When I first started this series, I thought I was going to have trouble coming up with eight different aspects of fanfiction to talk about, when as usual, my real problem was learning to shut up. Now here I am, on the seventh of eight posts, and since the last one is mentally reserved for something else, I guess I’ve run out of wiggle room. It’s time to pull out the old soap box…
…and lay some uncomfortable truths down.
Look, fanfiction is fun, fanfiction is awesome. I write fanfiction and apparently, so do most of my writer-friends. In fact, in answer to my casual poll, more than half of pretty much everyone I personally know have admitted to writing fanfic or drawing fanart at one point in their lives (usually overlapping their ‘horny adolescent emo’ phase), so either I run in some wild circles (always a possibility) or it’s a lot more common than the ‘fringe’ society it is purported to be. Gee, it’s almost like people make fun of it and make others feel embarrassed to be part of it.
Whatever, that’s a subject for another day. Today, I’m going to try and stay focused. So, as I was saying, fanfiction is fun and I personally believe that fanworks enrich a fandom by allowing the fans to feel as though they are a real part of the source universe. I could even go as far as to say that I consider certain fandoms to be a community in the true sense of the word. Having said that, and with all apologies to Mr. Spock, the needs (and feelings) of the many do not outweigh those of the Few or the One, by which I mean behind every good game or book or movie, there is a Creator, and that Creator possesses the absolute right to determine what is done to his, her or their creative property.
So let’s ask the real question here: Is fanfiction even legal? Well, yes and no. Great answer, huh? You want a better one? You can start here. That’s Sections 101-111 of the U.S. Copyright Law and I’ma tell you right now, it’s a dry read. Bearing in mind that I am not a lawyer, let me break it down for you.
The copyright owner for any one particular work has the exclusive right to create derivative works (meaning any work that draws upon any established character, setting or situation exclusive to the owner’s original work; in other words, all fanworks), or to approve or endorse the derivative works created by others, OR to condone those works or prohibit others from making them available. That is their right and ONLY their right, and no, just crediting the source in your fanwork or acknowledging that you, a humble fan, are using characters from, for example, Harry Potter without J.K. Rowling’s permission does not release you from the possibility of legal ramifications if she stumbles upon your 140 chapter opus, The Boy Who Banged, and decides to sue you so hard your hair spontaneously catches fire. If anything, it worsens your legal position considerably, since you admitted you know what you were doing was wrong. And no, just because other people write worse stuff does not mean you get a pass. The “But you let HIM do it!” defense didn’t work on my mom, it didn’t work on that cop last week and it will not work in any court of copyright law.
But is there a right way to write fanfiction? Let’s talk about that.
Fans Who Fic
Covering Your Ass: What Everyone Should Know About Copyright Abuse and the Fair Use Law
Copyright protections are, and should be, absolute, but there are a few ways for fans to wiggle around them.
First and foremost, not every character or franchise is protected at all. Copyrights expire (in the case of written works, the author holds the copyrights for as long as they live, plus something like a hundred years after they die, AND they can give their copyright over to the control of their family or estate, and so extend the lifetime of the copyright), and certain works are already in the public domain and available for anyone to use.
HOWEVER! Be aware that there’s not always just the original work’s copyright to think about but also derivative works and their copyrights. A great example of this is that of Frankenstein’s monster. That book is in the public domain, so anyone can use Frankenstein or the monster. Great, right? But beware, because there is a very real and legal-binding difference between Mary Shelley’s Frankenstein (in public domain) and Universal Studio’s Frankenstein (still copyright protected). How the hell can they do that? Because Mary Shelley came up with the concept, but did not describe the monster beyond a few broad strokes, nothing so distinctive as to create a recognizable character. ‘Reanimated dead dude’ is just not specific enough to be protected, even when her book’s copyright was active. However, this…
…is, and believe me, Universal is serious about keeping their monsters on lock. Are there unauthorized Frankys out there, flattops, groans, bolts and all? A few, but I think you’ll find that of them fall squarely under the protection of Parody/Satire.
This is the first and probably best-known loophole in the copyright law, and come to think of it, it might be why so many fanfics tend to be aggressively goofy. If so, this is where I should really point out that making fun of something doesn’t automatically make it a parody or satirical. The actual definition of ‘parody’ is pretty ambiguous from a legal standpoint, but its main points seem to how the original content is used and whether the transformed work can be seen as injurious to the original content.
