Wayward Writer

I wrote this paper for my Advanced Expository Prose class and figured I’d share it here. It was a fascinating thing to research and I’ll possibly go further with looking into this matter…it does sort of touch on some very key matters that I have an interest.

One thing I will note though, I will truly consider myself an author once fanfiction in one of my ‘verses pops up.  That is how I will truly know that I have made it.

Fanfiction and Fair Use

Fanfiction is commonly known to the online world as being “fiction written by fans as an extension of an admired work or series of works, especially a television show, often posted on the Internet or published in fanzines.” (Free Dictionary).
Fanfiction has been with us since the dawn of time, first taking shape as folklore and fables. It was one common story told differently by various storytellers over time and across several different tribes and peoples. There was no need for copyright law then, so storytellers were free to add or take away from the story as suited their needs, audiences, and personal preferences. There’s evidence that Charlotte Bronte and her sisters wrote fantasy-adventure stories and poems about the Duke of Wellington long before Jane Eyre and Wuthering Heights were published. Also fans of Sherlock Holmes in the early 20’th century wrote essays and articles examining Holmes’ life and work as if he was an actual person. These fans organized themselves into a group, calling themselves the Baker Street Irregulars. After Arthur Conan Doyle’s death, his son collaborated with another fan to write other Holmes’ adventures. At this point in time, this genre was referred to as pastiche. (TVwiki)

Modern fanfiction, while it had its roots in the science fiction realm really got its start with the popular television show, Star Trek.  Fans of the show started writing their own episodes, drawing from the already established characters and settings (referred to as the “canon”) and placing them in various situations that the show’s writers had not already conceptualized. Some of them were published in hand stapled booklets called fanzines; these were surreptitiously handed out during fan conventions or mailed in nondescript envelopes from the basements of volunteer compilers and editors.  Spockanalia was the first “published” Star Trek fanzine. It came out in 1967 and contained a few pieces of fanfiction inside of it (LRC).

Often times these pieces of fanfiction had a hidden, or not-so-hidden, agenda. The best example of this was the idea there was repressed sexual tension between Captain Kirk and Mr. Spock. The popularization of this romantic pairing led to the creation of several sub-cultures inside the fanfiction world. As well as a good deal of terminology specific to the fanfiction realm that is still in use today. It popularized concepts like crossover fiction (where two different universes merge together, for example Star Wars and Harry Potter), alternate universes, fiction dealing entirely with homosexual pairings (called slash fiction because of the “/” used to indicate the pairing; i.e. Captain Kirk/Mr. Spock), public feedback, and a special type of character called a “Mary Sue.” Mary Sues are generally very annoying, totally perfect wish-fantasy characters. Often they are also self-inserts, where the author writes herself in as a character (LRC). The various fanfictions also vary in length, from “One-shots” which are small scenes or often a snapshot of two characters in one particular scenario through novel-length works.

There were other fandoms active at the same time as Star Trek. Lord of the Rings, Doctor Who, Mission: Impossible, and The Man from U.N.C.L.E. to name a few. These fandoms slowly started to take notice of each other and a wider distribution of fanfiction started to develop. Much of the fanfiction was written for family and friends and was initially distributed as such. Fanfiction truly started to explode however, in the 80’s and 90’s with the creation of Usenet and the World Wide Web.

Today, there are thousands of blogs and individual fan websites dedicated to fanfiction, as well as huge ad-supported fan archives. JK Rowling’s series, Harry Potter, has generated hundreds upon thousands of fanfiction written in and around the characters and settings of the seven books. Type “Harry Potter fanfiction” into Google and discover about 522,000 hits. Typing in “fanfiction” by itself returns somewhere around 22.5 million hits.

But is it legal? More importantly does it actually violate the copyright laws? Does it fall under the fair use defense that many fanfiction authors claim it does? First, what is fair use? The concept of “Fair Use” has been around for a while, but it was not until the late seventies that it became actual law under the Copyright Act of 1976 (17 U.S.C. § 107). The actual text of the law is stated here.

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (USCode)”

In layman’s terms, the fair use addition is there to help redefine parts of the copyright law. They are codified as guidelines, but not exclusive guidelines. Courts are still entitled to consider other factors along with these guidelines. The fair use law exists to temper the exclusivity of copyright law in so that the purpose of the law might be better met. The U.S. Constitution defines the purpose of copyright law to be “the promotion of “the Progress of Science and useful Arts” (Art. I, § 8, cl. 8).” (USCode). For something to truly fall under the fair use umbrella, it would have to be something transformative rather that just merely derivative. It also depends on the nature of the copied work. In fair use analysis, certain aspects of the work are considered to be relevant, such as whether or not the work is fiction or non-fictional. Facts and ideas are not considered to be copyrightable material, only their particular expression or fixation can be copyrighted. For example you cannot copyright the fact that President Kennedy was assassinated, but you can copyright a published theory on why he was assassinated.

