Legal issues with fan fiction

Due to the modern definition of "fan fiction" as derivative works, there are many legal issues involved with fan fiction, most prominently (but not exclusively) arising under United States copyright law.

United States copyright law

A great deal of both original creative work and fan fiction is produced in the United States. 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 that major archives remove and ban such 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.Fact|date=February 2007 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. Fact|date=February 2007 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 former use clearly intended to comment on the original author's work by making a mockery of it.

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

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.

Since 2007, the Organization for Transformative Works (OTW), led by fanfic writers, fan vidders, and fan artists (including writer Naomi Novik), has sought to establish a principal in U.S. copyright law by which "all [non-profit] fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity." The underlying rationale is that fanfic is "transformative," constituting a comment upon and criticism of the underlying work, and thus falls under the exemption re-affirmed in "Suntrust v. Houghton Mifflin Co." [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 [http://writ.news.findlaw.com/hilden/20080121.html] ]

Copyright holders' attitude towards fan fiction

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 ' and ' from Bantam Books, fan fiction anthologies which followed Bantam's "Star Trek Lives!" by reprinting stories from various fanzines; as well as "", 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.

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," Fact|date=February 2007 and has also complained about sexually explicit Harry Potter fan fiction. [cite web
url=http://books.guardian.co.uk/news/articles/0,,1336775,00.html
title=Works in progress, an article from "The Guardian"
date=October 27 2004
]

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 seventeen issues of "The Grantville Gazette" featuring 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. 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, 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. [cite web
url=http://books.guardian.co.uk/departments/generalfiction/story/0,,853553,00.html
title=Fan fiction, an article from "The Guardian"
date=December 5 2002
] 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 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 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. [http://www.drizzle.com/~elf/other/The_Only_Fair_Game.html] 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 [http://groups-beta.google.com/group/rec.arts.sf.written/msg/6eadf6478c3e30dd?dmode=source] , while Niven maintains that it is a copyright violation that lies outside of protected speech, though he has not legally pursued the matter further. [http://interviews.slashdot.org/article.pl?sid=03/03/10/167206&mode=thread&tid=134&tid=192]

Copyright holders may have been changing their policies towards fan fiction. [http://www.fepproject.org/commentaries/ceaseanddesist.html] [http://www.chillingeffects.org/fanfic/] Some companies like CBS [http://www.chillingeffects.org/fanfic/notice.cgi?NoticeID=1067] and LucasFilms Ltd. [http://www.fanhistory.com/index.php/Star_Wars] , 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 [http://www.fanlib.com/cms.do?page=press.html] 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. [http://community.livejournal.com/life_wo_fanlib/] Those fans seem to be increasingly in the minority, as acceptance of such interference is tolerated because of the positives that can result. [http://gperiodenglish.blogspot.com/2007/09/tuesday-september-18.html] [http://forums.televisionwithoutpity.com/index.php?showtopic=3146274&st=510] [http://skeeterbeegoods.blogspot.com/2007/09/calling-all-aspiring-teenage-writers.html]

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. Fact|date=February 2007

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. Fact|date=February 2007 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.

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 [http://www.scifidimensions.com/Jun06/naominovik.htm] , 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 [http://www.annemccaffrey.net/index.php?page_id=20] she expects her fans to follow; Anne Harris has said, "I live for the day my characters get slashed"; [http://www.sfnovelists.com/2008/01/24/thoughts-on-fanfiction/] J. K. Rowling has mentioned fanfiction approvingly, and her lawyers have confirmed she's okay with fanfic [http://www.stuff.co.nz/stuff/4289769a4501.html] . In 2008, Steven Brust published a Firefly novel with a CC copyright notice [http://dreamcafe.com/firefly.html] .

Fan fiction outside the United States

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 "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.

References

External links

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=869742 Article on legal issues and slash fan fiction]
* [http://www.authorslawyer.com/weft/fanfic.shtml An essay upon the legality of fanfiction by lawyer Charles E. Petit]

ee also

*Copyright law
*Fan fiction
*Trademark law


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