August 10, 2006
Follow-up on Crimes of Fanfic
Lots of very interesting and generally civil discussion coming out in the Crimes of Fanfic thread, for which I am pleased. As some folks have surmised, I did in fact frame the discussion in a particular and confrontational way regarding fanfic and plagiarism, because I was interested in hearing from fanficcers and their readers on the matter, and aside from a few flubs of rhetoric on my part, it worked out pretty well. Thanks to those who participated (and who are continuing to post).
Having said that, I do have a very real concern, in that it's clear that some portion of fanficcers actually seems to believe that writing fanfic isn't actually copyright infringement, and that therefore it "exists in a gray area" or is actually not illegal via some interpretation of fair use. Some of this belief stems from the contention that there has not been (to the common knowledge) a copyright suit specifically dealing with fanfic, probably because a "Cease & Desist" letter is usually enough to cause the fanficcer to take down his/her fanfic so no court case is necessary. The thinking here seems to be that if a suit does not specifically address fanfic, then the legal status of fanfic is in fact indeterminate.
I can't help but think this is a bit of magical thinking, based on the idea that fanfic is in itself a legally special class of writing (possibly under the "we're doing this for fun" idea), which as far as I can see it's not. It's bound to the same injunctions and restrictions as any other piece of creative writing. Certainly US copyright law carves out protections for fair use, parody and criticism, and equally certainly some fanfic qualifies under a realistic reading of these protections. But I hazard to guess the vast majority of fanfic could not be shoehorned into these protections even under the most liberal of terms.
Now, I realize my opinion is suspect, because I am not a lawyer, and also because after yesterday's entry, some fanficcers undoubtedly see me as the hated enemy. So I went out and about on the Web to look for bolstering of this opinion of mine from folks who have some idea of the relevant law. Our first stop is the Web site of Kevin A. Thompson, who is an intellectual property attorney with Davis McGrath LLC, and whose area of practice includes trademark, copyright, and internet issues. Here's what he says on the issue:
Fan fiction is prevalent on the Internet, but is it legal? It turns out that’s a really interesting question. For the great majority of what is available, the answer is no... first and foremost fan fiction is almost always never authorized by the holder of the copyright in the work. Most of these stories are classified as an “unauthorized derivative work” and are therefore an infringement. A derivative work is one that is based upon one or more preexisting works. The right to create derivative works is one of the exclusive rights given to the copyright holder pursuant to statute. Infringers of federally registered works can be subject to monetary damages, including statutory damages which can range from $750.00 to $150,000.00 per work in the case of willful infringement. Plus, attorneys fees can be awarded by a judge in certain cases.
Our next stop is the Chilling Effects Clearinghouse, a repository of legal information complied by the Electronic Frontier Foundation and the clinics of various law schools, including those of Harvard, Stanford and Berekely. On the entry page the site has on fan fiction, the CEC notes that "Not all fan fiction is a violation of law," which is of course true. However, reading ancilliary pages makes it clear that while not all fan fiction violates the law, a whole lot of it does:
Copyright owners have the right to prepare derivative works based on the copyrighted work. In most cases the right to prepare derivative works is superfluous since when this right is infringed, the right to reproduction will also be infringed. For example, if a FanFic author creates a new story about Darth Vader, the author will have infringed both the derivative right and the right to reproduce that character.
In order to prove copying, it must be shown that the fan fiction author copied the work (either through direct or indirect evidence), and some of the copied elements are protected and that the "audience" of the work would also find similar elements. Since FanFic authors generally do not deny that characters and settings are borrowed ("copied"), as seen in their disclaimers, it is likely that copying will be found. Then you must raise the defense of fair use.
Yes, and what about fair use? Fair use is part of the copyright setup for the purposes of (and here I'm quoting the CEC) "criticism, comment, news reporting, teaching, scholarship, or research." While the CEC notes "There is a strong argument that many fan fiction stories are transformative since they create a different persona and set of events for the character," this is only one criterion for a fair use defense; in any event most fanfic is not created for the purposes of criticism, comment, news reporting, teaching, scholarship and research -- not every fanfic is a parody -- nor, is it likely, would any competent court of law hold that your standard-issue Harry/Draco slash constitutes such (and at the very least, Scholastic's lawyers would have lots of fun smashing that defense to pieces). I suspect that many of the fanficcers who hold "fair use" up as a shibboleth in their defense would find to their grief that it doesn't well apply to what they do.
In sum: The large majority of fanfic is almost certainly a copyright violation; the large majority of fanfic is almost certainly illegal.
The reason to accentuate this point is not to rub fanficcers' noses in it ("Ha! You silly, silly fanficcers! I laugh to your pathetic Harry Potter handling!"), but to dissuade fanficcers from assuming they have certain protections under the law which they almost certainly do not. Simply as a practical matter, rather than assume that their fanfic exists in a legal Schroedinger's Court Room, where the legality of fanfic exists in an indeterminate state until someone cracks open the door and withdraws a verdict, fanficcers should work under the knowledge that most of the copyright case law suggests they do not have a legal right to produce fanfic, and proceed accordingly.
In fact, I suspect, the large majority of fanficcers do just that, which is why among other things they are admirably self-policing whenever one of their number gets it in his or her head to, say, start selling their fanfic. But clearly there are more than a few fanficcers who are under the impression that what they're doing is legal, or at least, not so illegal that they can't do whatever they please in someone else's universe, with someone else's characters. For those folks, I suspect the best solution, if they truly believe fanfic to be legal, would to make themselves a test case, so that there is an on-point copyright case involving fanfic. I don't suggest using any universe I've created to do so, since I'm already on record as thinking it would be cool to have fanfic. However, I hear Anne Rice would be a fine person to test this legal theory upon.
I think fanfic is perfectly fine; I also think it's largely illegal. I think fanficcers will be better off if they share this basic frame of mind with me.
Posted by john at August 10, 2006 11:20 AM
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