charity auction that so far as I know is legit and for a good cause. I have my reasons for being opposed to fanfic and request you don’t do it with my characters, but what about this charity? How do I handle this?

    That’s all that really needed to be said, honestly. But having read 4 or 5 of her novels, “concise” isn’t a word I’d use to describe her style of communication.

  60. Gabaldon, in her rant, strikes me like one of those rabidly anti-gay-rights congressmen who gets caught with a male prostitute.

    One of her complaints about fanfic is that a lot of it is full of sex and is thus icky. But her own novel Outlander is thinly disguised S&M and H/C erotic romance (mixed with historical fiction).

    Gabaldon has a chip on her shoulder about her books being shelved in the Romance section, and I’ve heard that in one of her books, her protagonist complains about how awful “bodice-rippers” are. There’s an element here of, “When I write it, it’s okay, but when other people write it, it’s disgusting” that I find hypocritical.

  61. John @61, that sounds like a conjugation: I create transformative works, you write stories based off other people’s writing, she writes fanfic.

    Some fanfic is very transformative while some follows canon; I don’t see how the amount of change (or, depending on your POV, “violence”) to the canon determines whether it’s fanfic.

  62. @mythago 68:

    I don’t see how the amount of change (or, depending on your POV, “violence”) to the canon determines whether it’s fanfic.

    Except based on what little case law there is, it does look as though the violence to canon is one of the factors a court will consider in determining whether the text is sufficiently transformative to fall under Fair Use.

    The farther from canon the story is, and/or the more critical of canon, the more likely it is to be acceptable to the court.

    Of course, the irony here is that the farther from canon a story is, the more likely it is the original author/copyright holder is to find it offensive.

    Which means, as I said in Kate Nepveu’s comments, those of us who primarily write gen stories (aka stories without a romantic component) may be SOL; it’s the slashers who may win out in the end.

  63. Lanta: I’m a fanfiction writer and I don’t by an means think that no fanficcer has ever done anything morally and/or legally wrong.

    And yet, that isn’t the same as saying an author has a valid concern that at least some fanfiction does veer into infringement.

    You don’t actually acknowledge the basic fact that infringement does occaisionally happen.

    It happens. It’s a valid concern of an author. Diana has acknowledged that she overstated how much of a problem it really is, but the response from the dog pilers is to avoid acknowledging the facts of fan fiction and such other works. Sometimes they overstep legal bounds. Sometimes they infringe. Sometimes the author has a valid point.

    If you can’t acknowledge that sometimes infringement occurs, then you are refusing to grant that Diana has a valid point. And people who are avoidign that are overstating their case as much as Diana was overstating hers.

    I take offence not at Diana disliking fanfic (I respect the wishes of authors who don’t want it) but at the particular way that she phrased her post

    Diana overstated her case. Fan ficcers overstated theirs. Diana apologized for overstating. Fan ficcers haven’t.

    As for the metaphors, I didn’t take offense at them. I don’t think they were meant as personal attacks. THey’re metaphors to try and take an etheral concept like copyright law and put it into physical forms we’re more familiar with.

    Folks want to be offended, that’s their choice, but I think it is reasonable to see everything she said not as a personal attack but as an attempt to explain with physical metaphors a very etheral topic.

    But when Diana apologized for overstating her case, the biggest dogs on the pile seemed to be demanding that she then apologize for causing offense with her metaphors. Meanwhile those same folks on the dogpile have yet to acknowledge anything valid about Diana’s position. i.e. sometimes people infringe.

    also once again dislike your using the encyclopedia as an example (though I do take your point that Diana might also link them in her mind). .. That’s a completely different area from writing FICTION

    Once again, you manage to avoid acknowledging that Diana has any sort of valid concern. It’s “in her mind”, which suggests it isn’t real. And while you seem to be focused on the huge categorical difference that you see between “fan fiction” and, say, “fan encyclopedias” or whatever you call them, that’s your perspective. That’s your poitn of view.

    There is no court case or law that I know of that defines “fan fiction” as a category that is always exempt from copyright law, that it always qualifies as fair use.

    So, its possible to have whatever you want to call “fan fiction” turn out to be a work that infringes copyright. Just because you don’t put “fan encyclopedias” in teh same category as “fan fiction”, it’s an arbitrary label that doesn’t have a lot of legal meaning as far as I know.

    If both sides want to view their side and the other sides faults equally, then Diana would admit that there is legitimacy to some forms of fan fiction, that she overstated the evils of fan fiction, and fan ficcers would admit that some fan fiction becomes infringing works, that there are valid concerns for an author in some cases.

    I think Diana admitted her part.

  64. To Greg @ 70:

    Hmm. I think part of the problem I have with what you’re saying is that you are linking together everything that every fanfic writer has said to or about Diana. That makes it hugely uneven between Diana (one person) and “fanficcers” (lots of people).

    The only comments I have ever made on this entire situation are on this page, by the way. I never commented on Diana’s post or elsewhere. I don’t agree with every comment made by every person who writes fanfiction, and I can’t control what they say.

    I actually did mean by my last comment that sometimes fanfiction might actually be real infringement. You misinterpreted, hopefully not wilfully.

    I don’t see the difference between non-fiction and fiction as “arbitrary”; by dictionary definition they’re opposites. As for legal terms, I’m not a lawyer and know very little about it, but there surely has to be a legal distinction between published non-fiction fan works and not-for-profit fiction ones. In particular, there’s the fact that it *is* legal to publish such non-fiction texts, so long as they don’t contain too much of the author’s original work (which was the problem with the encyclopedia). As for unpublished fanfiction, that’s a completely grey area that to my knowledge has never been tested in the court of any country.

  65. cofax @69 – true, but that’s “what is fair use” rather than “what is fanfic” and it’s the latter I was referring to.

  66. Lanta: I actually did mean by my last comment that sometimes fanfiction might actually be real infringement. You misinterpreted, hopefully not wilfully.

    I took what you said literally, I tried not to insert possible intents and various interpretations. You said “I don’t by an means think that no fanficcer has ever done anything morally and/or legally wrong”. That is not the same, literally, logically, or functionally, as saying “sometimes fan fiction infringes”.

    it could be one of your possible implications or intentions, but other implications and intentions that are mutually exclusive are possible.

    You acknowledge that sometimes fan fiction infringes in your last post, so now it’s explicit and clear.

    I don’t agree with every comment made by every person who writes fanfiction, and I can’t control what they say

    That’s fine. i’m not trying to condemn everyone who disagreed with Diana as a group. But individually, as far as I could see, no individual who disagreed with Diana actually acknowledged that sometimes fan fiction infringes. You may very well be the first to acknowledge that, so congrats on that.

    This thread seems to be one stepped removed from the original discussion. And some people here got in a discussion as to whether Diana was polite, reasonable, and other such markers. My point was simply that if we condemn her for that, we’d need to condemn the biggest dogs on the pile. because both were “unreasonable” in that both sides were misrepresenting their side as pure white, at least at the beginning.

    there surely has to be a legal distinction between published non-fiction fan works and not-for-profit fiction ones.

    From Wikipedia (for whatever that’s worth):

    In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The thing is that simply being noncommercial versus commerical is not sufficient to grant fair use. A work put on the web that makes zero money could still be considered infringing. And a work that is published commercially and makes lots of money could be determined to be NOT infringing and therefore Fair Use.

    As for fiction versus non-fiction, facts are not copyrightable. Therefore an encyclopedia about a fictional world can be fair use if it reports the facts abotu the world, using their own words, rather than teh words of the original author.

    But then there is the issue of how much of the original work ends up in teh new work. I believe teh HP encyclopedia copied too much text verbatim from the original HP series.

    ANd finally, if the new work prevents the original author from making money from the original work, then that’s a strike against the new work being “fair”. instead the new work is considered an attempt to replace the original and cash in on the popularity of the original. I believe this was one of the reasons why “wind done gone” was found to be fair use, because it would never be considered a replacement for the original “gone with teh wind”, it wouldn’t take money away from it’s income. That plus the otehr three points and wind done gone was ruled fair use.

    I think this also protects the original author from someone else writing a “sequel” to the original. Since sequels are common enough that their sort of considered natural part of author income. Which means fair use usually requires that the new work be non-canonical in some way or break from the original voice or whatever. Not a sequel, but something different.

    I believe, though I’m not certain, that one of the strikes against the HP encyclopedia was that Rowling was working on her own encyclopedia and the fan version would be direct competition. It was one of the arguments presented, not sure if it was one of the reasons the courts ruled against the fan encyclopedia.

  67. Greg,

    When number of words in your comments to one post is approaching the sum total of words expended in all the other comments from multiple people, it might be an indication that you’re getting a bit too involved in an issue.

    Just a thought.

  68. Greg@65: I think its a pretty lousy defense of fan fiction to ignore real infringement because it wasn’t someone’s particular definition of “fanfic”.

    I wasn’t attempting to defend fan fiction when I made the comment about the Lexicon case; I was attempting to point out that because the Lexicon is not fanfic (by any definition of which I’m aware), the decision in that case cannot be regarded as being directly applicable to fanfic.

    The HP encyclopedia tried to get commercially published under exactly the same law that allows fan fiction: fair use.

    No. Fair use is one component of one theory whereby fanfic is arguably legal, but the legal framework in which fanfiction exists is complicated. I very strongly encourage anyone interested in looking at it seriously to go read the essay I linked up in #62. The issues wander in and out of both copyright theory and trademark theory, and there are minefields aplenty. The Lexicon case is of interest, yes, because it treats one kind of derivative work, and fanfic is often regarded as another kind of derivative work.

  69. mythago@68: Some fanfic is very transformative while some follows canon; I don’t see how the amount of change (or, depending on your POV, “violence”) to the canon determines whether it’s fanfic.

    I don’t disagree; as I noted up in #46, the edges of the sandboxes are getting fuzzier all the time. Which is why I specifically said “unhelpful” upstream; as cofax observes, the more transformative works tend to have an easier time when legal disputes arise.