Fair use also depends on the amount of the original material being used in the new work. In a broad sense, the less you use of the original material, the more likely it is that it will fall under fair use. However, there are some exceptions to the rule. If the sample taken is small but considered to be very substantial to the original work itself, it may not fall under fair use. There is also the effect upon the original work’s market value to consider. It takes into account not only whether the work in question will harm the copyright holder’s market significantly and whether or not such uses in a more widespread sense will harm the potential market value for the original. The burden of proof for this particular factor differs whether or not the work is slated for commercial use (in which it rests on the defendant) or noncommercial use (in which it rests on the copyright owner). There are two types of potential harm that a court considers. First is the use in question is a direct market substitute for the original work and second, if market value harm might exist beyond the direct distribution. Parodies and negative reviews do not count under this. Copyright law is not designed to protect works from negative criticism.

Does fanfiction fall under the fair use umbrella or not? It’s not as cut and dry as some people believe. Fanfiction primarily falls under derivative works, being a work that uses previously published material in an original work. The definition of derivative works, according to the US Copyright Law, 17 U.S.C. § 101 is as follows:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”

Given this definition of derivative works and taking into account the definition of fanfiction at the beginning of this paper, it is safe to assume that the vast majority of fanfiction falls under this category. Being that the majority of fanfiction is also unauthorized, it therefore becomes copyright infringement. The only way for it to not be held as copyright infringement is if a judge ruled it to fall under the fair use clause. Fair use cases are decided case by case, there’s been no blanket ruling considering what fanfiction does and does not count underneath fair use. Because of this, the prevailing mindset by both fans and authors is that fanfiction is indeed infringement.

John Scalzi, a popular author and blogger, researched this in one of his blog posts. He states clearly that in his opinion, fanfiction is both a copyright violation and illegal. After asking an intellectual property lawyer (Kevin A. Thompson with Davis McGrath LLC) and then the Chilling Effects Clearinghouse (a known repository of legal information), Scalzi’s viewpoint seems to be confirmed (Scalzi).

One of the first tests of these laws happened in 1992 when a fan of Marion Zimmer Bradley’s sued the author because she claimed that Zimmer Bradley had stolen her ideas for Bradley’s next Darkover novel, ideas that she, the fan had written up and submitted to a fanzine that Zimmer Bradley ran. The nameless fan then hired a lawyer and an agent, demanding to be named as a co-author and to be given half the royalties. Zimmer Bradley’s publisher, DAW, put the book on hold to avoid the ramifications of a court case (Ecks).

After this happened many authors out of fear for potential lawsuits, adopted a “zero tolerance” policy with regards to fanfiction and have expressly asked that no fan archive accept work based on their books under threat of prosecution. Andre Norton, David Weber, and Anne Rice are among the authors who have this policy. Anne McCaffrey and Mercedes Lackey have gone so far as to discourage unofficial role playing games.

One of the defenses that fanfiction authors use to justify themselves under fair use is that they are making no money writing this fiction. This was not the case with Lori Jareo, author of the Star Wars fanfiction novel, Another Hope. Normally this wouldn’t have been a problem, Lucasfilm (historically known to be hostile toward fanfiction) has changed their policy slightly in order to be more fan friendly. This policy shift included not only encouraging fan works but also their integration onto official sites. Ms. Jareo initially made the novel available as a PDF file downloadable on her personal website. In July 2005, it was published through WordTech Communications (a company that Ms. Jareo helped found) and could be found for sale on Amazon.com, Barnesandnobles.com, and Powells.com. An interview with Ms. Jareo herself reveals her thoughts on the copyright violation issue.

Q: Having set Another Hope in an already existing universe, I find myself wondering if there was any concern on your part regarding copyrights?

No, because I wrote this book for myself. This is a self-published story and is not a commercial book. Yes, it is for sale on Amazon, but only my family, friends and acquaintances know it’s there.

Q: I also wonder how far a writer is allowed to write in a world and to use characters introduced by another author?

If it’s not a commercial project, I don’t see any problem. (Goldburg)

As of April 26, 2006, the novel had been removed from Amazon.com and the other websites and Ms. Jareo’s website disappeared. Lynne Hale, a spokesperson for Lucasfilm reported that Ms. Jareo had been asked to remove her novel from the internet.

The outcry from the fandom was universally against Ms. Jareo, fearing that her action might prompt Lucasfilm to revert back to some of their stricter policies and possibly to take action against several of the more well-known and visible fan fiction communities. The communities pride themselves on having a fairly low profile, regarding themselves as only pushing at the borders of legality, not blatantly crossing them. This fosters the preconception since they are making no money off of fanfiction, the amount of harm that fanfiction does is minimal. In fact, most fanfiction authors believe that fanfiction is a form of free publicity.

