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Legal issues with fan fiction

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Legal issues with fan fiction arise due to the modern definition of fan fiction as derivative works, most prominently (but not exclusively) under United States copyright law.

Because a great deal of[clarification needed] copyrighted creative work and fan fiction is produced in the United States, U.S. law is particularly relevant when determining the legality of writing or sharing fan fiction. According to current United States copyright, copyright owners have the right to control or restrict the publishing of "derivative works" based on their material, a category that includes fan fiction. Although the copyright owner does not receive ownership of derivative works, the owner of the original work therefore has some legal power over fan fiction and other derivative works because of the opportunity to sue the creator of the derivative work for copyright infringement. For example, in the famous case of Anderson v. Stallone, 11 USPQ2D 1161 (C.D. Cal. 1989), Sylvester Stallone successfully pursued an action for copyright infringement against an author who wrote a proposed script for Rocky IV.

However, U.S. copyright law does allow for fair use of a copyrighted work by non-copyright-holders according to four tests. These tests take explicitly into consideration the purpose of the new use, nature of the copyrighted work, amount used in new work, and the market value effect of the new work. Whether a particular instance of use counts as "fair use" is determined by courts on a case-by-case basis.

While parody and criticism are recognized as fair uses of a copyrighted work, fan fiction is generally not recognized by U.S. courts as falling in either category. For instance, in July 2009, United States District Court judge Deborah A. Batts permanently prohibited publication in the United States of a book by a Swedish writer whose protagonist is a 76-year-old version of Holden Caulfield of The Catcher in the Rye. Judge Batts explicitly rejected arguments of parody and criticism, stating, "To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody."[1]

Trademark law

It must also be noted that, separate from copyright issues, the names and likenesses of many characters in American television and film productions are also registered trademarks of the producing company. However, because a cause of action for trademark infringement requires the infringed party to show a likelihood of confusion, this typically is seen as only requiring that fan fiction writers make certain that their work cannot be confused with the trademark holder, and do not claim to be endorsed or produced by them; it does not ban the use of a character any more than the registered trademark status of Coca-Cola prohibits an author from describing a character as drinking Coca-Cola. Instead, such a use would constitute a fair use of the trademark. Most authors try to avoid legal trouble by including short disclaimers at the beginnings of stories or chapters regarding the copyright or trademark status of the original work or characters.

Fan fiction may also be considered to dilute a trademark.

Arguments for the legality of fan fiction

Since 2007, the Organization for Transformative Works (OTW), led by fanfic writers, fan vidders, and fan artists (including writer Naomi Novik), has advocated for the transformative nature of fan fiction and thus its legitimacy. OTW argues that fan fiction and other fan labor products constitute a comment upon and criticism of the underlying work and add "new meaning and messages to the original",[2] and thus falls under the exemption to U.S. copyright law re-affirmed in Suntrust v. Houghton Mifflin Co.[3] OTW seeks eventually for "all fannish works [to be] recognized as legal and transformative and ... accepted as a legitimate creative activity."[4]

In order to establish fair use, fan writers argue that their work does not cost the owner of the source material any income, and often acts as free promotion, while fan writers themselves usually earn no profit. The works do not copy the original nor substitute for the original work. The normally non-profit nature of fan fiction limits the damages that a court could find and also strengthens a possible defense of fair use of the copyright or trademark in question. (This argument ignores the role of publishers and dealers of fan fiction, a small but existent contingent.)