    Indeed, from a strict qualitative standpoint, one of the real problems that arises in these discussions is that it isn’t possible to tell whether a work is “fanfic” or “profic” on the basis of the text alone. If I showed you two Buffy the Vampire Slayer novels in pure text format — one commercially published, one circulated through fannish channels — there’d be no qualitative standard you could use that would reliably tell you which was which.

    And that brings us back around to Diana Gabaldon (about whose original posts I haven’t commented till right now).

    The thing is, in the case of mediaverses and other deliberately designed collaborative story-milieus, fanfiction is only one more layer of collaboration. But in the case of personal-creation settings (read: most prose novels), having fanwriters forcibly turn “your” universe into a collaborative setting is potentially scary on two levels. One is the “ownership” level; suddenly your characters aren’t entirely yours anymore. The second, though, is the fear that someone else may turn out to be better than you are at telling stories about those characters — and may, as a result, siphon readers off from your stories to theirs.

    And that fear isn’t entirely unrealistic. I have seen no formal studies on the subject, but I would be willing to bet that given a comparison of fanfic-story hit counts vs. hard copies of genre novels sold, there are a considerable number of fanfic writers out there today whose readerships are larger than many popular “midlist” genre fiction writers.

    Now as a practical matter, I know of no case in which a print author has actually had a career short-circuited in that way, nor do I think we’re likely to see one. But I can certainly understand prose authors’ concerns in this regard, and I would generally encourage fanfic writers to respect the wishes of authors who ask that fanfic in their personally created worlds not be circulated.

  70. John: ), the decision in that case cannot be regarded as being directly applicable to fanfic.

    Fan fic is not a legal concept. Fair Use is a legal concept. The encyclopedia failed the test for fair use. they had to change it to qualify as fair use before they could publish it.

    The courts never said, “oh, this is ‘fanfic’ so we allow that.” The courts only say this is fair use or not and if not, stop it.

    So, saying “that because the Lexicon is not fanfic … the decision in that case cannot be regarded as being directly applicable to fanfic” is a nonsequitor. Fanfic has no legal meaning.

    The issues wander in and out of both copyright theory and trademark theory

    Neither of which has anything specific that defines some legal category known as “fanfic”.

    wikipedia (for what it’s worth) says: “Legal issues with fan fiction arise due to the modern definition of fan fiction as derivative works, … However, U.S. copyright law does allow for fair use of a copyrighted work by non-copyright-holders according to four tests. ” those four tests are what I explain in #73.

    wikip also says that trademark law can enter into it, but only if there is likelyhood of confusion, which can be easily avoided by stating up front that so-and-so owns the trademarks and that this work is not endorsed by so-and-so.

    You can have a character drink a coca-cola in your story without creating confusion as to who owns the trademark, so it’s allowed usage for the trademark.

    Lastly, wikip points out that you can also get fair use if you are criticizing or parodying the original work. Which I believe has a slightly different test than the 4 points of fair use above.

    But there is no special legal category called “fan fiction”. The main legal distinction is that it is a copyright derivative that is allowed because of Fair Use.

    You want to argue about categorical differences such as how ficcers view their works versus encyclopedia folks view their works, that’s a different conversation than the legal category that allows certain kinds of fan fiction under certain conditions: mainly it meets the 4 points for fair use.

    The Lexicon case is of interest, yes, because it treats one kind of derivative work, and fanfic is often regarded as another kind of derivative work

    Both of which can be made without permission from the original author only if they qualify as Fair Use.

    There is no copyright difference between the genre of Horror versus the genre of Westerns. What you’re talking about has no legal distinction. it’s a category like genres.

    One is the “ownership” level; suddenly your characters aren’t entirely yours anymore.

    This shows up legally when a fan writes a story, and then the original author writes something vaguely resembling some piece fo that story, and then the fan sues the author for infringement.

    This is one reason that authors say “for god’s sake, don’t show it to me”. Not for any “ew, fanfic squicky”, but for “uh oh, you showed me your story, now you can say I got my idea from you and sue for a piece of teh action.”

    At which point the original author may find it easier to simply avoid ever writing the story they wanted to write.

    It is perfectly legal for the author to come up with a story similar to a fan if the author creates the story without ever seeing the fan’s work. So long as the author doesn’t know about the fan’s work, any resemblence is irrelevant from a legal standpoint.

    You want to talk about minefields, this is one of those mines that can be laid by the fan and harm the original author. So, authors do have a valid legal basis for at least being concerned about fanfic. It can legally bite them in the ass and make it impossible, or very expensive, for them to write a story.

  71. [sigh]

    I trust the C. E. Petit legal analysis of fan fiction (again, linked up at #62) considerably farther than I trust Wikipedia’s. Which is, I think, about as much as I need to say here….

  72. I trust the C. E. Petit legal analysis of fan fiction

    Oh, jeebus. (clicking…) (reading…)

    (mumble, mumble, fair use, mumble mumble parody, mumble satire, mumble, mumble, trademark law…)

    Uhm, yeah, so, Petit says it’s more about trademark than copyright when it came to a software company that had an online world where people could create cahracters an awful lot like marvel characters. OK. Maybe so. But that isn’t fan fiction, is it? And you seem to the dog that has most latched onto the bone that fan fiction is fan fiction and is like nothing else related to anything else in the copyright or trademark domain. And yet, everything said in that link you keep harping about says nothing more than “fair use”, “parody”, “satire”, “trademark”.

    Wow.

    Sounds familiar to me. Pretty sure that’s just about exactly what I’ve been saying, at least in principle.

    There is mention of the Lahmann act and it’s requirement for “commerce” and whether fan fiction is commerce or not. OK. So, that’s at least touched upon by the first of teh four points for fair use.

    Hm, This is interesting: There has been more than one instance in which a later-published work by an “authorized” creator was accused of infringing upon material from fan fiction. Some creators and authors dislike fan fiction for precisely that reason: They fear that their own work will be cabinned by what the fans do, including potentially closing off already-contemplated developments.

    I guess when C.E.Petit says it, it’s so much more wiser than when I said the exact same thing in #77.

    I got about half way through reading it and at least in the first half there is no mention anywhere that fan fiction is somehow fundamentally different than some other fair use work.

    OK, so maybe when you apply the four tests for Fair Use, you get different individual answers on teh tests, but the final measure is either “fair use” or “infringing”.

    And trademark gets more emphasis than I gave it. But in the one case mentioned in the link, it was an online user community that could create their own characters. And as I mentioend before, that isn’t even qualified as “fan fiction”.

    So, you said “Fair use is one component of one theory whereby fanfic is arguably legal, but the legal framework in which fanfiction exists is complicated. I very strongly encourage anyone interested in looking at it seriously to go read the essay I linked up in #62. The issues wander in and out of both copyright theory and trademark theory”

    And I read the first half of it, and no where in teh first half does fan fic get declared to have some kind of special status. All Petit is doing is taking the various existing bits of law (copyright, fair use, trademark, etc) and show how it applies it to fan fiction. That is exactly what I’m saying. It isn’t a special category unto itself from any sort of legal standpoint.

    it all comes down to fair use or not. And maybe it is “complicated”, but that doesn’t mean it is categorically different than that Harry Potter encyclopedia that you insist is so blasted different.

    And Petit alerady pointed out the exact same issue with fan fictinthat I mentioned in my previous post, i.e. original authors getting sued by fans. That’s a real problem around fan fiction. ANd it doesn’t matter what legal categorical status it has. it’s a problem that fan fiction creates for the original author.

    So, if all you’re goign to do is harp on this notion fo your that fan fiction is some sort of class unto itself legally speaking and gets treated differently than all other works, then I’m going to need more than “it’s complicated” or “C.E.Petite said so”. At least throw me a quote from the paragraph where Petite explains why fan fiction is so categorically different than anything else and cannot be compared to anything else.

    As it is, in the article you link to, C.E. Petit talks about fan fiction, online “worlds” (which doesn’t have any storyline, just characters that users can play with), The Wind Done Gone, Don Quixote, Peter Pan, and a whole bunch of things that in no way would be what I would call “fan fiction”. Which I read as Petit saying “it’s all complicated” and “it’s all copyright trademark etc”

  73. [stepping back]

    First, my apologies to the gallery (and to our host); I hadn’t meant to divert the discussion anywhere near this deeply into legal minutiae. Nor do I think it’s profitable to further debate the legal minutiae at this point in this discussion.

    For Greg: while we apparently differ greatly in our approaches to the legal issues, I think our underlying views have more in common than you may think. As I’ve said above, I think there are valid reasons for professional writers of original fiction to be concerned about fanfic — and I think fanfic creators would be wise to respect the wishes of such writers.

    That said, three quick generalizations.

    (1) In itself, “fanfic” is not and cannot be a descriptor of literary merit, craft, or other standards of storytelling quality. The term refers to a work’s point of origin, not its content.

    (2) Similarly, the fact that a work is a collaborative creation (a movie, a TV episode, a tie-in novel, a work of fanfic), is also not a descriptor of storytelling quality; collaborative stories are, as a class, neither better nor worse than stories created by a single author.

    (3) Both copyright and trademark law work reasonably well for managing the rights associated with individual/single-author creations; they arguably work less well with respect to collaborative/shared-creation works and settings. (And that’s as far into the legal minefield as I care to travel just now.)

  74. ““When I write it, it’s okay, but when other people write it, it’s disgusting””

    Actually, this has a lot to do with sexual agency and consent. When a sex partner agrees to performing a particular sexual act, that doesn’t mean they consent to EVERY sex act (a slippery slope argument used against rape victims).

    Gabaldon created how her characters should be used in a sexual nature. That agency belongs to her and her alone. To take those characters and put them into other sexual situations against their – ergo Gabaldons – consent, is removing their – her – agency from the sexual act.

  75. Gabaldon- I don’t like it when people appropriate my characters for their own masturbatory fantasies.

    The Internet- You hate sex! Hypocrite!

