Wednesday, July 28, 2010

Question: Should Fan Fiction Be Illegal?

One of the big topics in the intellectual property world right now is fan fiction. Fan fiction is fiction written by fans, and it’s got the publishing world and Hollywood in a tizzy.

Fan fiction presents many problems. On the one hand, it’s unclear if creators really have the power to stop fan fiction so long as the fan is not trying to make money on the work. The publishing world and Hollywood claim they have this power, but legally speaking, the issue isn't settled and I would bet they actually don’t.

Yet, even assuming they have the power to stop fan fiction, it’s not clear what the remedy would be. There is no fine. And I don’t see how they could get monetary damages because the fan made no money, thus there are no profits to disgorge, and there’s no way to prove this fan fiction hurt the sales of the real product. Plus the fan probably has no money anyway. Thus, the only thing left would be an injunction, but getting those is expensive.

And even if it was worthwhile to stop fan fiction, the next question arises: when does fiction cross that line and become fan fiction? If I rewrote Star Wars as the story of a boy with power over dragons rather than the force. . . well, that would be Eragon, and apparently that didn't infringe on Star Wars. So what if my characters were “Duke Skyrunner” and “Hans Olo” is that enough? Does it need to be the same genre? How close does it really need to be before it infringes? The usual standard is that it only infringes if it creates a danger of confusion, but there's no chance of that here.

Moreover, the real question is: should creators worry about fan fiction at all? If someone has fallen so in love with your work that they went to the trouble of creating their own mini version of it, wouldn’t it be better to let these people have their fun? After all, it’s not like there’s any danger people will confuse that with the actual work.

The big deal, I guess, is that once you start to allow this, you lose control over what people write, and that often leads to things you probably don’t want happening with your characters. For example, one of the most common forms of fan fiction is called “slash fiction,” where someone takes the characters from a story, like Harry Potter and his friends, and uses them in homosexual pornography. This is extremely common. And even if you don't have a problem with slash fiction, remember that anything is possible: racist fan fiction, child pornography, and even pro-Obama fan fiction. . . yuck.

In my personal opinion, unless the fan is trying to make money, then it’s probably best to let them have their fun. No one believes for a minute that the creator is endorsing what these fans write (unless you start picking and choosing what you will allow), and it’s probably better to have a thousand zealous fans out there writing their own stories than it is to have a thousand disappointed ex-fans holding angry letters from your lawyer.

What do you think?


**** By the way, Spockanalia is the first Star Trek "fanzine." Published in 1967, it contained the first Star Trek fan fiction and was usually sold at science fiction conventions for a small price to cover the cost of mimeographing it. What do you think would have happened to Star Trek's future if they had sent in the lawyers in 1967 to shut these infringing fans up? Just a thought.

25 comments:

Jocelyn said...

I read the headline and my answer is "No". Not that I have any legal background but I was into Japanese Anime when I was in High School and College. Though I did not personally write any, I read some and honestly, all I ever thought was it was paying homage, even as a "slash fiction". Though I'm sure Hollywood is just made because they didn't think of the storyline first and want their fair share of someone elses idea.

Jocelyn said...

I should clarify, I read the headline, said "No" to myself, then read the rest of the article, still sticking to my "No" answer.

DUQ said...

I agree with Jocelyn - it's all about paying homage. The creators should be honored that people want to live in their world too.

AndrewPrice said...

Jocelyn, I got your point. :-)

I understand both sides of the issue. I can fully understand wanting to control your own creation, but I also understand that fan fiction really doesn't harm anyone -- unless they're trying to make money off of it.

From a practical standpoint, I think it's actually kind of foolish to try to stop fan fiction. These people are a walking advertisement for what you've created. . . let them go out there and spread the word like good will ambassadors.

That's why I included the bit about Star Trek at the end. If they had tried to shut down the fans in 1967, Star Trek probably would have faded into history as just another forgotten show. But they didn't, and look what became of it!

Jocelyn said...

Andrew, Exactly; they are walking advertisements. Which is why they should be left alone.

Too bad Hollywood can't play nice.

LawHawkRFD said...

I have enough trouble finding any movies or TV shows to watch without getting too exercised over fan fiction. There is so much junk out there right now that the originators should be grateful for the small favor of someone caring enough about their junk to attempt to imitate it. As for suing them, aren't our courts tied up enough with litigious plaintiffs without adding a whole new genre to the list?

LL said...

As an author who enjoys the royalty checks, I still say "no". The rules on creativity and derivative creativity are a little mushy and there is a lot of case law that deals with this. In every case where a lawsuit is filed, it's for a share of or all of the profit derived. If there is no profit, what would the remedy be (for those of you who may say 'yes')?

LL said...

Additionally, I wrote two screenplays for which I was paid. In one case the movie was not made but I no longer own the rights. In the other case, the producer and director cut the movie to pieces and it came out looking like a mess. (It started out a mystery-horror film and ended up as a bad karate movie --- straight to video). I asked that my name not be included in the credits. However, I was paid.

The point to all this is that what I create can be changed on the whim of a Hollywood mutant - once I've been paid.

There is a company that turns R rated films into G rated films through heavy editing and puts them out on video. The art of the writer/director/actors is chopped up -- but they still do it because they pay for the rights.

Money seems to be the universal medium here. Without money involved in Fan Fiction, it has no legal legs in my uneducated/inexpert opinion.