Generally, authors who do not want derivative works being written without their direct permission and/or the ability to control it, request that major fan fiction archives remove and ban such works. There has yet to be a case of a major archive failing to comply with such a request, and many of them feature a full list of authors whose work cannot be the source of a fan fiction on their site. Fanfiction.net, the largest fan archive, keeps a list of authors/publishers who have expressly asked that fanfic based on their work not be archived. The current list is[citation needed]:

Author Author's fictional scenarios
P.N. Elrod Vampire stories
Raymond Feist The Riftwar Cycle, and some others
Terry Goodkind The Sword of Truth
Laurell K. Hamilton Anita Blake: Vampire Hunter, Merry Gentry
Robin Hobb The Realm of the Elderlings, Soldier Son Trilogy
Dennis L. McKiernan Mithgar series, Faery series, various
Robin McKinley various
Anne Rice gothic and religious-themed books
Nora Roberts/J.D. Robb romance novels
Archie Comics the Archie gang scenario

Most major studios and production companies tolerate fan fiction, and some even encourage it to a certain extent. Paramount Pictures, for example, allowed the production of Star Trek: The New Voyages and Star Trek: The New Voyages 2 from Bantam Books, fan fiction anthologies which followed Bantam's Star Trek Lives! by reprinting stories from various fanzines; as well as Star Trek: Strange New Worlds, a series of ten anthologies from Pocket Books in which the short stories were selected through an open submissions process geared toward novice writers.

Due to the ongoing nature of television production, some television producers have implemented similar constraints, one example being Babylon 5 creator J. Michael Straczynski. His demand that Babylon 5 fan fiction be clearly labeled or kept off the Internet confined most of the Babylon 5 fan fiction community to mailing lists during the show's initial run. J. K. Rowling has also complained about sexually explicit Harry Potter fan fiction. [5]

Many writers and producers do not read fan fiction, allegedly for fear of being accused of stealing a fan's ideas, but some do encourage its creation. When Buffy the Vampire Slayer went off the air, for instance, creator Joss Whedon encouraged fans to read fan fiction during the show's timeslot.

Noteworthy in regard to the acceptance of fan fiction is Eric Flint, who has set up a formal site for the submission of fan fiction into his canon in the 1632 series at Baen's Bar and has to date published twenty four issues of The Grantville Gazette in electronic form and five book form. These feature fan fiction and fan non-fiction alongside his original work (paying first semi-pro, and now SFWA rates). Flint contends that this allows the expansion of his alternate history universe into something approaching the complexity of reality.

Also noteworthy is the series of Darkover anthologies published by Marion Zimmer Bradley, beginning in 1980, consisting largely of fan fiction extended into her canon. These books led to a much talked about (and exaggerated) controversy. MZB read something in a fan story that meshed well with a Darkover book she was currently writing, so she wrote the fan author, Jean Lamb, offering her "a sum and a dedication for all rights to the text." In a 1991 Usenet post, Jean continued, "I attempted at that point to _very politely_ negotiate a better deal. I was told that I had better take what I was offered, that much better authors than I had not been paid as much (we're talking a few hundred dollars here) and had gotten the same sort of 'credit' (this was in the summer of 1992)...a few months later I received a letter from Ms. Bradley's lawyer threatening me with a suit."[6] The rumor, however, was that MZB had a skirmish with a fan who claimed authorship of a book identical to one Bradley had published and accused Bradley of "stealing" the idea, and the resultant lawsuit cost Bradley a book. Either way, her attorney advised her against reading fan fiction of her work. Versions of this incident are credited by many to have led to a "zero tolerance" policy on the part of a number of other professional authors, including Andre Norton, and David Weber. Mercedes Lackey strictly disallows any posting of fanfiction in her universes on the Internet, though she does allow fanfic stories published in approved fanzines with signed releases for each story.

Anne Rice has consistently, and aggressively, prevented fan fiction based on any of her characters (mostly those from her famous Interview with the Vampire and its sequels in The Vampire Chronicles) or other elements in her books, and she formally requested that FanFiction.Net remove stories featuring her characters. [7] Similar efforts have also been taken by Annette Curtis Klause, Robin Hobb, George R.R. Martin, and Robin McKinley among others. Many authors do this, they state, in order to protect their copyright and especially to prevent any dilution, saturation, or distortion of the universes and people portrayed in their works. However, many[who?] readers claim to have been turned off of writers after hearing reports of these or similar anti-fanfiction stances, or after having allegedly borne part of the brunt of anti-fanfiction campaigns.[citation needed]

