This Essay is an LRC Online Original
Friction over Fan Fiction
Is this burgeoning art form legal?
Last October, J.K. Rowling startled the world with the revelation that Albus Dumbledore was gay. This was widely reported. Less reported was the remark she made following that revelation: “Oh my God, the fan fiction now, eh?”
Fan fiction? It’s no secret that J.K. Rowling has a tremendous following. Unknown to most people, however, is the burgeoning online community of Harry Potter fans who amuse themselves by writing their own stories set in Rowling’s fictional world. And the phenomenon is hardly confined to Hogwarts. Fascination with the imaginary worlds of television shows, films and books has prompted devotees — the vast majority of them women — to respond with their own amateur creations. The Man from U.N.C.L.E., Buffy the Vampire Slayer, Star Wars, X-Files, Xena: Warrior Princess and, of course, Lord of the Rings are among the many works that have inspired fans to write their own stories using the characters and settings from the works they love.
This is fan fiction, and it is all over the web, at sites such as www.fanfiction.net and www.sugarquill.com. Although its roots are in the science fiction book world, the phenomenon really took off with the TV series Star Trek. By the series’ second season in 1967, fans were writing their own episodes and sharing them with like-minded friends. Drawing on Star Trek characters and settings — referred to as the canon — they placed the characters in narratives not contemplated by the show’s writers, very often with subversive results. Most famously, these early fan writers perceived a repressed sexual passion between Mr. Spock and Captain Kirk and began writing stories exploring this relationship. Thus was started a roaring sub-culture of fan writing, largely by women and for women, about homoerotic relations between ostensibly heterosexual male characters. Stories of such relationships — known as slash from the “/” used to connote a pairing (such as Harry Potter/Severus Snape) — continue to make up a major proportion of fan fiction.
Social scientist Camille Bacon-Smith, in her book Enterprising Women, identifies a number of sub-genres beyond slash that give a good sense of fan fiction’s diversity. Sub-genres include mpreg (where a man gets pregnant), deathfic (where a major character dies), curtainfic (where the characters, typically a gay male pairing, go domestic and engage in such comfortably bourgeois exercises as shopping for curtains together) and AU (alternative universe, where the characters are displaced into an entirely new fantasy setting). Sexually explicit sub-genres — often tagged as “kink” or “with plumbing” — include PWP (porn without plot or “Plot? What plot?”) and BDSM (bondage and discipline, dominance and submission, and sadomasochism). And universally deplored as the worst cliché in the genre is the Mary Sue story, in which the fan writer writes her thinly veiled self into the plot. “Infinite diversity in infinite combinations” is fandom’s abiding motto.
Originally published in hand-stapled mimeographed pages called fanzines, collections of these fan fiction stories were distributed in the early days as a kind of pop-cultural samizdat — undercover publications handed out from boxes under tables at fan conventions or stuffed into envelopes and mailed to fan community members from volunteers’ basements. But fan fiction migrated to the Net in the mid 1990s, where it has since exploded in size and scope, generating vast ad-supported fan archives, blogs and hundreds of individual fan websites. The fandom of Harry Potter alone has generated hundreds of thousands of fan fiction works, ranging in size from exactly 100 words in length, (tiny vignettes called drabbles) to full-length novels. Today, a Google search of “fan fiction” brings up over 26 million hits.
Fan fiction, as a consequence, has become highly visible to fans, non-fans, authors and media companies alike. A poster child for the new ethos of participatory culture, it is at the heart of a “free culture” movement that celebrates the making of user-generated works and “appropriation art,” and seeks to liberalize laws to let individuals remix and mash-up others’ copyrighted works to create their own. Not coincidentally, all this is happening at a time when debate over what is fair in the fair use of copyrighted works is receiving more attention than ever before.
Henry Jenkins, author of Textual Poachers: Television Fans and Participatory Culture, argues that the impulse to write fan fiction is no different from the creative impulse driving any other narrative genre. It is part of a fundamental human need to tell stories, part of a “shared cultural tradition” dating from Homer onward. According to Jenkins, the works on which fan fiction is based serve for fan communities the same purpose as myths and folklore served in earlier times, as a source of shared references having instant recognition in that community and a source of raw material for fans’ own creative works. Contemporary web culture is, he says, the traditional folk process working at lightning speed on a global scale.