    Seriously guys, stop doing this. She never said she hated sex. She made it clear that it was the feeling that a stranger had appropriated her characters and used them for their own sexual gratification that creeps her out. If you want to disagree with that on its merits, go for it. But sneering that her characters have sex displays a stunning lack of reading comprehension.

  76. Patrick:

    “Gabaldon- I don’t like it when people appropriate my characters for their own masturbatory fantasies.

    The Internet- You hate sex! Hypocrite!”

    No one here as far as I can see made an argument even remotely resembling that one you just claimed, so I’m wondering what you point is posting it in this thread, other than to have a convenient strawman to set on fire. Nor is that particular argument the same argument you appear to be making the second paragraph.

    Additionally, this isn’t “The Internet”; this is my blog.

    Also, while we’re at it, writing sex scenes with other people’s characters doesn’t equate with that person using them for their own sexual gratification, unless you wish to suggest that the fanficcer is typing the scenes one-handed, which I think is condescending and not showing much comprehension about how people actually write. Try not doing that here.

  77. Look, I’m a genfic writer (I also only write in media fandoms, and mostly those where there is expicit or implicit creator acceptance of fanfic writing). It’s getting old, this assumption that fanfic is “masturbatory fantasies;” in this venue, with many fanwriters contributing to the discussion, it’s also plain bad manners.

    My last finished story was a Stargate Atlantis/due South crossover which based on a remark Rodney McKay made about being a “Busy Beaver” in a northern Alberta oilfield town combined with the canon fact that Benton Fraser was raised by travelling librarians and built upon the canon characterisations to explore the kind of relationship that brilliant outcast children tend to have; it’s about as pure as possible. (My first was Angel and Drusilla on an Altlantic crossing in 1867, and was not so pure, because, hey, vampires, but still was nobody’s porn). Some of my favorite current SGA writers deal strictly in military action and inaction (what happens when you add bored marines to four tons of gingerbread mix, for instance). Some of us- a lot of us- are in it for the story, to extend and explore the implications of canon characters, setting, and world-building.

    It would be best if everyone avoided the “you only do it to get your rocks off” topic. I don’t think any writing, fannish or original, requires or benefits from vows of chastity.

  78. To amplify that, I’ll note that the next person who lets fly with a comment along the line of “Fanficcers are just nasty masturbaters” will find themselves on the loving end of the Mallet of Loving Correction. You can find ways to discuss the subject without going there. That is all.

  79. In a just world, there’s at least one sentencoid sequence of words in my last post which should deserve the mallet of loving correction; sometimes revision creates word hash, sorry.

  80. I have no idea what proportion they occupy in the “space”, but would it be safe to say that “slash” and “shippers” are notable or significant or non-trivial (or something) subgenres of fanfic?

    Not sure what the most accurate word would be.

    But they’re clearly not “negligible”.

    Fanfic is also notable for being the origin of the term “Mary Sue”. Star Trek fanfic, if I recall correctly. Not sure what percentage of the genre feeds the desire to Mary Sue the author into the center of some fictional universe so they can save it, but it did spawn the term itself.

    And maybe the issue is really that these two pieces are very small fractions of the space but get a large proportion of attention because, well, they’re sort of about egoism, aren’t they? So, the folks who want to write that sort of thing, want the attention.

    Categorically, I don’t know if fanficcers can sub-genre itself to cleave off the less-desirable aspects of its works. Well, they can try, but the rest of teh world isn’t obliged to be experts in the fanfic field and be aware of those sub-sub-genres.

    I think at some point, you just gotta do what you gotta do and ignore the people who condemn the whole for some bad apples. Science fiction used to kind of have that reputation. Mainstreamers didn’t have much exposure to it and judged it based on some really bad, but attention-grabbing, examples.

  81. It isn’t just sex though. I’d get equally if not more upset if my creations were being used for politics or religion issues in a way I don’t approve of. There is no shortage of fanfic being used for political and religious views.

    It is as Amanda tried to explain about agency. Many creators see their creations as having an agency that they of course own. Fanfic disregards that agency. So the ethics of fanfic often revolve around whether one believes that there is that agency to begin with. This is where moral rights which the American system of copyright currently doesn’t have would come in.

  82. Adela, I’m not touching the “agency” idea with a ten foot subclause. It comes way too close, in my mind, to confusing fictional characters with flesh-and-blood people, as well as violating my working class “I am not my job, nor a product of my job” ethic.

  83. Well JESR it is one of those philosophy minefields.
    It is however one of the many reasons why the opposing sides are not going to make peace anytime soon.

  84. Greg @ 88

    Uh, no. At least not really. I mean slash is certainly a sub set of Fan Fiction, as is shipping, and to be honest, those two words don’t mean today in 2010 what they meant when I came into fandom in the mid 90’s — they’ve evolved somewhat; but both of them refer broadly to what would be a more recognizable genre — romance — because both slash and ship describe the type of relationship between characters within a piece of fan fiction. Not all slash is sexually graphic, not all ships have a happy ending.

    because, well, they’re sort of about egoism, aren’t they?

    And I think you’d be very mistaken if you assumed that people who write slash, or who ship, do it primarily for the attention factor or to get their egos boosted any more than any other classification of writer – pro or amateur.

    Slash has been, for the larger part of it’s existence as a kind “genre” of Fan Fiction, largely hidden from view and sometimes compulsively and with a certain paranoia. It’s obviously changed dramatically in the last few years, but there was a point in the not too distant past where being outed as a “slasher” could present a very real threat to someone’s livelihood in the real world. I make no apologies for writing slash but I’m also not so blinded by my love of it that I don’t think it could be used a true weapon if I wanted to do something, like say, run for some local government office. It’s not unlike being stigmatized by certain sectors for professionally writing erotica *still*. Something that’s also changing but…there’s plenty of people who would still like to see erotica become a legitimately censored genre of fiction.

    I would agree that there’s a certain amount of ego-booing or attention getting behavior in not writing a Mary Sue story but in posting it. I’d hazard that at some point, most people have had at least a passing thought to inserting themselves into some aspect of common entertainment at some level, be a passing thought of, “If I were Iron Man, I would have…” or putting in the effort to either write a story where the author becomes Tony’s distaff son/daughter or what have you.

    Sharing such a work does require some ego, just as it does for a professional author to share or submit work — even if that work is not even vaguely autobiographical.

    There’s been plenty of times when Fandom itself has tried to kind of parcel itself into camps — it quite honestly doesn’t look any better from the inside than it would from the outside because there’s too many people who explore all aspects of fan writing from gen to slash, romance to bromance, fluffy bunnies to blood fests, and can have both academicians that are equally split between amateurs and degreed professionals; Fandom has a real gift for metacommentary.

    As was noted up above though — the stuff fans write that’s the furthest away from cannon, no matter people’s liking or tolerance for sex, slash, fantasy, or reimagining is also the stuff most likely to be sufficiently divorced form the original source to not be considered infringement. (That it might be considered indecent or obscene is a different court case altogether.)

    I don’t personally, care if the mainstream knows what I do or approves or disapproves. I’m not doing it for the money, I’m not doing it for the fame (however limited or encapsulated), I’m not doing it for *practice* to be the next John Scalzi, and I’m certainly not doing it to give the source creator’s grief or impinge on their income stream. I’m doing it because it’s fun, because I enjoy the characters and universes, because I like seeing if I can “nail” a characterization in text that previously only existed in a visual medium and because by and large, the people I hang out with are pretty cool. (I’m not one of the people DG is in a dither about – but I do think she’d be well-served to get to know her fan base a little better.)

    And apropos of nothing, I seriously hate the term “fanficcers”. Regardless of whether people approve of our skill, subject matter or methodology, what we do is write, what we write is fan fiction. Scalzi writes Science Fiction (and now fantasy, and the odd fan fic); he’s not a sciencefictioner.

  85. I’m not aware of an example where “moral rights” was the hinging factor in a court case that resulted in a decision I would have supported.

    I seem to recall that there are some cases that hinged on moral rights that resulted in court decisions that I disagreed with.

    One case I didn’t like was an artist (of some kind, can’t remember) not liking their art being put in a store window because the store next to the store with the art sold pornography or something the artist didn’t like. And the artist didn’t want their art to be associated with the store next door. If I recall correctly, moral rights was invoked in the case, and moral rights was the deciding factor that caused the courts to rule that the artist could force the store to take the art (art that the store legally owned) down.

    No thanks.

    I support the legal idea of fair use. I think that is sufficient to protect the artist and allow others to use the work when that use is fair. And most importantly, fair doesn’t mean the author has to agree with it.

    The notion of moral rights, in my non-lawyer but having studied it a lot opinion, is that moral rights isn’t about “fairness”. It’s about author control. complete author control, whether it would be “fair” or not. The real world cases that I know of that invoked moral rights are generally cases like the one I mentioned about. They’re decidedly not the sort of legal precedent I would want in the US.

    I think when an author creates a work, they ought to be able to have the exclusive right to move that work to other media (film rights for a novel), they ought to be able to have the exclusive right to any sequels, prequels, and such, but outside of that, there is an important aspect of copyright law that you can’t copyright an idea.

    Being able to copyright an idea gives the author (or more likely the publisher), far too much of a monopoly.

    And one of the things I like about copyright and patent law in the US is that it is in the Constitution, and the reason it is there is also in the constitution. Copyright and patent law exists in American law giving authors and inventors exclusive rights to their writings and inventions, for one purpose and reason only: To promote the Progress of Science and useful Arts.

    Copyright doesn’t exist because authors have some moral right to their works that grants them total control of not only their words, but their ideas, their genre, their plot twist, adn so on. Edgar Allen Poe couldn’t copyright the idea of a horror story.

    From a constitutional perspective, copyright and patents are an incentive for authors to create. Or to quote someone often quoted on this topic: “The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers”

    Copyright is a bounty, a reward, offered to anyone who will create new works.

    At least in the US, anyway, copyright is not based on authors having some inherent moral right to their works to control it.

    It is a bounty set by the government, and like any bounty, it ought to be set as low as possible that still gets the job done.