One curious case is that of Larry Niven's Known Space universe. In an author's note in The Ringworld Engineers, Niven stated that he was finished writing stories in this universe, and that "[i]f you want more Known Space stories, you'll have to write them yourself." Internet writer Elf Sternberg took him up on that offer, penning a parody[8] in which members of Niven's hyper-masculine Kzin species engage in gay sex and BDSM. Niven responded by denouncing Sternberg's story in the introduction to Man-Kzin Wars IV (Baen Books, 1991) and issuing a cease-and-desist for copyright violation. To date, Sternberg holds that the story is constitutionally protected parody [9], while Niven maintains that it is a copyright violation that lies outside of protected speech[10], though he has not legally pursued the matter further.

Copyright holders may have been changing their policies towards fan fiction.[11] Some companies like CBS [12] and LucasFilms Ltd. [13], which had been historically hostile to fan fiction, changed parts of their model in order to be more fan friendly. This included trying to encourage fan works and integrating them into official sites. When not hosting the fan fiction or being openly tolerant of existing fan sites, companies created partnerships with other companies like FanLib to aid them in the task. The reaction from fans to such alliances and interference in their activities has been mixed, with some people thinking that it violates the basic rules of fan fiction communities. [14] Those fans seem to be increasingly in the minority, as acceptance of such interference is tolerated because of the positives that can result. [15][16]

Many tie-in novels and novelizations have the ambiguous status of being officially sanctioned, for-profit fan fiction - though once again, this largely depends on one's definition of fan fiction. Series from Star Trek to Charmed have numerous books that exist outside the officially canonical world of the series, much like fan fiction, but which have the official sanction of the show's creators or owners. The refusal by Paramount Pictures (owners of the Trek franchise) to allow printed adventures to be considered part of the canon has led many fans to consider the books to be a form of fan fiction despite their legal and licensed status, and a similar attitude prevails amongst fans of Buffy, where the series' creator has explicitly declared that the novels and novelizations based on the series are not canon material. [citation needed]

The attitude of copyright holders toward incorporating fan fiction into the canon varies. It is generally the case that the writers hired for a television series or movie are under strict orders not to read fan fiction out of fear that doing so will cause the copyright holder to be sued later for infringement. [citation needed] However, some copyright holders, such as the BBC in the case of Doctor Who, have mechanisms to allow for unsolicited submissions of stories into the official canon, and it is also the case that the writers of canon stories have sometimes been recruited from the ranks of fan fiction writers. In the case of the Doctor Who novels published by Virgin Books, once the BBC reclaimed the license to publish novels regarding the Doctor, many readers immediately categorized all the Virgin New Adventures as non-canonical fan fiction[citation needed].

There definitely are science fiction authors who have admitted to writing fanfiction before they became published, or in other ways have outed themselves as pro-fanfiction. A small sample includes: Naomi Novik has mentioned writing fanfic for television series and movies [17], and says she'd be thrilled to know that fans were writing fanfic for her series (though she also said she'd be careful not to read any of it); Anne McCaffrey allows fanfic, but has a page of rules [18] she expects her fans to follow; Anne Harris has said, "I live for the day my characters get slashed"[19]; J. K. Rowling has mentioned fanfiction approvingly, and her lawyers have confirmed she's okay with fanfic [20]. In 2008, Steven Brust published a Firefly novel with a CC copyright notice [21].

Fan fiction outside the United States

In Great Britain, Discworld author Terry Pratchett, while emphasising that he is careful not to read fanfic, has voiced the opinion that "everything works if people are sensible" and doesn't mind "so long as people don't put it where I can trip over it". However, Pratchett emphasises that the Discworld and all its characters are ultimately his intellectual property, and stresses that "it is not a franchise". [22]

In countries such as Russia, where copyright laws are more lenient or less well enforced, it is not uncommon to see fan fiction based on the work of popular authors published in book form. Sergey Lukyanenko, a popular science fiction author, went as far as to incorporate some fan fiction based on his stories into official canon (with permission of the writers of the said fan fiction). Perhaps the most famous case, however, is Dmitri Yemets' Tanya Grotter book series, a "cultural response" to Harry Potter, which provoked a lawsuit from J. K. Rowling's estate.

