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 the major 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.]
Copyright law in the UK (CPDA 1988 applies to Scotland and Northern Ireland as well as England and Wales) does not, as I understand it, give much recognition to the concept of a character as a distinct element of a work, and copyright owners have had little success over the years in trying to claim infringement in respect of individual characters. By and large trade mark infringement and passing off are more likely to apply, although it’s impractical to register a trade mark for every character and I would have thought that most fanfic would be classed as non-infringing personal use anyway. As for passing off, most fanfic is clearly identified as not being from or approved by the original creator, and in any case it would be hard to show the damage that passing off requires.
US law has been more receptive to the idea of allowing copyright in a character, although even there the character has to be original and ‘clearly delineated’. I’d take this to mean that if you give your starship a Scottish chief engineer that is too generic and abstract an idea to attract or infringe copyright.
I’m not aware of any court cases involving fanfic per se. There have been cases about unauthorised sequels (e.g. The Wind Done Gone) but such cases have involved commercial exploitation, which is absent from fanfic as a whole. I can also see that moral rights, especially the author’s right against derogatory treatment of his or her work, might form the basis of a legal claim; for example, open publication of slashfic involving young characters created by a well-known children’s author could well attract a claim for infringement of moral rights.
To be honest, speaking as a lawyer, I suspect the main reason that fanfic writers don’t get sued is that to do so would violate the First Rule of Litigation: don’t sue poor people. There’s little in it for the copyright owner, unless there is actual commercial exploitation, or what is desired is not damages but rather (as in my moral rights scenario) an injunction against publication.
Nicely put, Simon.