On this reasoning, Mr. Spock has every bit as much validity as a cultural reference within the fan context as has Ulysses, or King Arthur, within the context of the poetry of Tennyson: whether you are reworking stories of Homer or of Homer Simpson, you are doing much the same thing. This rather elevated argument is asking fan fiction to carry a lot of freight. I suspect most fan writers are having more fun than this. But advocates for fan fiction are trying to counter a perception that fan fiction is a marginal endeavour, a bizarre pastime for emotionally immature people obsessed with reworking ephemeral works of popular entertainment to produce amateurish, second-rate writing. With even fan-generated websites acknowledging this kind of thing — see www.godawful.net — such advocates do have a challenge.
They also have a point. The idea that cultural works build upon their predecessors is incontrovertible. We do want a flourishing public domain to allow creators to build on the ideas contained in the works of others. But in obvious contrast with mythology and folklore is the commercial nature of the works on which fan fiction is based: the fact that identifiable authors or creative teams within media companies created them and are presumably trying to earn a living from them for the limited (although, many believe, not limited enough) time the copyright allows. Many iconic works in our culture are still under copyright, which complicates the process of retelling identified by Jenkins. Fan fiction, for its part, must negotiate this conflict of creative interests in the midst of the rapidly evolving cultural norms and expectations of the Net.
To start with: is fan fiction legal? Fans are understandably nervous. To date there have been no court decisions on the point in either Canada or the United States, so the legal status of fan fiction is uncertain. Fan fiction typically appropriates fictional characters and settings from popular copyrighted media works. Copyright law in the United States, where most of this discussion takes place, offers significant copyright protection to distinctive fictional characters as such. And a copyright owner’s exclusive rights in a work extend explicitly to derivative works based on the original work. Derivative works are fairly broadly conceived in US law:
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation or any other form in which a work may be recast, transformed or adapted.
Most fan fiction would fall within this definition. And unless the unauthorized writing of fan fiction can be characterized as a fair use under U.S. law, that means it is infringing. As a result, many commentators, and indeed many fans themselves, operate on the rueful assumption that fan fiction does in fact infringe copyright.
Undaunted by this, Rebecca Tushnet, a professor of law at Georgetown University, and a keen fan fiction writer herself, wants to take fan fiction out of the legal shadows where it has operated, more or less at sufferance, for decades and carve out a legal place for it within the U.S. doctrine of fair use. She has recently helped found the Organization for Transformative Works, with the mandate to establish fan fiction within the parameters of legal, non-infringing use.
Tushnet argues that the writing of non-commercial fan fiction is fair use. Fair, because it takes the source material as raw material and creatively transforms it in ways that copyright law is meant to encourage — for example, by expanding covert meanings perceived to be present or implicit in the original text, presenting new interpretations and viewpoints or reflecting critically on the original content — and because it is extremely unlikely to substitute economically for, or damage the market of, the original work. “Like a book review that quotes a work in order to criticize it, a retelling of a story that offers the villain’s point of view or adds explicit sexual content can be a transformative fair use,” she maintains.
But there is an opposing view that considers fan fiction to be insufficiently transformative. Although the characters may be harnessed to a different story vision, or even set in an alternative universe, fan fiction is essentially a narrative reworking with key fictional elements of the original; a derivative work, not a critical work, unlike a book review. In this view, copyright owners are entitled to protect their characters against fans’ distortions.
Under Canadian law, as in the U.S., characters from fiction or television, such as Anne of Green Gables, can be protected by copyright, provided that the characters are sufficiently creative, distinctive, thorough and complete, or constitute a substantial part of the work itself. While the Canadian Copyright Act has no explicit concept of derivative works, it does confer on artists and authors the exclusive right to control the production of their works in other mediums and adaptations. The basic question is whether a substantial amount of the source has been produced or reproduced, in any material form whatever. This would likely capture most fan fiction.
