Lets Talk About Fanfiction

Where does fanfiction fit in with the copyright laws on remixing, parody and transformative works?

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I've a confession to make. Every once in a while, I write fanfiction. No, I'm not going to link to it.

For the uninitiated, fanfiction is basically taking an existing universe (a book or TV show, say) and using the setting and characters to write new stories. It's a great way of engaging with a work you love. It's a great way of learning to write fiction as it eliminates some of the variables: if you don't have to worry about world building and (to an extent) characterisation, you can focus, for instance, on plot and pacing. There are many different types of fanfiction. You didn't like the ending of that book? Write a different one. Really liked that minor character and want to know what happened to them? Make it up! In the interests of full disclosure, I should also admit that a substantial proportion of fanfiction is of an erotic nature, often involving same-sex couples. Generally male same-sex couples. And it's predominantly written by women. Go figure. (Yes, this is the type I write.)

Anyway, fanfiction is one of the dark secrets of the internet. Fans write it and read it and lovingly curate archives of the stuff. Yet no one talks about it. Each piece is tagged with a huge disclaimer about not owning the universe, or the characters, or making any money from them.

Creators and rights-holders - it is worth remembering that those are different groups - have an ambiguous relationship with the concept. The studio behind the Twilight films clearly doesn't want anyone engaging with their work ever. Computer game makers Bioware actually run fanfiction competitions. Some writers quietly tolerate what the fans do to their creations, others threaten to sue. If you hang around fandom long enough, you learn who's who. George R. R. Martin apparently really loathes fanfiction which is why all the places to find stuff based on his works are locked. Marion Zimmer Bradley used to actively encourage it and publish anthologies of fans' works set in her Darkover universe - until she decided to lock it down completely as a result of a disagreement with a fan over a story idea. Babylon 5 creator J. Michael Straczynski, a pioneer of online fan engagement, tolerated fanfiction but steered well clear of it after he had to shelve an episode idea for several years because a fan had had a similar idea. Estates like the Tolkien Estate tend to be particularly precious about their property.

I don't have the data, but I would be willing to bet good money that fandom is themajor source of derivative and remixed creative works. Yet digital rights campaigners tend to steer well clear of the subject - even those of us who have a foot in each camp. We will happily wax lyrical over the right to parody or a general framework for remixing stuff, but we don't touch fanfiction with a barge pole. This leaves fans in a perpetual state of uncertainty and dread that a creator or rights-holder will come after them one of these days.

Now, I must admit my knowledge of the legal framework that limits fanfiction is shaky. I had always assumed it was copyright - largely because of aforementioned disclaimers - but a discussion at ORGcon quickly clarified that in the vast majority of cases it probably isn't. Copyright protects "expression", not ideas, settings or characters. US law has a concept of derivative works which covers things like film adaptations and translations but is at best murky on transformative works. I don't know if UK law has an equivalent. In most cases it is more likely to be infringement of trademarks rather than copyright that is the sticking point. An informed legal opinion on the matter would be appreciated.

I suspect until digital rights campaigners - or a brave fan - take on the case, we will remain in a legal grey area. This will not stop fanfiction - nothing stops fanfiction. But I suspect it would be nice for fans to know that their labour of love isn't going to land them in huge trouble one day. Anyone fancy a test case?

 

[A huge thank-you to @drcabl3 for organising the Unconference session at ORGcon which prompted this post.]