lengthy thoughts on fanfic

[swan_tower]

If you aren't aware of the Great Cassandra Claire Fandom Implosion, I won't inflict my own summary on you. This post will be sufficiently prefaced by saying that the million and one analyses and responses to that situation have sparked me to lay out my own thoughts on fanfiction. This will take a while, so you might want to get a snack first.

Point #1: Fanfic is illegal. Got that? This is the opinion of several people whose legal knowledge I trust, though I'm interested in learning about it for myself, and hope to sit in on a class this semester that will cover those kinds of topics. But you're borrowing someone's intellectual property when you write fanfic, and even if you don't make money from doing so, it's still against the law. This point is often missed by people who can't be bothered to pay attention.

Point #2: Having said that, any number of writers (both in print and media) are okay with you writing fanfic. It may be illegal, but it isn't worth anybody's time and money to sue you; a cease & desist letter tends to suffice when someone gets upset. And frankly, fanfic is a way for readers/viewers to engage more deeply with a story, and can even serve as a kind of grass-roots publicity, so just because it's illegal doesn't mean it's a bad thing. This point is often missed by people who feel persecuted when you tell them how the law works.

Point #3: The only thing that differentiates what we call fanfic from works such as Tom Stoppard's Rosencrantz and Guildenstern Are Dead is intellectual property law. Stop and think about it for a moment: they are the same thing. They just fall on one side or the other of the legal divide. In both cases, one writer is taking someone else's story and doing something with it. Maybe the story's a fairy tale and doesn't have a specific author; maybe it was written four hundred years ago and the author's long dead. Doesn't matter. You're still engaging in the same activity. The difference is your legal right to do it. Nothing prevents a work of fanfic from being as clever and witty as R&GAD, but the world tends to pass moral judgment on the former, and not on the latter. This point is often missed by those who want to claim that all fanfic is trash, but Stoppard's okay.

Point #4: Moving into the realm of opinion, I feel that it's good manners to respect the creator's wishes with regards to their intellectual property. If they don't mind fanfic, go for it. If they do mind, then be polite and stay away. If they don't mind fanfic but they object to certain kinds (frex, their underage characters having sex), then write about other things. Is there any force that can stop you from writing whatever you want? The same forces that can stop you from writing fanfic at all, which is to say that it probably won't happen (see point #2). But just because the author is willing to let you climb the fence and swim in her backyard pool doesn't mean you should pee in it.

Point #5: There is also a difference between fanfiction and plagiarism. The categories are fuzzy ones, of course, existing on a continuum. The small amount of fanfiction I ever wrote was generally of the sort where it took place in a world created by someone else, but involved my own original characters, perhaps with cameos by canon characters. I tended to be more interested in the possibilities of the setting than anything else. Other people write mostly about canon characters, perhaps with a Mary Sue or less irritating original addition. Maybe they cross one fandom with another, producing a Buffy/Highlander crossfic about the two groups of Watchers being the same. Maybe they allude to other fics. Maybe they even quote things. You hit the "plagiarism" line when you're Cassandra Claire, lifting not just characters, not just quotes, but extensive lines and scenes from other sources and not attributing them (then basking in the praise of people who say your ideas are so original and you write so well). I haven't followed that whole debate in full (I'm not sure any human being can, and I've not really tried, though I'm anthropologically fascinated by it), but what I have read included enough side-by-side textual analysis to persuade me that she did indeed rip off Pamela Dean and other writers far above and beyond what gets winked at in the illegal activity called fanfiction.

Point #6: If you're writing fanfiction to improve your craft, it will help you -- up to a point. You can refine your prose, dialogue, pacing, etc. as much in a fanfic story as anywhere else (provided, of course, that your dialogue isn't stolen wholesale). But it won't do much to help you develop characters, settings, and other large-scale elements of the craft. Its inherent intertextuality may get in the way of you learning to write a story that stands on its own. If your eventual goal is a writing career, there's nothing wrong with fanfic in principle, but there will come a time when you'll be better served devoting that time and energy to original work. And fanfic publication probably won't help you sell your own work, with two exceptions: one being work-for-hire media properties (where it may indeed net you a contract, if that's what you really want to do), and the other being (again) Cassandra Claire, who has landed a novel deal, apparently at least in part on the strength of her fanfic writing. (This, as you might guess, is a source of much of the brouhaha, and I fully expect to see the blogosphere descend on her first book like a pack of rabid weasels, waiting to catch her if she's plagiarized again.)

Point #7: How do I feel about this relative to my own position? As I said, I used to write a little fanfic, but not much; mostly I wanted to chase my own ideas. I haven't written any in years, though my mind will occasionally play with it for amusement. If Doppelganger fanfic or something based on a later book of mine starts appearing on the web, I will be flattered by the attention, and I'll probably let it go unless somebody tries to make money off it. I will not, however, read it, partially because I could subsequently stir up trouble if I later wrote something that resembled said fic, and partially because it would weird me out, watching someone else write about my characters. (No offense to y'all, but you'd probably get them wrong, relative to what's in my head. It's the nature of the beast. We don't see them the same way.)