    Moral rights could be added to teh bounty, but American history shows that american authors are willing to write without moral rights. Whichi means the bounty is high enough to get the job done.

    And since, constitutionally speaking, copyright in the US exists solely To promote the Progress of Science and useful Arts, then copyright without moral rights is sufficient to accomplish that goal.

    And fundamentally, I think it is important to look at copyright as a bounty when thinking about what “fair use” really means. Fair Use, to me, really means setting the bounty for copyright just high enough to give incentive to authors to write and no higher.

    generally speaking, when something is declared “fair use”, it usually is of the form of “if all authors had this right, it would increase the bounty needlessly. Authors would still create even without this right. So, we won’t make it part of the copyright bounty, teh copyright reward for writers.”

  86. I just like to toss a sauce for the goose point out there.

    I’m getting tired of it being demanded that authors be emotional divorced enough from their work to allow fanfic and then have fans declare the reason for fanfic is out of passion and love for the work. That’s a double standard to me.
    If the emotional investment of fans in the original work is recognized as valid reason for yes to fanfic then all things being equal the emotional investment of the author in their creation to say no to fanfic is also valid.

  87. Adela @ 94;

    I don’t think there is a double standard. I think there are very few fans (as a percentage of all fans) who would deny that an author can be as emotionally invested in their work as they want to be and the vast majority of fan writers I know if they know an author doesn’t want fan fiction written about their work honor that. And I think even fewer would deny their right to do or say anything with regards to their own work is valid…

    Not agreeing with a point or rationale is not the same as saying it’s invalid.

    Even with DG’s now very public statement on her views of fan fiction, there likely will be some people who might yet borrow her charas or settings for their own purposes within the fan communities (although my understanding was that there is not exactly a huge archive of fan fic based on DG’s work anywhere). But those fans are not all fans and judging all fans based on a few makes no more sense than fans or anyone insisting that just because Cory Doctorow approves of fan fiction, DG must also approve of fan fiction. It’s very clear she doesn’t, and while a great deal of effort is going into persuading her to look at it differently, ultimately, she’s still the one who gets to decide what she thinks and feels about fan fiction.

    No amount of hue and cry, however justified or un- can actually alter that simple fact.

  88. Mayrga @92 said: And I think you’d be very mistaken if you assumed that people who write slash, or who ship, do it primarily for the attention factor or to get their egos boosted any more than any other classification of writer – pro or amateur.

    A very good point. Ego is kind of required in order to create. John Lennon once made a point about destroying the ego, and how he felt compelled to do so, and in doing so, lost his creative drive, didn’t believe he could do anything. Some amount of ego is really necessary to create, because you have to believe you can. Certainly, some people have *inflated* egos in the creative world, but having one at all shouldn’t be classified as a bad thing unless you’re in the middle of practicing Yoga at the moment. ;-)

    Adela @94 said: If the emotional investment of fans in the original work is recognized as valid reason for yes to fanfic then all things being equal the emotional investment of the author in their creation to say no to fanfic is also valid.

    Also a good point worth quoting for the sake of the agreement nod.

  89. My point wasn’t about ego, my point was that some of the more… uhm… notorious types of fanfic, specifically the mary sue and shipper or slash fic, may be giving all of fanfic a bad name.

    And it may not be that either one is a large proportion of all fanfic, maybe it’s just that the folks who write those two are more ego driven than the rest. Or maybe it’s just that Mary Sue fanfic and the “I’m going to take two het characters, make them gay, and write a gay sex scene with them” is, like, one-tenth of one percent of all fanfiction out there, but for whatever reason, its the stuff that gets noticed outside fanfic, so colors how people see fanfic.

    So, while saying “all fan fiction is just about mastaturbation” is wrong, simply pointing it out won’t alter the mainstream perception of fanfic.

    Maybe it’s only that one-in-a-million, but I think at least some stories like that are out there somewhere. And it colors the whole perception of fanfic.

  90. Greg@97:
    Yes, well, but that’s like saying that Harlequin’s series romances give the whole romance genre a bad name, or that Star Trek colors people’s perceptions of science fiction, or that people expect all fantasy novels to be like Tolkien or Conan the Barbarian.

    The unfair generalization is a fact of life, and much as we might wish it, it’s not a phenomenon that’s easily susceptible to PR-driven solutions.

  91. John@98: The unfair generalization is a fact of life

    Yep. I was saying was that it’s not fair, but there is some bad fanfic out there (mary sue and some of the the turn-straight-character-gay slash stuff), and it may be getting more attention than the rest of fanfic, and colors people’s perception of all fanfic.

  92. Greg @ 97

    My mistake, my apologies.

    Lets make sure we are talking about the same thing here: (definitions are very general)

    Mary Sue = amateur fiction featuring authorial self-insertion into a situation or universe, often with an unrealistic propensity toward being Practically Perfect in Every Way.

    Ship = amateur fiction that originally came from the pairing of two characters (heterosexual) who were otherwise not canonically in a romantic/sexual relationship. (The most vivid one for me was Mulder & Scully — Up until, you know, it was canon, but for the larger portion of X-Files canon, they weren’t — which I think kind of removes shipping from your categories.)

    Slash = amateur fiction containing a sexually – charged relationship between two same-sex media characters, usually men.

    The mainstream perception of fan fiction, in my experience, is pretty minimal, actually. Now, I will grant you that there is a propensity for people who, once they become aware of it, to fall into two camps: One) to be appalled by it’s very existence regardless of the subject matter, or Two) to get all wide-eyed and frantic and state “You mean other people do this too? I thought I was the only one!”

    But yes, there is a propensity among some people who, when trying to make something they disagree with seem as appalling as possible, seek out the most extreme examples of their dismay and hold it up as the gold standard or moral weakness.

    So my stance is this; that it’s more likely that people holding up extreme examples already don’t like it — but the fact is, at this point, the more public awareness there is about fan fiction, the more likely people are to find the good stuff — and as with viral videos, music downloads, and yes, publicly acknowledged reworkings of existing works such as Scalzi did with “Fuzzy Nation”, the lines between original source material and participatory audiencing are going to become far more common and more mainstream – and the truth is it’s probably the most likely revenue stream (as in cold hard cash) for all commodities available online — and for the creators of them.

    The interesting thing is that with a few exceptions of idiotic fans trying to sell commercially works that borrow extensively form another’s original source text (and yes, they are few, just the ones talked about, as you said) it hasn’t been Fan Writers collectively who have tried monetizing fan works, it’s been outside business interests trying to capitalize on the massive creativity and productivity of the fan base.

    But quite honestly between “Queer as Folk”, DG’s own books, Laurel K Hamilton’s mainstream sex romps, and the slow but sure acceptance that all things “gay” are not necessarily perverted… slash is coming close to being less of a shocker every year.

    But the Mary Sues? Well, bad writing is bad writing, even if sometimes people get paid for it.

  93. Unfortunately Maygra I keep running into that double standard. Good fans are not the problem but the bad fans are enough of one for some authors to draw a line.

    Grey, a lot of big business practices are passive aggressive exercises of unofficial moral rights anyways. Authors are upfront denied what a lot of others get to do behind closed doors.

  94. Maygra@100:
    I’d have said that “Mary Sue” and “self-insertion” were two distinct tropes (though certainly sometimes related). Not all Mary Sues are self-insertions; not all self-insertions are Mary Sues. Likewise, neither phenomenon is restricted to fanfic. Many of the protagonists in Mercedes Lackey’s published novels have “Mary Sue” characteristics; many of Clive Cussler’s best-selling “Dirk Pitt” adventures feature the author as a self-inserted character.

    Indeed, to the extent that both these are internal features of texts, discussions of these tropes are more relevant to discussions of writing craft in general than they are to fanfic per se — since, as I’ve argued upstream, there’s no purely intrinsic, qualitative way to identify a text as fanfic.

  95. John @ 102

    I agree with your last statement – that compared side by side, with no indication of whether a work was authorized or not, good fan fiction is indistinguishable in quality from pro fiction.

    As for Mary Sue: I would argue that if you can tell the author inserted her or himself into a character, it’s a Mary Sue/Marty Stu…if you can’t, well then, that’s a really well written original character.

  96. John @77, I regret to inform you that we largely agree. I don’t think that fanfic, even if well-written, is a particular threat to profic – except perhaps in the case Stross mentions, where a fanfic writer purports to sell rights they don’t own to somebody else’s work, or in the case Scalzi and others have discussed where a fanfic writer later claims the author stole their idea.

    It probably is a lot more along the lines of what’s already been mentioned – somebody has taken the people you wrote about and used them for their own purposes, and rarely in a way that makes you sit up and say “Wow! I wish I’d written that!”

  97. Maygra, yeah I think we’re on the same page with the definitions.

    there is a propensity for people who, once they become aware of it, to fall into two camps (paraphrasing: outraged and “me too!”).

    I think there’s a lot of people who have the “meh, whatever” reaction, but you just don’t hear from them. You hear from the vocal condemnation group or the “Yay! me too!” group, because, well, they stick around to say something.

    I might even go so far as to guess that most people react to fan fiction teh way they react to (insert genre they don’t have an interest in reading), which is, “meh”.

    But counting a silent majority is hard when they won’t fill in the census forms.

    ;)

    slow but sure acceptance that all things “gay” are not necessarily perverted

    For me, it’s not gay sex, it’s the straight-turned-gay sex and the no-way-in-hell-these-two-straight-mf-couple-would-ever-hook-up that doesn’t work for me.

    It’s weird to put my finger on it as to why, though.

    I remember some episode of one of the later star trek series. It somehow became public fact that one of the common uses of the holodeck was to have sex with a “holo” version of the female captain.

    Well, maybe they didn’t come out and say people were having sex with the holo-captain, I can’t exactly remember. But there was a holo-program of her in the computer and it was one of the most accessed programs onthe ship.

    maybe people just wanted to play chess with her? I kinda doubt it.