Arguing that fan fiction is fair within the Canadian concept of fair dealing is tough. Unlike the open-ended American concept of fair use, fair dealing is defined by a specific list of purposes: criticism and review, research and private study, or news reporting. Of these, only criticism and private study are even conceivable fits for fan fiction.
So, is fan fiction criticism? Perhaps it is ironic that in the U.S. critical fan fiction written as a parody of a work has a much higher likelihood of being considered a fair use than does imitative fan fiction. In Canada, the law has not to date recognized parody as fair dealing, although a liberal interpretation of the concept could arguably include parody as a form of criticism. But while it may be possible to rationalize some fan fiction as parody, the fact is that most of it lacks that critical element. It is in the nature of a fan to be an enthusiast, after all, not a critic, so fan fiction tends to falls directly within the derivative work category.
Can fan fiction be characterized as private study? Not likely. If a fan wrote a sequel to a book she loved and put it in a drawer, or shared a copy with a few close friends, you could argue private study, but once posted to the internet and shared with the entire world, it is impossible to make the argument that it is private in the legal sense of the term.
So it is hard to see a case for fan fiction as fair dealing under Canadian law. Besides, there are the author’s moral rights to consider. The U.S. analysis of fan fiction makes barely a passing nod to moral rights. No wonder: in the U.S. the notion of moral rights is fairly slight. (And a media corporation cannot have moral rights; it is strictly a personal right.) But in Canada, and much of the rest of the world, an individual author has the moral right both to be credited as the author (or to remain anonymous, if he or she chooses) and to have the integrity of the work protected. That integrity is infringed if the work is, to the prejudice of the honour or reputation of the author, distorted, mutilated or otherwise modified, or associated with any product, service, cause or institution.
Obviously, a moral right that a work not be “distorted, mutilated or otherwise modified” poses a serious legal impediment to the fan fiction writer. It is a significant fetter on the fan’s freedom to rework the canon without this act being viewed as an attack on the artistic integrity of the source work and ultimately on its author’s reputation. After all, an author may well feel that something he or she has spent years researching and writing is a finished work, not a literary buffet or a cultural spare parts counter for others to rummage in. An author may object to distortions of his characters when they are appropriated to the divergent narrative sensibilities of fan imaginations.
That being said, fan fiction generally does not try to pass itself off as being the work of the original author. Most fan sites carry disclaimers acknowledging their borrowing, noting that the copyright in the characters belongs to the original author (and occasionally begging not to be sued). While this undoubtedly shows good intentions, it does not adequately address the problem.
Thus the legal position of fan fiction remains precarious. Knowing this, its writers from the beginning have tended to keep their heads down, hoping that any copyright owners who notice them will see how harmless, how flattering, how socially beneficial, and even how good for business, fan fiction is. To a large extent, this strategy has worked. Fan fiction has been largely tolerated or ignored by copyright owners. For example, Gene Roddenberry, creator of Star Trek, turned a blind eye to fan fiction, and Trekkers thrived. Lucas Films, owner of Star Wars, officially permitted fan fiction after an initial cease and desist skirmish, so long as it was not sexually explicit. Media companies recognize that fans are among the most devoted viewers of their television programs, and that permitting or even fostering fan sites helps keep such fans engaged.
Broader benefits may flow from fan fiction as well. Tushnet argues that fan fiction allows fan writers — and potentially children, too, in an educational setting — to develop their writing skills using their favourite characters and worlds as a starting point. The fan community provides an important social network for this. On occasion, fans go on to professional writing careers after starting out with fan fiction. Canadian science fiction author Cory Doctorow, for example, started out writing Star Wars stories at age 6, and Conan the Barbarian stories at age 12.
