Fan Fiction Post #12

Recently in my reality, the topics of ethics and copyright have been ongoing topics of study, argument, and confusion. At first, I thought ethics was easy – just do what is right = ethical, but then you bring in the different elements of what is right for who or what in each circumstance and it is up for interpretation. Then with copyright, if you write it down or create it in a fixed form, it is automatically copyrighted. You wrote it, you created it, it and its components are yours. Period.  (Well, maybe, as long as you aren’t doing it for someone who has hired or commissioned you to do it.) At some point in my attempt at understanding and accepting, the matter of Fan Fiction came up, mixing the question of ethics and copyright.

As you may or may not be familiar with Fan Fiction, it is fiction written by fans of original works, rather than the original author or creator. Fans write continuations of stories, use characters from existing stories, or use the alternate worlds created by others to compose new stories and honor the compositions they love. Most fan fiction is produced with the assumption that it will primarily be read by fans of the original works and they will have knowledge of the canonicalfictional universe the story is set in. These endeavors are rarely commissioned or authorized and are almost never professionally published.

The “act” of Fan Fiction has been around for a long time. The sequel to Cervantes’s Don Quixote, in the early 1600s, was written by an admirer or fan of  Lope de Vega, a rival of Cervantes. At the turn of the 20th century, there were many parodies and revisions of Alice in Wonderland and fans authored multiple versions of Sherlock Holmes. In the 1960’s fan fiction was popularized when Fanzines (amateur or semi-professional magazines of fans and fandom) of Star Trek were published and distributed at conventions and through subscription.

Is Fan Fiction in violation of copyright? Yes. Yes it is. An author or copyright owner has the right to stop some else from copying, distributing, performing, or displaying their characters without permission. The  owner also has the right to stop the creation of derivative works — works created based on their intellectual property. However, there are some authors of original works, some very famous and successful ones, that are flattered and even encourage their fans to create new stories based on their work. There are also those authors/owners that are offended and threatened by the creations of their fans.  They don’t want their characters, worlds, and stories portrayed in negative ways, in ways that conflict with their original vision, or that may cheapen the value of their work. Here is the exception to the rule that makes some Fan Fiction okay: Fair Use allows limited portions of source material to be used without permission from the copyright holder. Here is an excerpt from the United States Copyright Office in regards to Fair Use.

Fair Use from the U.S. Copyright Code Title 17 Section 107:

“Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1.The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2.The nature of the copyrighted work
3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4.The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

Yep, didn’t really clear it up for me either as to how Fair Use makes Fan Fiction legal.

Is Fan Fiction unethical? Yes, maybe, possibly… This is a sticky subject.  Most Fan Fiction isn’t written or published for profit, it is primarily written for other fans and the accolades the author may get from those fellow fans. They are not gaining anything of “real” value from their fandom. If an author carries it to the next step by selling their fan fiction in any part, without permission from the original creator or copyright owner, are they then stealing profits generated by the derivative work? No matter how unlike the original work it is, is it ethical to profit?

The example that brought me to look into these questions is Fifty Shades of Grey by E.L. James. This book is based on a piece of Fan Fiction, inspired by the Twilight series, that became a wildly popular Internet post prompting James to want to profit from her work. It would have been completely within Stephenie Meyer’s (Twilight‘s Author) rights to put a stop to the original incarnation, she did not. Fifty Shades of Grey has original characters, even when it was still just a piece of fan fiction the characters were not the “exactly” the same as the Twilight characters.  They shared names, likenesses, and similar backgrounds with minor “grown-up” variations. Now that the characters are her own and the story was always her own, it is technically legal for her to publish her story, but is it truly ethical? Huh. Seems like that might fall into a “shade of gray”.