    Anyway, I remember the reaction I had was somewhat squickish in nature. Not because I suddenly became aware of “people were having sex”, but because I had a split second empathic moment of putting myself in teh captain’s shoes, pondering all the possibilities of what people might be doing with my holo-self, and coming up with a number of things I might not enjoy, and then having the odd sensation of trying to distinguish my ego from the holo-version-of-myself program, and having some difficulty doing it.

    I read some straight-male-characters-having-gay-sex fanfic and the empathy between me and a character might cause me to put myself in their shoes, cause that’s what good characters often do in a story, you identify with them on some level, empathizing being straight, and then having to deal with the dissonance of suddenly the character (and something I identified with) is gay.

    Similar situation with straight male-female fanfic about a couple that wouldn’t ever get together, where one or both break from their normal characterization. There’s me, the reader, identifying with the character as I know them, then having the uncharacteristic sex happen, then me dealing with the dissonance that shows up when things break from the expected. ANd breaking from the expected on what is often a powerful, visceral level when sex is involved.

    It’s not that I don’t like it because I’m thinking “gay-sex=bad” or even “sex=bad”. I usually find I don’t like it because the character is doing something they would not do, and when I empathize myself into that character, it’s like I’m being forced to do somethign I wouldnt’ do.

    If it’s part of their character, it doesn’t bother me. As a whole, I liked the movie “broke back mountain”. The gay sex scene didn’t turn me off to the story.

    Hm.

    ya know, if I’m watching a movie or reading a story that has a rape scene, I end up feeling sort of the same way. The difference is a rape scene could be a powerful component in the plot and character development of teh story. I just see teh rapist as the evildoer and hope the victim can reach the third act with a good ending somehow.

    With fanfic where its straight-characters-having-gay-sex, or any character having out-of-character sex, the feeling is similar to watching a rape scene, except I suddenly become aware that I’m reading a story and the person who wrote it becomes the evil-doer of sorts.

    And having just hashed all that out in my mind right now, I really can’t imagine anyone encountering fanfic for the first time really putting their reaction into clear, concise, unambiguous, words. The fact that Diana resorted to metaphors is not surprising to me at all.

    ANd even after all that, I’m still not sure if what I just said will communicate to anyone reading it without being misunderstood, and I’m not entirely sure if what I said really accurately sums up how I actually feel.

    So, maybe because of that, I’m more willing to cut someone like Diana a little slack. This is some deep introspection to try and unravel some very emotional, visceral, and maybe even evolutionary (in our DNA) reactions. Nobody’s going to get it right the first time, the second time, or maybe even the thirtieth time.

    I’ve been aware of fanfic for a few years now, and that’s probably the first time I thought it through enough to figure out why I was having the reaction I was having or even to figure out what exactly kind of a reaction I was having. Before that, all i could tell you was “meh, not for me”. At least now, I have some handle on why.

  98. I suddenly feel compelled to quickly point out at least one possible mis-interpretation of what I just wrote:

    No, I do not think that people writing fan fiction are rapists or morally equivalent to rapists or whatever.

    I was talking about how I feel when reacting to certain fan fiction, and the thing about me trying to tell you about a feeling is I have to try and think of something that maybe we both have experienced in our lives, and just maybe you felt the same way during that experience.

    Oh god, I can see how this exploded….

  99. Greg @ 106

    *grins* yeah, I didn’t have any problem seeing both how and why her thread blew up the way it did…

    the problem with the examples, even with your disclaimer is, that they are too specific to experiences people *actually* have experienced…it’s one thing to say the idea creeps you out, it’s another to try to self identify with a character — any fictional character — and attribute them as having any kind of actual reaction to a situation, outside of one an author gives them.

    Human metaphors about feelings are always loaded, and people nearly always take such things as specific to them. It’s one thing to try to describe a feeling of horror, it’s another to project that feeling onto a specific group of people as the cause of that feeling.

    I just think that as a writer of some skill, she used some pretty over the top metaphors when it might have been a better argument for “less is better.” Equating anything with rape or child molestation is likely to punch all kinds of buttons that weren’t intended to be pushed…when a simple “reading what other people write about my characters makes me want to throw up in my mouth a little.”

    Still graphic but not quite as accusatory.

  100. Greg @ 105,

    What you’re describing there has been talked out in fanfic-based fandom as well, and even has a name: the Wave Theory of Slash.

    That’s the original version, written ~15 years ago, when slash fandom was much, much smaller. This is an updated version, and is probably a better description for what you ran into, as it focuses less on the writers and more on the stories themselves and how readers react to them. (It applies to het pairings as well, fwiw.)

    From what you said, it sounds like you want first-wave fanfic, to carefully build up the relationship and show you exactly how these people wound up together, so you can grow to believe it – you need to be convinced. Without that, you can’t buy it, and the characters seem off-kilter and strange.

    But the fans who wrote those stories wrote third- or fourth-wave stories, because they were writing for an audience that already accepted the pairing as a given; writing the careful buildup would have bored them.

    It’s much like the way SF writers now just say “the ship’s hyperdrive” (or jump drive, or warp engine, or FTL drive, etc.), without going into technical detail on how such an engine/drive/FTL device works. The SF audience has spent decades accepting FTL drives, despite the fact that in RL, FTL drives totally don’t work.

    No one writes “first-wave” SF anymore unless they want to write about some totally new FTL idea that no one else has ever thought of. Even though someone with zero experience of SF might have a negative reaction to being expected to toss the laws of physics aside and accept this random, unexplained “hyperdrive” thing, which would never work in reality.

    It’s the same with pairings. Fanfic readers and writers have put 40 years into building our own tropes and shortcuts, and we do less and less first-wave writing, even for new shows.

    “John loves Rodney” is as every bit as unremarkable to us as “the ship dropped out of hyperspace”.

  101. “John loves Rodney” is as every bit as unremarkable to us as “the ship dropped out of hyperspace”.

    I think that’s two different things.

    “FTL” is a standard SF theme. Because it’s a standard theme, writers can say “the ship dropped out of FTL” and move on, because most readers will be familiar with the concept.

    “John loves Rodney” can’t be a standard theme. “Boy loves boy” could be a standard theme, but John loves Rodney can’t.

    Harry Potter slash Draco Malfoy fanfic takes canon and purposely violates it.

    It may be that in fanfic, violating established canon is actually a theme of sorts. A subgenre in fanfic. I can imagine that some fanfic writers look for mainstream concepts in mainstream fiction and want to shatter them. Subvert the dominant paradigm, challenge authority, fight the man, rebel without a cause, and all that.

    It just isn’t what I’m looking for in my fictional reading. I’m much more of the mind that people just want to be left alone, and ought to be allowed to live their lives their way.

    And if a character is established as straight, and then some fan fic writer comes in and makes them gay, it rubs me approximately the wrong way as if some homophobic christian were to take the characters from Broke Back Mountain and write fan fiction where they “find god”, realize the error of their ways, and start having sex with women.

    When a character violates who the character has been, it invariably makes me aware of the writer.

    So, when I’m reading Potter/Malfoy, I drop out of the fugue state of being in the story and become consciously aware that I’m reading fiction and I wonder why the writer chose to do this with these particular characters.

    When I’m reading some SF story and it says “the ship dropped out of hyperspace”, I’m not wondering if the author has alterior motives.

    So, no, I don’t think they’re the same thing.

  102. Greg, there’s this perfectly wonderful standard answer to your (equally standard) objections to slash: don’t like, don’t read.

    You are not the measure of perfection; neither am I. What we like is not what determines what other people get to read or view. It’s all part of living on a planet which is not Camazotz.

  103. Arduinna@108: Fanfic readers and writers have put 40 years into building our own tropes and shortcuts, and we do less and less first-wave writing, even for new shows.

    My reading experience is somewhat different. Two examples:

    (1) A couple of years ago, I was following fiction in an animated-series fandom, including extended series involving both a canon pairing (het) and a popular non-canon pairing (femslash). Just about universally, the most popular works in both categories (as recognized via reader awards) were what you’re describing as “first-wave” — the writers focused on in-depth characterization in order to establish how the pairings’ relationships evolved into mature romance.

    (2) I’m presently following fiction in a much newer fandom with two primary pairings, one canon (het) and one non-canon (slash). Although the word-counts of the slash stories are much shorter, many of the works I’ve seen still ground their characterizations so as to make the romantic pairing believable within the context of both the individual story and the larger continuity. In this case, I’d say the split is about 50-50 between what you’re calling “first wave” mode and “third or fourth wave” (or whatever the current wave is).

    More generally, I’d disagree that fanfic writers have developed different or unique craft-techniques than those used by prose fiction writers generally. If that were the case, then it would be possible to distinguish fanfic from other prose fiction purely by examining unlabeled texts — which I don’t think it is.

    Rather, I suspect many fanfic readers are simply willing to overlook the omission of character groundwork from a text if they’re already emotionally invested in the pairing on which that text focuses. Nor are they necessarily unique in this regard; one might argue that character groundwork becomes less significant in the later volumes of many commercially published genre-fiction series as well.

  104. Greg, there’s this perfectly wonderful standard answer to your (equally standard) objections to slash: don’t like, don’t read.

    oh my god.

    maygra and I were having a conversation about the sorts of negative reactions there are to fanfic. At one point she said “the slow but sure acceptance that all things “gay” are not necessarily perverted… slash is coming close to being less of a shocker every year.”

    At which point, I tried to explain that at least for me, my reaction had nothing to do with it being gay sex, and everything to do with it being straight character being written into gay sex by fanfic writer. Just as much as I wouldn’t like Broke Back Mountain fanfic written by some homophobes who turn the cahracter straight.

    I have never said fanfic is wrong or immoral or whatever. It’s a genre that has at least a couple of subgenres that I really don’t care for, like the way I don’t care for horror in general, and not like I’m a homophobe or, ew, sex.

    And at least some fanficcers can’t seem to grasp that people not liking fanfic doesn’t have to be driven by homophobia or prudishness or (insert negative judgement about people who don’t like fanfic). Some people just don’t like it as a genre, not as some kind of moral judgement.