Media companies may judge that the promotional value of creatively engaged fans outweighs the risks of fan fiction. For individual book authors, however, the risk calculation is somewhat different. Many authors find it flattering to have readers identify so deeply with their work. Others flinch. All authors appreciate their fans. But they have a legitimate concern that fan fiction — operating in the medium of the written word, as the authors themselves do — may put their reputations more at risk. A fan, aware of the nature of the genre, might not consider a piece of fanwork to reflect one way or the other on the author of the source work. But a non-fan, innocently coming upon the same thing out of context, very well might. Now that fan fiction is readily searchable on the web, a young Harry Potter reader who stumbles inadvertently upon a fan depiction of a sado-masochistic Hagrid could have the image of him — and of J.K. Rowling — indelibly tarnished. Alternatively, a reader might assume that the source author was somehow associated with the fanwork, or approved of it. Fan fiction may potentially compromise the writer’s work in the non-fan world by connecting it with substandard writing, or with causes the author deplores. Genre fiction authors — even the big names upon whose works much fan fiction is based — are typically not well known outside their genre, and so their reputations may be more susceptible to being misjudged on the basis of fan fiction.
An author may also perceive his or her economic rights to be under threat. Fans sometimes approach authors to give permission to their fanworks. But authors have to safeguard rights in their work for business reasons. Authors earn money by licensing valuable subsidiary rights, such as film, television and merchandising rights to media companies that may lose interest if the rights are not free, clear and exclusive. For writers who write a series of novels — such as Edgar Rice Burroughs, who wrote 25 Tarzan novels — the risks are particularly acute. The existence of fan fiction on the internet, even though posted non-commercially, might erode their market for licensing subsequent books or other derivative works. The caution that authors have to exercise around managing their rights can be frustrating to fans and difficult for authors who do not want to discourage keen readers, but must.
There is nothing to say that fan fiction, after all, cannot be good. Or even become a phenomenon of sorts. This past December, for example, an unofficial fan prequel to the Harry Potter series was written and posted to the web. The author was George Norman Lippert, an American web designer by trade and a keen Potter fan. His novel-length fan fiction, entitled James Potter and the Hall of Elder’s Crossing, about the lives of Harry’s parents, was posted on his stunningly professional website, where it was noticed and commented on by the press in Australia, who speculated that it was a secret release by Rowling herself. The site got an avalanche of hits when that story broke. Rowling, who fortunately for Lippert has a liberal attitude to fan fiction, had to officially deny that she had anything to do with it.
Another concern is that an author working on a series might encounter in fan fiction an idea that is similar to or the same as the author’s own. An author who goes ahead and makes use of his or her own idea, having also seen the fan fiction in question, ironically, may risk a law suit for copyright infringement brought by the fan. Such a case may not be successful — a court in the U.S. has held that copyright could not be used to “arm an infringer” — but could nonetheless be costly to defend or settle. Again, the problem is particularly acute in series writing, where the author foreshadows in one book or episode a future plot development intended for a future book or episode. An attentive fan might spot the authors’ intention and pre-empt the story. Even without a lawsuit, if a fan writer speculates online that the series writer plagiarized his or her idea, it may be enough to seriously damage the author’s reputation.
Some authors use release forms to protect themselves against this, but this would avail only in cases where the fan writer has directly contacted the author. Many authors opt to shun contact with fan fiction to avoid this problem. Some would like to disallow it altogether. Others have opted to allow fans to create fan stories, subject to restrictions. J.K. Rowling, for instance, officially encourages fan writing, provided it remains online and not in print, is non-commercial, does not purport to be written by her and, if it contains graphically violent or sexually explicit material, is placed behind an age verification wall.
So where does all this leave fan fiction? It may be that its shadowy status — largely tolerated, but legally vulnerable — leaves it just where it ought to be, in a healthy state of tension between fans and authors. Because the fact is that fan fiction has so far been able to operate as a tolerated use, if not a fair use. Both parties have good reasons to accommodate the concerns of the other. No one wants to crush a fan, and fans do not want to damage their favourite author’s livelihood or reputation. Fan fiction, particularly under Canadian law, and in view of authors’ moral rights, requires the author’s forbearance, and probably deserves a degree of that.
There is a danger, in this balancing game, in taking a militant stance. What is needed is a kind of digital civility, an online code of respect in engaging with cultural works that recognizes and addresses authors’ rights and legitimate concerns. This, together with the recognition that fan fiction comes from basically “a good place,” should encourage authors, media owners and fans to develop a code of fair practices to define what is fair in fandom, to allow fans to engage creatively with the works they so sincerely admire.