The most recent case involving fandom and fair use was the case, Warner Bros. and JK Rowling vs. RDR Books. The creator of the popular website, the Harry Potter Lexicon, Steve Vander Ark, had a contract with RDR Books to publish a hardcopy of his website, which is the largest Harry Potter fan encyclopedia in existence. J.K. Rowling and Warner Bros filed an injunction against RDR Books on October 31, 2007. The book’s purpose was to serve as a counterpart to the popular bestselling series and it was scheduled for a November 2007 release. The lawsuit specifically states that “The infringing book is particularly troubling as it is in direct contravention to Ms. Rowling’s repeatedly stated intention to publish her own companion books to the series” (Reuters).

The case went to trial in New York where it was heard by District Court Judge Robert Patterson. Stanford Law’s Fair Use Project joined with RDR Books’ defense team replied to the suit, stating this:

In support of her position Ms Rowling appears to claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction. This is a right no court has ever recognized. It has little to recommend it. If accepted, it would dramatically extend the reach of copyright protection, and eliminate an entire genre of literary supplements: third party reference guides to fiction, which for centuries have helped readers better access, understand and enjoy literary works (Falzone)

One of the defense team’s arguments was that the Lexicon as a reference book fell under the fair use clause. Rowling disputed this, claiming that it took too much of her material and infringed on her rights (Publishers Weekly). In the end, Judge Patterson decided in Rowling’s favor, “because the Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same and thus deplete the incentive for original authors to create new works” (Reuters).

However he also made a distinct point of separating the Lexicon from other potential guidebooks. “While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled” (WNBC). He also made the remark that the Lexicon’s use of the original books was indeed transformative, but that its use of the two companion books (Quidditch Through The Ages and Fantastic Beasts and Where To Find Them) was transformative to a much lesser extent. (Out-law) He also rejected Rowling’s argument that the book interfered with her plans to write a Harry Potter encyclopedia of her own, stating that “the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works.” (Out-law)

Overall, fanfiction while it is technically illegal, in my opinion there’s nothing inherently immoral about it. Aside from the few people who try and make money on it, the majority falls somewhere between harmless to helpful. I personally believe that no matter what steps authors and courts may take, it is impossible to police the entire internet. Fanfiction will slip through the cracks no matter what laws are passed and what ramifications are instituted.

There is no right or easy answer to this matter, there may never be.

Bibliography:

“fanfic.” The American Heritage® Dictionary of the English Language, Fourth Edition. 2003. Houghton Mifflin Company 17 Sep. 2008 http://www.thefreedictionary.com/fanfic

“fan fiction.” TvWiki, the free encyclopedia, 2005, 17 Sep. 2008

http://www.tvwiki.tv/wiki/Fan_fiction

“Friction over Fan Fiction” Grace Westcott, an essay, LRC July/August 2008

http://lrc.reviewcanada.ca/index.php?page=Friction-over-Fan-Fiction

US CODE: Title 17,107. Limitations on exclusive rights: Fair use

http://www4.law.cornell.edu/uscode/17/107.html

“Follow-up on Crimes of Fanfic” John Scalzi, 2006, Blog: Whatever, 17 Sep. 2008

http://www.scalzi.com/whatever/004396.html

“Fan Fiction, Novels, Copyright, And Ethics” Michela Ecks, 2001, WHOOSH!

17 Sep. 2008

http://www.whoosh.org/issue62/ecks2.html#backnote08

“No HOPE for this Fanficcer” Lee Goldburg, 2006, Blog: A Writer’s Life, 17 Sep. 2008

http://leegoldberg.typepad.com/a_writers_life/2006/04/no_hope_for_thi.html

“Rowling, Warner Bros. sue over Potter book” Christine Kearney, 2007, Reuters,

17 Sep. 2008

http://www.reuters.com/article/peopleNews/idUSN3133972420071031?pageNumber=1&virtualBrandChannel=0&sp=true

“RDR Files Opposition To Rowling’s Preliminary Injunction Motion” Anthony Falzone, 2008, Stanford Center for Internet and Society, 17 Sep. 2008

http://cyberlaw.stanford.edu/node/5679

“Rowling Takes the Stand in RDR Suit” John A. Sellers, 2008, Publishers Weekly, 17 Sep. 2008

http://www.publishersweekly.com/article/CA6551438.html

“U.S. judge halts unofficial Harry Potter lexicon” Grant McCool, 2008, Reuters,

17 Sep. 2008

http://ca.reuters.com/article/entertainmentNews/idCAN0845394920080908?sp=true

“News Story” WNBC, 2008, 17 Sep. 2008

http://www.wnbc.com/entertainment/17421143/detail.html

“Why JK Rowling won the Harry Potter lexicon lawsuit” Out-law.com, 2008, 17 Sep. 2008

http://www.out-law.com/page-9413