    The other thing I was trying to do was get at a more concrete reason as to why I don’t like it, not as “proof” of how bad it is, but because I get that getting at that sort of thing is hard. I get how Diana, when exposed to fanfic for the very first time, grasped around for straws trying to communicate how she felt about it. It isn’t easy.

    And now that I dug around in the mental muck trying to get a better handle as to what are some of the things about fanfic that doesn’t work for me, I get the standard, canned response “if you don’t like it, don’t read it”, which is just soooo missing the point of the conversation I was having on the thread.

  105. Greg: as tired as you are of that phrase, those of us who are engaging on the other side are tired of what you have said about your reactions. Cliches get to be cliches in the degree that they reflect reality.

    But don’t let me discourage you from your introspection.

  106. *Just as a point of interest, I was a bookseller for 12 years, and had several customers tell me about the sex scenes in her books. Some were pro (“My friend told me to read these books for the sex scenes, and she was totally right, they are so hot, this is best thing to happen to my sex life in years!”) and some were con (“What is up with all the sex all the time? Where’s the story?”), but one thing you can’t say about her books is that they’re sexual-fantasy free. :D

  107. Greg@112:
    It’s a genre that has at least a couple of subgenres that I really don’t care for, [...] Some people just don’t like it as a genre, not as some kind of moral judgement.

    Except that fanfic isn’t a genre in anything like the same sense that SF or horror or mystery or romance are genres. The label “fanfic” is just that, a label; it’s a descriptor of an authorship category. It is NOT a qualitative descriptor of textual content.

    Which may, in fact, be exactly the reason that so many discussions of fanfic derail in the way they do, because so many participants tend to use the term as if it did describe intrinsic textual characteristics.

    Now Arduinna is not entirely wrong above; the nature of fanfic writing communities tends to reinforce a certain commonality of storytelling technique. But fanfic communities don’t have a monopoly on these matters of craft; category/genre romance runs along some of the same tracks, and certain parts of the emerging paranormal genre owe a good deal to fanfictional literary theory.

    The point, though, is that most statements about “not liking fanfic” arise from issues of content. Yet if fanfic per se is not itself definable in terms of content, such statements are necessarily invalid on a logical level.

  108. This is one of the best academic articles I’ve found on the subject, so far. It was published in 2009 in the International Journal for Learning and Media.

    “Let Everyone Play: An Educational Perspective on Why Fan Fiction Is, or Should Be, Legal.” Lewis, Black, and Tomlinson.

    http://www.mitpressjournals.org/doi/pdf/10.1162/ijlm.2009.0007

    That’s about all I have to say. It’s longer than the average argument I’ve seen in these posts recently, but it’s very well justified. :)

  109. Greg @ 112

    Have no fear, I understood where you were going with it. And I get the whole get a handle on it, because I am, as a slash writer one of those people who frequently says, on seeing a pairing I like and knowing I *want* them to be together, still have to justify to myself, how two guys, who otherwise appear straight, would suddenly be attracted to each other…i.e. I most often have to work my way through the “first wave” of a slash pairing even if I recognize that once I’ve justified it to myself, I no longer need to rationalize it in every story I write about that pairing.

    I do admit that you kind of both proved Arduinna’s point and missed it at the same time.

    I get that you don’t see how FTL drive and John/Rodney could possibly be similar in acceptance, but I can tell you that it’s true — within a given fandom, certain pairings become accepted without further or minimal explanation, no matter how unlikely they might appear to be in canon.

    (keep in mind that a large amount, if not the majority, of slash also deals with media fandom rather than lit fic. I.e. we work from spoken dialogue, visuals, character/actor chemistry — a whole other set cues that aren’t strictly textual. So, when we watch Pirates of the Carribean, it’s pretty clear that Johnny Depp flirts like he breathes, and that Orlando Bloom kind of oozes that take me if you can vibe for some people…so honestly, it’s not a stretch to see them together, despite the character’s on-screen attractions to the opposite sex.)

    In other pairings it’s not as clear nor always as easy…but honestly, in the realm of “Romantic” fiction which slash falls into, stranger things have happened over the history of het romances… the notorious bodice rippers where the heroine falls in love with her rapist/captor/master/murderer of her fiance.

  110. John: fanfic isn’t a genre in anything like the same sense that SF or horror or mystery or romance are genres.

    Meh. I dislike horror in general, but there have been a few stories I’ve read or movies I’ve seen that were in the horror genre that I thought were really good. I think it’s safe to take “horror” and use it to describe “what is often seen in the genre” while knowing that not everything in the genre confines itself to the “norm”.

    And I mentioned earlier up thread that I don’t know what proportion of fanfic is, say, slash or mary sueisms, but they certainly get a lot of attention. Not all horror is so moronic as to have the same process of slowly splitting off the group as they mindlessly wait for that thing out there to kill them.

    But enough horror is just that bad to the point that one can spoof it as such on something like Saturday Night Live and the audience will laugh a knowing and understanding laugh.

    Whether it is fair that horror has that kind of reputation is another thing. Whether it is fair that fanfic has the reputation of being all about slash and sex and a bunch of mary sues, is, well, irrelevant on some level. It’s the reputation it has.

    It’s often that sort of stuff that is the mainstream person’s first exposure to fanfic. It sounds like thats exactly the sort of stuff that Diana read as her first exposure to fanfic of her world and her characters. And whether it is fair or not, isn’t the point. My point was simply that I can understand her reaction.

    Maygra: Johnny Depp flirts like he breathes, and that Orlando Bloom kind of oozes that take me if you can vibe

    OK, from that perspective, I can get how some would accept PiratesotC slash. It’s a different sort of thing than a theme like “FTL” but, I can get what you’re saying.

    With Potter/Malfoy, not so much.

    But even with Pirates slash, even though I’d be less likely to fall out of the story because the characters have a lot of sexual energy around them in the original movies, I think I’d still wonder what the author was up to that they had to turn them gay.

    How would you react to fanfic of Brokeback Mountain where the two men realize the error of their ways and go straight? I’d be wondering about the motivations of the fanfic writer in such a case. I don’t think I could not wonder aobut the author’s motivations.

  111. I’m not going to get heavily into the current debate, and in any case I’m not really a slash fan as such (I read it occasionally but on the whole read more het and gen, sometimes femslash), but I do feel that two things should be pointed out:

    Firstly, slash does not mean “sex between two canonically straight men”, it simply means “a romantic and/or sexual relationship between two men”. These days, anyway (the meaning has changed over time). So some of the slash pairings are very much canon (see: Torchwood fandom) and some are non-explicit.

    Secondly, it isn’t always a matter of “straight guy turns gay”… there is such a thing as bisexuality. Which the best slash authors clearly remember.

  112. there is such a thing as bisexuality

    I don’t see how that changes anything I just said.

    Straight-turned-gay or gay-turned-straight would throw me out of suspension of disbelief just as easily as straight-turned-bi.

    they’d all make me wonder why the fanfic author chose to change the character that way.

  113. The difference is that by making a character bi rather than gay, you’re not rejecting all of the feelings they’ve canonically been shown to have for people of the opposite gender.

    I mean, how many people on TV are explicitly labelled “straight”? You generally infer that they are because of who they date, but that’s just an assumption not a fact. Thus it’s not necessarily “changing a character” by writing them bi.

  114. @ Greg,

    I’m late to the discussion, but the problem with the Lexicon was that the text was approximately 90% direct quotes from Rowling’s work. Even though it was properly attributed that still far exceeds Fair Use. After that whole mess was done the author of the Lexicon rewrote it so that the quotes were at a more appropriate level and added a great deal of original work to it. That new version of the Lexicon was then run past Warner’s lawyers and okayed by them for publication.

    Here’s a pretty good rundown of what happened:

    http://wiki.fandomwank.com/index.php/Lexicongate

  115. how many people on TV are explicitly labelled “straight”?

    Uh, how many people on TV who are bi or gay are “stealth” bi or gay?

    Dumbledore was stealth-gay. Rowling revealed his orientation after she’d made more money than the queen and didn’t care about mainstream backlash.

    How many stealth-bi characters do you think exist in canon and the authors just haven’t revealed it yet? I’m going to guess very few.

    the problem with the Lexicon was that the text was approximately 90% direct quotes from Rowling’s work

    Yeah, and from an author’s point of view, it can be lumped into the same pool as fan fiction. i.e. an author isn’t required to distinguish fan fiction from fan encyclopedias. The law doesn’t. An author may simply distinguish works that are derivative of the original but were not authorized by the original author. Some of those works will be allowed by fair use. Some won’t. Fan fiction isn’t some magical category that always qualifies as fair use. Sometimes it infringes.

    Fan fiction writers and readers seem to have a rose-colored glasses view of fan fiction. part of that seems to stem from an interesting tautological definition of fan fiction: Fan fiction seems to be defined by the fans as something that is always fair use, always legal, always harmless, therefore fan fiction is legal, harmless, and fair, because that’s how it’s defined.

    Try pointing out to the fans that the Harry Potter Lexicon was ruled infringing, and rather than simply acknowledge that yeah, it infringed, the reaction focuses on “that isn’t us, we’re always legal”

    I think it was most exmplified by bookshop‘s letter which listed a long laundry list of works that were legitimate, fair use, derivatives of someone else’s works.

    But with all those examples, she never once mentioned a case of fan fiction, a derivative of any kind, that infringed. Not once did she mention cases of fan fiction writers suing the original authors for infringing on a fan fiction story, causing all sorts of undue grief on the orginal author. And that’s just not an honest appraisal of fan fiction. It’s a white-hat, we-do-no-wrong, appraisal of fan fiction. It misleads the authors who are unfamiliar with fan fiction and have just run into it, and it misleads people who like fan fiction but don’t know a lot about it.

    Fan fiction isn’t perfect. The Harry Potter Lexicon is a famous example of a fan-derivative infringing on the original text and requiring a fricken court ruling to put a stop to it. Not all fans creating derivatives are reasonable, legitimate, and level headed.