Example. Some years ago (quick Google search), in 2003, the webcomic Penny Arcade responded to American McGee’s gritty version of Alice in Wonderland by making a fake promo poster for American McGee’s Strawberry Shortcake. They were promptly hit with a takedown order by American Greetings, who owned Strawberry Shortcakes content copyright. The good folks behind Penny Arcade complied because (and I’m paraphrasing what I remember of the statement because I’m too lazy to go into the next room and look at the book and too lazy to look it up online) on second look, they realized they had been cutting into Strawberry Shortcake in order to parody American McGee. And sure, they later cut into American Greetings on purpose, but in that circumstance, they knew they were wrong and they did the right thing for the right, rather than just the legal, reasons.
I used the Harry Potter example in the intro to this post because it’s such a perfect example of the tricky situation surrounding creator approval. J.K. Rowling’s position on fanworks is largely considered favorable. She COULD refuse to allow any commercial entity to sell any beverage called Butterbeer, for example, but CHOOSES to let the butterbeer flow (provided you do not copy the official label of the butterbeer sold at Universal Studios’ Potterworld). She likes fanworks. She says it’s flattering. But she has made several statements to the effect that she does not like the smutty stuff. I don’t know if she’s ever disliked something to the point of demanding a take-down (the sheer volume of slash fic out there involving the Potterverse would suggest otherwise), but it’s worth mentioning.
I learned this with a simple Google search, which is something I highly recommend anyone do before they make their fanworks available. It’s just common sense, especially as there are creators out there with a take-no-prisoners attitude (and I repeat, they have EVERY RIGHT to do so). People have been taken to court before, although it’s usually companies squabbling with other companies when it happens (DC and Marvel have a long history of ‘borrowing’ ideas from one another), and it usually devolves into a costly debate on what Fair Use means, and I’ll tell you right now, it doesn’t mean what you think it means.
How can I say that with such certainty? Because the Fair Use Act was written to be deliberately vague. It’s actually easier to define what it DOESN’T protect.
Fair Use does not allow for any derivative work to be used for commercial purposes or for profit. In its most basic definition, this means you’re not allowed to sell your fanfiction, but there’s a lot of grey in that area. When my mom wrote Star Wars fanfiction back in the day, there was no internet, so every book meant printing out about 100 pages, plus shipping it to those who wanted to read it, and you know, hiring an illustrator and binding it with a cover at the local Kinkos. These costs added up, so before she got too far along, she contacted the Lucasfilm lawyers for permission to distribute and to sell but not commercially and not to make a profit. And Lucasfilm, who have a reputation for hardassery as far as copyright goes, agreed. So you never know.
Not for profit also means you aren’t allowed to apply protected content to any existing commercial enterprise, such as using, say, Bugs Bunny as the mascot for your exterminating business, even if you change his fur to brown and dress him in coveralls. If it’s still obviously Bugs Bunny, it’s not Fair Use. On the other hand, some authors and a growing number of studios consider fanfiction to be a form of promotion and not only allow it to be distributed, but allow you to sell it. Kindleworlds has a short (but growing!) list of these ‘Approved For Fanwork’ titles. HOWEVER! If the copyright holder objects to the content of your GI Joe fanfiction, they can still demand you take it down, even while other authors are allowed to go on selling theirs, EVEN if you consider your content to be less controversial. Again, the “You let HIM do it” defense does not fly in court.
The essential nature of the original content is also considered. When adult content finds its way into fanworks based on source material intended for very young audiences, it can be that much harder to claim Fair Use as a defense. In fact, the author of such a work may easily find themselves in violation of some other laws, such as the distribution of pornography that portrays pedophilia or bestiality.
Additionally, Fair Use does not allow for basic reworkings of original content. In other words, you can’t novelize your favorite episode of Gravity Falls and call it fanfiction (I mean, you probably could; the creator of Gravity Falls is infamously tolerant of fanworks, but as a legal point, you can’t), and you can’t “MiSTie,” meaning copy an original work and just throw in your own commentary. In order to even be considered as protected by Fair Use, you must transform the source into something original.
