Recent events have brought fan fiction out of the hidden realm of über-fans and into mainstream media. For the first time, many authors are learning of the existence of fan fiction and wondering how it might affect them.
Let’s take a look at what fan fiction is, what it means to authors, and what they can—or should—do about it in regards to their work. Most importantly, we’ll talk about why authors should care.
What Is Fan Fiction?
Fan fiction (also known as fanfic) refers to stories written by fans about the characters, situations, or world of existing works created by others. Some fans of movies, TV shows, and books want the story to live on in their head. Maybe they relate strongly to a character. Maybe they wanted the story to end a different way. Or maybe they imagine the characters in a different situation.
In that regard, many authors feel honored by fanfic. The fact that someone wrote fanfic for their work means that something about their story resonated strongly with readers. Most authors consider that feeling of connection a good thing.
Websites such as fanfiction.net exist for fans to share their stories. The fanfic authors post their version of the characters and world, and readers can comment on the story, giving feedback or encouragement. Most fanfic stories include a disclaimer stating that the characters and world belong to the original author and that no copyright infringement is intended.
Even so, some authors get uncomfortable when they think about those fanfic stories being shared with others. Will someone else’s take on the story affect how readers feel about their characters? Will readers get confused between the real version and the fanfic version of events? What if a fanfic author’s version of the characters offends the original author?
Is Fan Fiction Legal?
According to U.S. copyright law, the original author has exclusive rights to develop derivative works based on their stories, characters, or worlds. And U.S. copyright law defines derivative works as “work based upon one or more preexisting works.” That “based upon” phrase is pretty broad.
The LegalZoom website advises users that derivative work “is a new, original product that includes aspects of a preexisting, already copyrighted work.” That “includes aspects of” phrase is similarly broad.
The Chilling Effects website states that the prevailing rule seems to be that the more detailed a character, setting, or plot is, the more those elements are copyrightable separate from the original work. Aspects that are “distinctly delineated” are protected even if the general copyright for the story as a whole doesn’t apply. This means generic plots (boy meets girl) or characters (sidekick) are not copyrightable on their own, but that the main characters or specific plot details might have copyright protection in addition to the overall copyright of the original work.
In general, the courts try to balance protecting copyright and allowing creative uses of copyrighted work. The courts also take into consideration the marketing activities of the fanfic author. If the fanfic is purely non-commercial, the courts are more lenient than if the fanfic author attempts to profit off their work.
In other words, legal challenges in regards to derivative works have limited precedents and aren’t black-and-white decisions. And of course, copyright issues are entirely different in other countries.
How Do Recent Developments Change the Fan Fiction Landscape?
For most of fanfic history, everyone understood that fanfic authors shouldn’t make money off their work. Not only is profiting off fanfic disrespectful to the original author, but it weakens the fanfic author’s defense in any copyright claims.
However, fanfic is currently in the news because the bestselling-series-slash-major-media-story Fifty Shades of Grey by E.L. James started as Twilight fanfic. James took the characters of Stephenie Meyer’s Twilight books (and movies), swapped out Seattle for Twilight’s Forks setting, and gave the hero a BDSM background instead of Twilight’s vampire world-building.
The success of these books has many fanfic authors wondering if they should publish their fanfic works for profit as well. The Twilight fanfic fandom is being torn apart by this issue, as many come down strongly on the side of “profiting from fanfic is unethical” and others believe that the fanfic author deserves something for their work.
Many people wondered how Stephenie Meyer would react to the situation. Would she take James to court? This week, she answered questions from MTV News about the Fifty Shades of Grey books. Her response? ”I’ve heard about it … Good on her — she’s doing well. That’s great!”
Legally, that comment doesn’t mean she (or her publisher, or the movies’ Summit Entertainment, or her estate after she dies) won’t take the issue to court somewhere down the line, but it looks less likely. Her decision will likely further push the fanfic community toward an attitude of “profitability is okay.”
What Does This Mean for Authors?
In some respects, these changing attitudes are yet another indication of how the creative writing process is underappreciated. We have book pirates claiming that all content wants to be free, readers complaining about ebook prices that are less than the cost of a movie ticket, and non-writers proclaiming that changing the name of a character or a few superficial traits makes them new and unique.
Authors should understand fanfic—its pros and cons—and decide how they want to approach the issue. As an author gets more popular, the chances of having fanfic based on their work increases, but so does their clout, income, and motivation to enforce takedown requests.
On the opposite side of the copyright issue, some authors worry about a fanfic author claiming they stole their idea. With everything online, an author couldn’t prove they weren’t exposed to the fanfic story. (A similar scenario happened to Marion Zimmer Bradley and one of her books was scuttled as a result of the fallout.)
What about concerns for how characters are portrayed? Personally, I’m one of those authors who talks to her characters, in a “they’re just as real to me as my friends” way. That sense of intimacy also means that hearing about some wild out-of-character exploits in a fanfic might damage the relationship I have with them.
What Choices Do Authors Have?
Many authors have “disallowed” fanfic, which in essence means that they request fanfic websites remove fanfics based on their work, and hope that people respect that request. Authors Diana Gabaldon, Larry Niven, Anne Rice, J.R. Ward, and Orson Scott Card have spoken out against fan fiction. A part of me doesn’t blame them. After all, if the fanfic community doesn’t respect the original author’s rights, why would the author respect the fanfic community?
Other authors encourage fanfic in a “keep the readers happy” way. Still others allow fanfic but put restrictions on it, requiring fanfic authors to fill out a form and request permission (authors such as Chelsea Quinn Yarbo, Mercedes Lackey, and Marion Zimmer Bradley fall into this category).
I respect what fanfic does and explores, but I don’t like the pull-to-publish movement (pulling stories off free fanfic websites to publish for profit). It takes a lot more than just changing the name or other superficial details to erase the essence of the original author’s characters. Unless the essence of the character (history, family background, worldview, religious beliefs, moral code, self-image, self-delusions, strengths, flaws, goals, etc.) was changed, the characters in a fanfic still belong to the original author.
But with the iffy reliability of the court system to rule in favor of the original author, authors would be wise to try to prevent issues ahead of time. Between the new profiteering attitude and the potential for counter copyright claims, I think authors should have an official fanfic policy in place. Whether that policy is open or restrictive is up to the author, but a statement of our attitudes might hold off bigger issues.
Personally, I’m tempted to try to find a middle ground, where authors allow fanfic, perhaps under a policy that all stories labeled as fanfic of their books (and any money collected as a result of those stories) belong to the original author. A policy like that would give fanfic authors freedom as long as they don’t try to make any money from it, and it would protect authors from someone claiming the author stole their ideas.
Along those lines, one author has suggested offering Creative Commons BY-NC-SA licenses on our work, which would allow fanfic for non-commercial uses only. Whether or not any of those policies would stand up in court is an entirely different matter, however. *smile*
Do you have any questions about fanfic? Do you think authors should have a fanfic policy? What seems fair to you? Do you have a policy? What does/would your fanfic policy look like? What concerns you most about fanfic? What doesn’t concern you?
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©2012 Jami Gold, Paranormal Author. All Rights Reserved.
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When Does Fan Fiction Cross an Ethical Line?
What Makes a Character Unique?
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