    Authors would do well to protect themselves from fan-fiction issues by, at the very least, adopting the rule of “Don’t ever show me your fan fiction”. This so that they can at least avoid getting sued by a fan-fiction writer for infringing on the fan’s story. It’s exactly why Scalzi has that very same policy about fan fiction. He doesn’t want to see it because he can get sued for it. It applies to unpublished manuscripts too. Same issue. Different category.

    And yet, the battle has been portrayed as shrill, evil, author who is overreacting, over emotional, uneducated in law, and just plain wrong, comes out and picks a fight against innocent, never-did-nothing-wrong fans and fan fiction writers.

    Sometimes fan based derivatives infringe on the original material. THat the HP lexicon is a famous example is no less diminished simply because it wasn’t fiction. And sometimes fans end up suing the original author for infringing on the fan’s fiction. Which is why most authors aware of fan fiction have a “for the love of god and all that is holy, do not show me your fan fiction” rule.

    Portraying this as evil and ignorant author against pure innocent fan fiction is just silly, and it’s misleading to the uninformed.

  116. Greg: I get how Diana, when exposed to fanfic for the very first time, grasped around for straws trying to communicate how she felt about it.

    This is a slight aside but, for the record, Diana Gabaldon’s fans in her compuserve Books and Writers forum did say over the last couple of days that they had discussed and traded Outlandish fanfiction among themselves in Diana’s presence. (Mind, they said this while Diana was in the forum with them and she didn’t disagree so I’m going to assume her peeps were being honest.) Diana herself is on record for years as knowing what fanfic is and not caring for it but had never slapped it down in a definitive manner until now. To me that seems like a lot of mixed signals.

    In any case, this was not the very first time she was exposed to fanfic. For someone who has had years to find a way to express herself properly, I think she could have handled it better.

  117. Greg@124:
    Yeah, and from an author’s point of view, [the Harry Potter Lexicon] can be lumped into the same pool as fan fiction.

    You keep saying this, but can you point us at any written statement from an author who’s actually made this (erroneous) linkage?

    Fan fiction isn’t some magical category that always qualifies as fair use. Sometimes it infringes.

    It would be more accurate to say that it may infringe, given that no statute, no court case, and no judicial ruling exists squarely addressing an allegation of copyright infringement involving the noncommercial publication of an unauthorized fictional derivative work.

    The Lexicon case doesn’t count, since (a) it involved nonfiction, not fiction, (b) it involved commercial publication, not non-commercial, and (c) it was brought not by Rowling, but by Warner Brothers. [Note further that WB hasn't sued -- successfully or otherwise -- to restrain the authors of the hundreds of thousands of Harry Potter fanfiction stories now circulating on the 'Net.]

    That said, there is one incident that may qualify as admitted infringement: that involving The Holmesian Federation and Chelsea Quinn Yarbro. I say “may”, because it’s been far too many years since I saw one of the retraction advertisements published as part of the negotiated settlement between Yarbro and the fans involved, so I don’t know what exactly may have been acknowledged in those ads. Certainly Ms. Yarbro believed that the fanwork infringed, and was able to enforce that belief — but even that isn’t binding legal authority in and of itself.

  118. How would you react to fanfic of Brokeback Mountain where the two men realize the error of their ways and go straight?

    I’d say “why is that fanficcer rehashing something something that already happened in canon?”

  119. The Lexicon case doesn’t count,

    Oh god.

    (a) it involved nonfiction, not fiction,

    It was a derivative. No one has to look at derivatives of their works by the labels you created. The only thing that matters is whether it is a derivative or not and whether it infringes or not.

    What you call fan fiction can be derivative and can infringe.

    (b) it involved commercial publication, not non-commercial, and

    Irrelvant by itself. Making money is only one point out of four in determining whether a work in infringing or not.

    Say this with me: non commercial is not an automatic exemption.

    (c) it was brought not by Rowling, but by Warner Brothers.

    Again irrelevant. Publishers have authors sign over the rights to the work to publish the work and the right to enforce copyright if they so choose.

    it’s still copyright law.

    You keep harping about fan fiction as being unique because of where it’s from (fans) and now you’re arguing the lexicon case is unique because it wasn’t the author.

    It doesn’t matter. In the eyes of the law, that’s irrelvent. All that matters is whether it infringes or is fair use (doesn’t matter who did it, just that they didn’t have the rights to do it), and it doesn’t matter if teh author pursues enforcement or the publisher. Either way, it’s whoever holds the rights to the work.

    fan fiction is not special in the eyes of the law. It is not exempt. It is possible for fan fiction to infringe. And being noncommercial isn’t by itself a get-out-of-jail-free card.

  120. Greg @ 134:

    How many stealth-bi characters do you think exist in canon and the authors just haven’t revealed it yet? I’m going to guess very few.

    So not only does canon include what is written on the page (or filmed), but what’s in the author’s (or scriptwriter’s) head? Even if said author has never spoken it out loud and so we’re apparently meant to guess?

    What all those TV shows where somebody has a gay relationship who’s previously only been with somebody of the opposite gender? Grey’s Anatomy did it, Buffy did it, Torchwood did it, etc. The scriptwriters probably didn’t start by thinking of those characters as bi, it just developed later. Why can’t fanfic writers do the same?

  121. Greg @128

    I’m not going to argue your points – because you’re correct, some fan fiction may indeed infringe, may not be covered under fair use, and may, indeed be legally actionable.

    The actual case law regarding fan fiction is minimal — even with The Lexicon which, while yes, I suppose could be considered a kind of fan fiction, but also was blatant about using the author’s own words, whereas the vast majority of of fan fiction may use characters or setting or themes — it rarely, rarely uses the actual source text and lifted dialogue.

    The problem — or the point wherein there seems to be some headbutting is this: You appear to be leaning toward the default stance that while some fan fiction may prove not to be infringing, the vast majority of it probably is, whereas a good many people on the other side of the table (and this table specifically) are allowing that while some fan fiction may yet prove to be infringement, the vast majority of it does not.

    And there, our debate draws up rather shortly because there is simply not enough case law on the ground, at least in the US, to prove or disprove either stance.

  122. Lanta: So not only does canon include what is written on the page (or filmed), but what’s in the author’s (or scriptwriter’s) head? Even if said author has never spoken it out loud and so we’re apparently meant to guess?

    I question author intent whether its the original author or fanfic author.

    I question author intent when it’s Rowling revealing Dumbledore’s orientation in a book signing adn not in the actual text. I think she waited until she had more money than god and it was essentially too late for backlash to really affect anything.

    I question fanfic intent when they take a character that’s in every canon story been shown as straight and rewrites them as bi. ANd yes, I consider that rewriting.

    When it’s done in canon, changing things up like that is sometimes called retconning, and sometimes its called worse. The latest Star Trek reboot had a scene where one of the characters says “we’ve altered the timeline, anything that would have happened to us in the future has changed”. I look at that and say author intent around that had nothing to do with it being what was right for the story, adn everything to do with what would allow the franchise to continue and not have to remake all the old ST movies with the new cast.

    So, yeah, I regard author intent and author motivations as fair game, whether it’s the original author or whether its a fanfic author.

    Maygra: You appear to be leaning toward the default stance that while some fan fiction may prove not to be infringing, the vast majority of it probably is

    No. I used the word “some” simply to avoid arguments of proportion like you’re talking about now.

    But “some” is vasly different than “none” or “all”. And “none” is exactly how many infringing cases of fan fiction or fan-based infringements were listed on bookshop‘s letter (linked in #124). In that letter, “all” examples provided were examples of non infringment.

    So, it isn’t a matter of proportion that I’m pointing out here. It isn’t that bookshop mentions “some” infringing cases but “most” are noninfringing. It’s that bookshop mentions “none” infringing cases and “all” examples provided are noninfringing and the entire case for fan fiction is given as if tehre are no issues whatsoever around fanfiction.

    If fanfiction defenders had acknowledge from the beginning that “some” fan fiction causes problems, I would not have raised the issue. The question of proportion is minor compared to the major difference between “some” and “none”, and that’s what I was red-flagging.

    And a very real outcome of problems arising due to the existence of fan fiction is some fan suing the original writer for infringement. Which is why most authors, whether they allow fan fiction or not, have the standard response of “Do NOT show me your fic.”

    If you want to talk about proportions, that is probably a bigger problem than fanfiction infringing on the original work. it affects every author, and they have to preemptively protect themselves by never reading fanfic.

    But we can’t talk proportions of “some” if folks insist that none of fanfiction is really a problem.

  123. Greg@128:
    You keep trying to argue the Lexicon case’s relevance by applying the principles of fair use. The point that you’ve consistently missed is that in context, it’s not the principles of fair use that matter, it’s the principles that govern judicial review. And according to the principles of judicial review, differences in facts from one case to another are grounds for reaching a different result.

    If and when an on-point court case arises over a work of fanfic, the Lexicon case will certainly be relevant authority. But it will NOT be controlling authority, because only then will a judge or panel of judges be in a position to rule as to whether the differences-in-fact we’ve been wrangling over are legally significant.

    And a very real outcome of problems arising due to the existence of fan fiction is some fan suing the original writer for infringement.

    If it’s real, then give us the case citations. I’m not aware of any such dispute that’s reached a courtroom, let alone one decided in favor of the fanwriter. [There are many cases where novice or aspiring writers accuse famous writers of plagiarizing their work, but that's a different situation entirely.]

    That said: one instance where such a case could conceivably have arisen — but didn’t — was the well-known if often ill-summarized matter involving Marion Zimmer Bradley and a fan writer.

    In that instance, the fan had written a Darkover story which MZB had read, and which overlapped with a novel MZB was drafting involving the same characters and setting. MZB and the fan disagreed about the amount and type of compensation the fan should receive for rights in the overlapping material; while most accounts mention the threat of lawsuits on one side or the other, in fact no such suits were ever filed, as MZB chose to abandon that novel. Had the case reached a courtroom, the fan’s contention might indeed have been that MZB’s text infringed on the copyright inherent in the fanwork (since, unauthorized or not, copyright in fanworks themselves rests with the creators of those works).