You can do this a number of ways, but the easiest is simply to strip away the recognizable features of the source until you arrive at the base elements. You can’t write about a boy named Harry Potter with a lightning-bolt shaped scar on his forehead who was kept under the stairs until he was admitted to a magical school called Hogwarts; You can write about a boy named Tip Taylor with one white eye who was kept in the attic until he was admitted to a magical school called Whispergraves. Concepts cannot be copywritten. Plots cannot be copywritten. Personalities cannot be copywritten. Of course, all these things together may still be judged as plagarism, particularly if young Tip up there has two friends named Roland Ottery, who is poor and has a big, boisterous family, and Helen Ranger, who is the daughter of two non-magical Mumbles and is super into books, and your first ‘original’ work is titled Tip Taylor and the Magician’s Marble. Seriously, the law is vague for a reason and that reason is that so a judge can use her common sense and slam the gavel on your sneaky ass if you try to steal someone else’s work.
Finally, and perhaps most importantly, you can’t claim Fair Use if the copyright holder can successfully argue that your fanwork has the potential to affect the value of the source material or any future works. That can be tricky to prove, but it can be even trickier to disprove.
Oh, and so-called ‘celebrity fanfics?’ That’s not remotely protected by Fair Use (and not always protected by the Parody defense). Writing about a real person, especially if you go for the shock/smut audience, is straight-up slander and any of these people (who, being celebrities, are likely to have more money for lawyers than you) can sue the hairs right off your ass if you do it.
It’s worth pointing out that copyright protections and permissions vary from country to country, and in today’s global internet society, many people are hesitant to pursue legal action where the lines blur, but ‘hesitant to pursue legal action’ does not mean ‘totally cool yo’, so don’t rely a measly ocean to save you when you publish Mickey: The Mouse, the Man, the Nymphomaniac. Disney will airlift your ass out of Antarctica if they have to and while you are being roasted by their lawyers, they will be building a rocket in the Tomorrowland pavilion so they can fire your fresh ashes into space.
The long and short of it is this: The only real protection that fanworks have is the tolerance of the creators whose work we fans are infringing upon, so if there is one rule, it is BE RESPECTFUL.
Find out what the creator’s actual stance on fanfiction is. Do not rely upon the “But you let HIM do it” defense. A few seconds on Google is a small price to pay to prevent a cease-and-desist order (or worse, a summons). When in doubt, it can’t hurt to try and contact the creator and ask. Most of them are sensible people and would also much rather simply say, “Yeah, that’s fine,” or “As long as there’s no explicit content, please,” than get lawyers involved. However, once you go this route, you’d better be prepared to abide by their decision, even (and especially) if their answer is “No.” You do not want to put a Creator in a situation where they think the matter’s settled, only to have their PR Agent burst into their office a year later with the crazy eyes going, yelling, “Have you SEEN The Sexy Adventures of Sonic the Hedgehog: Gotta Cum Fast, Volume 69, The Sexxening?”
Be aware that many creators are perfectly okay with fanfiction that is posted on fanfiction sites, such as Wattpad or Ao3 or ff.net, but do NOT want it made generally available, such as on Amazon, EVEN IF YOU ARE ‘SELLING’ IT FOR FREE.
If the creator is not okay with selling fanfiction (or is not okay with the content of your not-for-profit fanfiction), you must respect that. This doesn’t mean stop writing and burn all copies, but it does mean make sure that you sever all identity markers with the source material if you’re going to continue to make it available.
Above all, remember that copyright law does not exist to screw fans out of creative expression. It exists to protect the integrity of a creator’s work, which is something that everyone who has ever written some variation of “…Summer Windborne Lovepony is MY OWN OC and you CANNOT USE HER WITHOUT MY PERMISSION1!!!11” should appreciate.
Good fanfiction is, at its heart, a labor of love. I believe that. But bad fanfiction is…well, bad, and I can completely understand why a creator would want to reserve the right not to have their name (and professional reputation) attached to a viral shitsterpiece.
…and on a completely unrelated and non-hypocritical note, be sure to check out the new chapter of my FNAF fanfic! Updates every Saturday (or until Scott Cawthon tells me to stop).