AndrewPrice said...

Jocelyn and DUQ, I think the creators are partially to blame for short-sightedness, but I think the legal system is the real culprit because it doesn't make everyone's rights clear here.

For example, a lot of creators are worried that if they don't stop these people, they will lose their own copyrights. That's not true, but the fear is valid when you see things like "Xerox" lose their status.

I think it would be worthwhile to define the rights to protect the owner of the copyright, but I would not advocate making it illegal unless they are trying to make money on it.

JG said...

Isn't imitation the sincerest form of flattery? I used to be really into fan fiction WAY back in the day, and some of it was phenomenal. In fact, I'm pretty sure I read a significant subplot of the last Harry Potter book in a fanfic forum sometime in 2005.

I think fanfic helps actually propagate the original property. My sister wrote some Twilight fanfic, which she passed on to her friends, which they enjoyed so much it made them want to read the actual Twilight books.

AndrewPrice said...

Lawhawk, Very true. Also, I think a key thing to consider here is that few people pay attention to fan fiction, and those who do are likely to be heavily interested in your creation, i.e. they are the super fans that you want to have.

However, as I've said before, I can see where it could be troubling for an author if their creation gets misused. Still, on the whole, I think society is better off not injecting the courts into this unless the fan is trying to make money on it.

AndrewPrice said...

LL, Congrats on your work, even if the movie didn't turn out right! It's still pretty cool.

I agree that money is the driving factor here. People want to exploit their creations for profit. And I have no problems with that at all -- more power to them!

But some of them think that if they don't control the fans, then people will be offended by the fan fiction, which will lower the value of their property -- I don't see that as true as all. In fact, these are the fans who normally drive the value of your product, these are the people who buy t-shirts and toys and spread the word to everyone they can think of to go out there and see the creation.

On the other hand, you have people who are concerned about the unclear state of the law. These people are worried that they may lose their copyrights or the such if they don't "defend" their property. I think the law should be made clear to protect these people, i.e. it should be clear that no fan can gain any rights in a property by virtue of their fan fiction.

Beyond that, however, I think this is one the law should stay away from. People know what fan fiction is and they aren't going to hold the fan fiction against the main product. So there's really no harm.

AndrewPrice said...

JG, I think you're right. These people become walking advertisements for the creation itself.

And sometimes, the fan fiction is pretty entertaining and the creators actually absorb it into their works. Star Trek and Star Wars have both developed whole worlds of published materials because of the insatiable desire for both properties, and it was fan fiction that drove this. And it was that fan fiction that kept both of these properties in people's minds even when they weren't in theaters.

I would say fan fiction is the proverbial gift horse.

BevfromNYC said...

Where does the Fan Fiction writer stand if the original author turns it around and uses the piece to create a piece as his own?

You could equate it with Rembrandt using unknown apprentices to complete the backgrounds for his greatest works.

Tennessee Jed said...

the only way I could see where the original author who holds a copyright might make a case of "harm" is that the f.f. may be limiting his ability to make money off the characters he created. The claim, I suppose, would be, how many people would accept a knock off for free rather than pay for an original?

AndrewPrice said...

Bev, That's a very good question, and I don't really have an answer for you.

Usually, the law grants a copyright to the creator. Which would be the fan. But the fan used an infringed property to make that creation. In the music world, the fan would lose the right to the work. I suspect the result would be the same in the publishing or film world, but I'm not entirely sure.

The reason I'm not sure is that if they treat the underlying idea as unique, then it's possible that the fan might have a right in the underlying story, but just not a right to put it into the world created by the original author. So it could be that this remains the fan's property to use except as fan fiction. . . which would mean the author infringes on the fan's work if they publish the story themselves.

But I'm not sure on that point.

In any event, personally, I would say that the fan should have no rights in anything they create, so if the original author "steals" it, then the fan should have no right to complain. Although that does raise the question when is something fan fiction. If I included a "Han Solo" in my baseball story as a nod to Star Wars does that tread into the fan fiction world enough to involve infringement issues?

AndrewPrice said...

Jed, I think that's right. Usually, the standard is "chance of confusion." And there's none of that here because no one will confuse fan fiction with the real thing.

And I don't see how typical fan fiction could prevent or slow the sales of the real thing?

So I don't see what the harm is. There is neither reputational harm nor monetary harm. There is just "I don't like it" harm.

LL said...

I'm thinking of blogging on the subject of "Question: Should Fan Fiction Be Legal?"

Does that constitute fair use?

AndrewPrice said...

LL, Man, it's like legal day around here! I think that's fair use, but I know a lot of newspapers who would disagree with that. . . though they'll find out that they don't have the rights they think they do when somebody finally calls them on it!

Joel Farnham said...

Andrew,

I wonder if Fan Fiction ever became more popular than the original? By definition, it shouldn't.

AndrewPrice said...

Joel, I'm not sure if that's ever happened, and it seems unlikely -- though I guess it's possible. I would think the problem with fan fiction becoming too popular is the lack of the lack of exposure. But if it got picked up by the author and promoted or if someone famous did the fan fiction, then I could see it happening.

MegaTroll said...

You don't hear a lot about "Shrek" fan fiction.

AndrewPrice said...

I'm sure it's out there Mega.

BoilerRoomElf said...

Take heart, Mega - Shrek fan fic is HUGE in the Elf world!

AndrewPrice said...

That's funny! LOL!

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