    There are also a handful of cases where fans have tried to publish unauthorized tie-in fiction commercially, but AFAIK none of those involve fan authors who’ve interacted to any degree with the pro creators prior to publication.

  124. Bunnell: the Lexicon case will certainly be relevant authority. But it will NOT be controlling authority

    And all I’m saying is that it’s relevent enough that one could mention it as an example of fan-created-material-turned-infringement.

    What you’re arguing, as far as I can tell, would be equivalent to me bringing up an example of fan-created-art, and you saying “but that isn’t fan fiction and wer’e only talking about fan fiction here.”

    It’s relevent enough that it ought to be possible to mention fan fiction, fan art, fan encyclopedias in the same thread without having to defend it from the fan defense attorneys.

    If it’s real, then give us the case citations.

    It’s real enough that almost every author who is sufficiently aware of fan fic asks fans not to show them their fiction.

    Would you recommend that Scalzi read fan fiction of his characters? His guidelines currently ask fans not to show him fan fiction. Are you saying its not a “real” problem, so go ahead and read all you want?

    If not, then it’s real enough of a problem that I ought to be able to mentino it in a thread about fan fiction without getting molested by fan-defense-attorneys.

  125. Greg, when your counterargument is that mean attorneys are picking on your interpretation of the law, it’s time to move on.

  126. mythago,

    I said “fan encyclopedia”.

    Bunnel said “but we’re talking fan fiction“.

    And I replied that I ought to be able to discuss fan art, fan fiction, fan encyclopedias, and other fan-generated works, without getting pounced by the fan-lawyers.

    That’s not an interpretation of law. That’s normal ebb and flow of a conversation moving around to various related topics. It’s related enough.

    IIRC, you’re a lawyer, and I’m guessing the real reason you’re responding isn’t because of anything to do with fan fiction or the thread in general but because I used the phrase “defense attorney” in a negative way. and if that’s really the only reason you’re commenting, I apologize for invoking a negative lawyer stereotype.

  127. Greg: You’re shifting ground.

    You said in #131 that fanwriters-suing-pro-authors was “a very real outcome” arising from the existence of fanfiction. But your assertion in #133 is that fanwriters-suing-pro-authors is a problem that arises when pro authors read fanfiction based on their works.

    These are very different assertions. As my summation of the MZB case should indicate, I’d agree that the latter situation could happen (although AFAIK, it has not in fact done so). But as I read #131 (and as I understand the word “real”), this is how its syllogism unfolds:

    A: Fanfiction exists.
    B: If fanfiction exists, then fans will sue pro authors over it.
    C: Fans have therefore sued pro authors over it.

    (The tense shifts in C because “real outcome” describes something that has happened, not something that may or will happen.)

    If that’s what you meant to say, then it’s reasonable for us to ask for details. If that isn’t what you meant to say, then a polite “Oops” may be in order.

  128. John: You said in #131 that fanwriters-suing-pro-authors was “a very real outcome” arising from the existence of fanfiction. But your assertion in #133 is that fanwriters-suing-pro-authors is a problem that arises when pro authors read fanfiction based on their works.

    I keep saying that real authors have real guidelines that say, no, really, do NOT show me any fanfic you wrote of my worlds or characters. I keep saying it is a real problem that real authors try to protect themselves against by having such guidelines.

    If you want to make the discussion about why it became a real problem: because fanfic exists or because fanfic was read, and ah ha! you said this and it has to be that, well, if you want to beat that horse, that’s your choice.

    Given that I can’t recall you ever acknowledging that fan fiction has ever created any real problems for any author, ever, if you want to acknowledge that, yes, actually, fan fiction does cause some real problems, then I’ll acknowledge that I may have been sloppy as to whether it was because it exists or was read.

    What’s more important to me is the difference between “some” and “none”. And as far as I can tell, you’ve thus far managed to have none of your comments mention a real problem from fan fiction.

  129. Greg @135, while I appreciate the thought, I fall more into the evil-trial-lawyer end of the lawyer stereotype spectrum, so I’m not offended.

  130. Greg@137:
    I can’t recall you ever acknowledging that fan fiction has ever created any real problems for any author, ever.

    [glyph of astonishment]

    Either we’re not reading the same comment-stream, or you and I have very different definitions of “real problem”.

    I would certainly agree and acknowledge that the specific cases I’ve mentioned, involving Marion Zimmer Bradley and Chelsea Quinn Yarbro, created real problems for those two authors and for the fanfic writers involved. Moreover, those problems had significant legal dimensions. But both of those cases were privately settled, without resort to the courts and therefore without creating binding legal precedents.

    And that’s been my point all along — that since there is no binding legal precedent, any analysis of fanfiction’s legal status is speculative at best. The blanket assertions that “fanfic is illegal” or “fanfic is legal” are equally slippery, until a firm court precedent is finally set (and IMO, the Lexicon case is not squarely enough on point to serve as such a precedent, although I grant that you and I clearly don’t agree about that).

    Given that the legal environment is as gray as it is, the results of interaction between authors and fans over fanworks are…unpredictable. Cautious authors are likely well advised in avoiding fanfic based on their own works. And yet there are counterexamples; Katherine Kurtz’s Deryni series hasn’t been harmed to date by Kurtz’s long involvement with Deryni-related fanzines, for instance. And recent developments, whereby a number of authors have cited Creative Commons licensing schemes in giving approval for fanfiction, appear both legally and practically promising.

    Ultimately, I’d like to see both fanfiction communities and professional writers thrive and prosper — and I don’t think that those two goals need be mutually exclusive.

  131. or you and I have very different definitions of “real problem”.

    yeah, probably that one.

    there is no binding legal precedent

    I don’t really care if there is or is not “binding legal precedent” about fan fiction. What I care about is that fan fiction creates problems. Authors are best to NOT read fan fiction due to the potential legal problems it can entangle them into. And once in a while, fan fiction, fan art, fan dictionaries, fan works, overstep and enter into infringement.

    whether there is “binding legal precedent” or not doesn’t change the fact that they’re problems.

    They’re relatively tolerable problems and can be dealt with as they coexist with original authors, but they’re problems.

    But my point remains that fan fiction creates some problems, and at least in this particular case involving Diana, I don’t recall anyone who dogpiled Diana actually admitting that any problems exist around fanfic.

    The “bookshop” link being the perfect example of a long detailed post that only lists the virtues of fan fiction, legal derivatives, etc, while completely ignoring any and all cases of legal infringement.

    It’s a problem, it’s a tolerable problem, but it’s a problem. And I think it would help fanfic and authors get along a little better if fanfic could admit there are occaissionally some problems in the realm of fanfic.

    Yes, everything bookshop said was true, but it wasn’t complete. It was teh truth and nothing not the truth, but it wasn’t the whole truth.

    authors have cited Creative Commons licensing schemes in giving approval for fanfiction

    Yeah, having been around CC since way back when, they still have some issues as far as I’m concerned about what exactly their “NonCommercial” license means. It appears to be about as murky as “Fair Use”. Which means it’s fairly useless as a license when push ever comes to shove.

    I generally describe the CC-BY-NC-SA license as the “fan fiction” license. It requires attribution to the original author, noncommercial use only (whatever that means), and ShareAlike so that all fan fiction is copylefted and can be derived by other fans.

    But that CC license still doesn’t solve the “Please don’t ever show me your fan fic of my world/characters” that the original author has to deal with.

    What that license does do is say that fan fiction writers can write anything, whether it is fair use or not, so long as they dont’ try to use it primarily for commercial purposes. This means fans don’t ahve to try and avoid non-canonical stories because the closer to teh original it is, the more likely it isn’t fair use.

    OK. If an author doesn’t mind that, fine. But what that means is it removes teh complicated issue around waht is “fair use” adn replaced it with the complicated issue of what “non commercial” means.

    And my experience on the CC mailing lists is that most people (and I’m talking proportional here, not some/none/all, but greater than 50%), most people do NOT know that the CC-NC license allows people to sell the work for money. It only requires that that is not primarily a commercial enterprise, whatever that means.

    So, maybe it makes the murkiness of “fair use” go away, but it replaces it with the murkiness of “CC-NonCommercial”. And it does nothing about the “Don’t show me your fan fic of my world” problem.

  132. Grag@140:But that CC license still doesn’t solve the “Please don’t ever show me your fan fic of my world/characters” that the original author has to deal with.

    That is rather easily solvable by the author not reading fanfic- believe me, all fanfic I ran into to date has been very clearly labeled as such, including fandoms, as well as (usually) rating, pairing(if any) and applicable warnings.All an author needs to do is not read said fanfiction.This is a prime example of something to be solved using common sense rather then legal tools.

    CC-NC license allows people to sell the work for money.

    could you cite examples please, as a matter of interest?

  133. The “fanfic” license (cc-by-sa-nc) is here:

    http://creativecommons.org/licenses/by-nc-sa/3.0/us/

    The legal code is here:

    http://creativecommons.org/licenses/by-nc-sa/3.0/us/legalcode

    Section 4c says: “You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”

    The “primarily intended for” applies to “commercial advantage” and “monetary compensation”. So, you can get commerical advantage or monetary compensation for CC-NC works, just so long as it isn’t “primarily intended” for that.

    There’s been a lot of discussion about this on the CC email lists. Years of discussions. Years and years of discussions. I was involved in a number of those years of discussions. Usually it would start because someone would email the list saying they were thinking about using the NC license, but wanted clarification on what exactly it allowed. endless discussions with no clear answer woudl ensue. I generally pushed CC to to modify the license to use a clear-cut, no money exchanging hands at all, language. But CC’s lawyers specifically wanted to allow for some money changing hands, just not a lot.

    After a few years on the lists answering the same questions over and over again, I eventually unsubscribed. It’s been a while since I’ve been involved directly in the conversation. I can’t recall any specific examples to cite for you. I just remember all the wrangling on teh emails trying to square away what exactly NC meant, and CC basically saying they purposely wanted *some* allowances for commercial use, even in the noncommercial license.

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