Point #8: Hmmmm . . . I think I've hit everything I wanted to say for the moment, though I may return to this at a later date. Fanfic is a huge and complicated subject, with many byways I don't find particularly intelligent or attractive, but I issue no blanket condemnations against it. Just the occasional specific one, against specific acts of idiocy.

Comments

[kurayami-hime.livejournal.com]

Disclaimer: The following is not legal advice.

I should reply directly to many of these comments, but I'm not. I'll try to hit all the points here and not be too redundant.

Points One and Three: You are correct. Fanfic, or rather, derivative works, are not legal unless you own the copyright in the underlying work or have permission from the owner of the work. R&GAD is a derivative work. The important difference here is that Hamlet is in the public domain. THAT IS IT. Have whatever arguments you like about why R&GAD isn't "fanfic" like the Harry Potter/Inuyasha/Star Trek slash fest you read because it has some underlying literary, social, or cultural value or one is a retelling and the other is a new story. They are both still derivative works; only one is OK under the law and the other one is not (unless you somehow actually managed to get all the appropriate permissions for the HP/I/ST fic).

Point Seven: Derivative works of the fanfic variety are not copyrightable (with some exceptions). Therefore, if you, swan_tower, did write something resembling a Doppelganger fanfic, the author of the fanfic would not be able to sue you for infringement. My case in point was going to be that one of the Rocky or Rambo movies was lifted wholesale from a fan script, but I can't find anything to back that up at the moment. I'm still pretty sure it was though.

Fair Use: No one brought up this term that I noticed, but it is crucial to most all copyright discussions. What is fair use depends on a 4-part balancing test (and potentially what jurisdiction you happen to be in, but that may be just for cases involving music sampling). It's not only commercial use vs. non-commercial use; the 4th prong: "the effect of the use upon the potential market for or value of the copyrighted work" would probably be very important in an argument against fanfic fair use. Parody is generally fair use; satire and fanfic are not.

Other general copyright stuff, not necessarily relevant: Publication isn't necessary for protection. You just have to fix it in a tangible medium. Except in the case of most fanfics (i.e. derivative works), fixation in a tangible medium does not provide protection because you have no right to create the derivative work in the first place. Also, for copyright purposes, publication means "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication." Just so everyone's clear on the terminology.

[swan-tower.livejournal.com]

Thanks. If and when I put an extended version of this up on my webpage, it will include all the relevant crunchy bits of the IP angle. I don't actually think the copyright status of the original work is inherently relevant to the discussion of the derivative works as texts -- there's plenty of variety in how they approach their source, what audience they speak to, authorial attitude toward the original, etc. But it's important to put it up there, because I think a lot of ficcers don't understand the actual legal framework.

Now that I think of it, you can answer one of my questions for me: since I'm under the impression that copyright governs the right to make copies of the words I wrote, how exactly does that apply to fuzzier things like characters and settings? Copyright obviously doesn't protect ideas broadly, or fiction as we know it would be dead, but at what level does it mean my concepts belong to me?

[kurayami-hime.livejournal.com]

You're right. IP law has nothing to do with discussions of the works themselves. I (perhaps somewhat biasedly) just think it's important to keep in mind the larger universe the texts exist in. And people in general, not just ficcers, don't understand copyright law. Just read the Copyright Office FAQ to get a feel for the rampant ignorance/misinformation out there.

Copyright does not protect ideas. Patents protect ideas. Instead, copyright protects "original works of authorship" (read: expression of ideas). The problem with giving you an actual answer is that there really isn't one. It's much easier to point to other things and call them infringement than to clearly delineate what expression cannot be copied. You're really asking about derivative works, and what is yours and yours alone in this case will be decided during a lawsuit. Outside of actual "black and white" copying, much of copyright law is very, very grey.

I do have one definitive answer! Characters are copyrightable in and of themselves (as decided by case law, in the 40s or 50s I believe).

[swan-tower.livejournal.com]

Do you have to take specific steps to copyright characters separately, or are they covered by the copyright for the work in which they appear?

[novalis.livejournal.com]

You don't have to take any steps. Copyright acts on "works" (that is, specific expressions); characters are only protected insofar as new works which include them are derived from the original work that they appeared in.

[novalis.livejournal.com]

Rocky. The case is Anderson v. Stallone.

[kurayami-hime.livejournal.com]

Thank you! I should have realized it was Rocky when the number "4" kept tickling the back of my mind.

Of course, now remembering "Stallone", the letter "R", and the number "4" won't be enough . . .