In Japan, the dōjinshi subculture is similar to a combination of the United States subcultures surrounding underground comics, science fiction fanzines, and fan fiction. Many dōjinshi works are manga-format fan fiction, which in Japan is, while not strictly legal, generally tolerated and usually encouraged, being looked upon as a form of free advertising or a breeding ground for new talent, most famously the group CLAMP and Love Hina author Ken Akamatsu.

References

  1. ^ Chan, Sewell. "Ruling for Salinger, Judge Bans 'Rye' Sequel" New York Times, July 1, 2009
  2. ^ Hilden, Julie. "The Organization for Transformative Works and Its Bid to Protect Fan Fiction: Are Its Proposed Changes to Copyright Law, Creating Immunity for Suits Against FanFic, a Good Idea?", Findlaw's Writ, Jan. 21, 2008 [1]
  3. ^ "What We Believe". Organization for Transformative Works. Retrieved 5 September 2009.
  4. ^ "Works in progress, an article from The Guardian". October 27, 2004.
  5. ^ Jean Lamb (2001-03-19). "Re: The infamous Marion Zimmer Bradley case". Newsgroup: rec.arts.sf.written. 20010319093259.04213.00001682@ng-me1.news.cs.com. Retrieved 2009-02-08.
  6. ^ "Fan fiction, an article from The Guardian". December 5, 2002.
  7. ^ Sternberg, Elf. "The Only Fair Game". Retrieved 2009-02-08.
  8. ^ Elf Sternberg (1995-12-14). "What ever happened to Niven's Known Space?". Newsgroup: rec.arts.sf.written. 4apqu4$igv@news1.halcyon.com. Retrieved 2009-02-08.
  9. ^ "Ladies and Gentlemen, Dr. Larry Niven". Slashdot. March 10, 2003. Retrieved 2007-09-22. I probably issued a cease-and-desist when the story was described to me as violating my copyright. It does that, of course.... "If you want more Known Space stories" was intended as an invitation to daydream, not to violate my copyrights and steal my ideas.
  10. ^ "Fan Fiction". Fan Fiction. Chilling Effects Clearinghouse. Retrieved 2009-02-08.
  11. ^ "Caroline in the City Fan Fiction". Chilling Effects Clearinghouse. Retrieved 2009-02-08.
  12. ^ "Star Wars". Fan History. Retrieved 2009-02-08.
  13. ^ "Life Without FanLib". LiveJournal. Retrieved 2009-02-08.
  14. ^ "TUESDAY September 18 & a WRITING CONTEST OPPORTUNITY". Mrs. Ehle's G Period. 2007-09-18. Retrieved 2009-02-08.
  15. ^ "After-Game Analysis: The Fanfic Thread". TWoP Forums. Television Without Pity. Retrieved 2009-02-08.
  16. ^ Aranaga, Carlos (2006). "Interview: Naomi Novik". SciFiDimensions. Retrieved 2009-02-08.
  17. ^ McCaffrey, Anne. "Fan Fiction Rules". The Worlds of Anne McCaffrey. Retrieved 2009-02-08.
  18. ^ Harris, Anne (2008-01-24). "Thoughts on FanFiction (comment)". Science Fiction and Fantasy Novelists. Retrieved 2009-02-08. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  19. ^ "Rowling gives OK for online Potter sequels". Bang! Showbiz. Stuff.co.nz. 2007-11-27. Retrieved 2009-02-08.
  20. ^ Brust, Steven (2007). My Own Kind of Freedom. Retrieved 2009-02-08.
  21. ^ Interviews with Pratchett quoted on the L-Space Web [2]

See also

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