Legal issues with fan fiction
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Due to the modern definition of fan fiction as derivative works, there are many legal issues in fan fiction, most prominently (but not exclusively) arising under United States copyright law. The purpose of this article is to detail and clarify these issues.
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[edit] United States copyright law
A great deal of both original creative work and fan fiction is produced in the United States, a country whose entertainment industry has substantial political influence. Therefore, U.S. law is particularly important 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, though they do not receive ownership of those works. 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. The owner of the original work (film, TV show, etc.) therefore has some legal power over fan fiction through their ability to sue the creator of the derivative work for copyright infringement. Generally, authors who do not want derivative works being written without their direct permission and/or the ability to control it, request to major archives the removal and banning of such derivative works based on their own. 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.
That said, American copyright law specifically protects parody, and also includes a provision that the specifically protected categories are not necessarily the only protected categories.[citation needed] Because of this, some argue that most fan fiction lies in a legal gray area between fair use and violation of copyright law - at least in cases where U.S. copyright law would apply to the author or online publisher of the story.[citation needed] An example of this principle can be found in Suntrust v. Houghton Mifflin Co., 252 F. 3d 1165 (11th Cir. 2001), in which the author of The Wind Done Gone successfully defended herself from a lawsuit based on her use of the characters from Gone with the Wind. The key difference between this case and the Stallone case was that the latter use clearly intended to comment on the original author's work by making a mockery of it.
[edit] 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.
[edit] Content codes
Many sites in the past, including the popular FanFiction.net, used the MPAA ratings system for content guides. However, the MPAA lodged complaints against that site and others for the unauthorized use of the trademarked ratings. Today most archives use their own content codes or require a detailed summary with "warning labels", though some, including FanFiction.net, now use the Fiction Ratings system, which is free for archives to use after registration with the Fiction Ratings website.
[edit] Arguments for the legality of fan fiction
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 earn no profit. However, copyright (and trademark) infringement can still occur even when the infringing parties do not profit. The non-profit nature of fan fiction is still important, because it limits the damages that a court could find and also strengthens a possible defense of fair use of the copyright or trademark in question.
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.
A noted exception is Lucasfilm, which has threatened or sued many sites precisely because of their non-commercial nature. Strangely, though, the company also encourages the production of parodic fan films through The Official Star Wars Fan Film Awards, and once made available a small library of sound effects.
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.
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. J. K. Rowling says she loves fan fiction of all kinds, though she admits to finding some of the works to be "quite bizarre,"[citation needed] and has also complained about sexually explicit Harry Potter fan fiction. [1] Douglas Adams also reportedly appreciated fan fiction based on his works, to the extent that some would say that there are scenes in So Long, and Thanks For All the Fish that seem to be inspired by fan fiction.[citation needed]
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 five issues of The Grantville Gazette featuring fan fiction and fan non-fiction alongside his original work. 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. At the time, the intent was to make Darkover a shared universe similar to the Cthulhu Mythos. The author eventually discontinued these after a 1992 skirmish with a fan who claimed authorship of a book identical to one Bradley had published and accused Bradley of "stealing" the idea. The resultant lawsuit cost Bradley a book, and her attorney advised against permitting fan fiction of any kind. This incident is credited by some to have led to a "zero tolerance" policy on the part of a number of other professional authors, including Andre Norton, David Weber, and Mercedes Lackey.
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. [2] Similar efforts have also been taken by Annette Curtis Klause, Robin Hobb, George R.R. Martin, among other fantasy and science fiction novelists. Many authors do this, they claim, 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 readers claim to have been turned off of writers after hearing reports of these or similar anti-fan fiction stances, or after having allegedly borne part of the brunt of anti-fan fiction campaigns.
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 in which members of Niven's hyper-masculine Kzin species engage in gay sex and BDSM. [1] 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 [2], while Niven maintains that it is a copyright violation that lies outside of protected speech, though he has not legally pursued the matter further. [3]
Many tie-in novels and novelizations have the curious status amongst some 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.
Several people have argued that fan fiction about real people is less risky legally than fan fiction about fictional characters. A Beatles fan fiction website has argued that when you write about a fictional character, you technically "steal" the character, but fan fiction authors can also get in trouble for writing about real people if it slanders (or "flames") the subject.
[edit] Fan fiction outside the United States
In countries such as Russia, where copyright laws have been lax at best, 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 dôjinshi subculture is similar to a combination of the United States subcultures surrounding underground comics, science fiction fanzines, and fan fiction. Many dôjinshi 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.
[edit] References
- ^ Works in progress, an article from The Guardian (October 27, 2004).
- ^ Fan fiction, an article from The Guardian (December 5, 2002).
http://www.angelfire.com/band2/beatlesfanfiction/pages/write/law.html
