Transformers: Fanworks and copyright

It seems the reading/writing world is in a fuss right now over the publishing of the novel 50 Shades of Grey, a rather sordid work that originated as a piece of Twilight fanfiction. While I haven’t read the work in either of its incarnations (neither Twilight nor this work’s subject matter being to my taste) I do find the meta-level ethical and legal issues about this quite fascinating.

Likely most folks reading this know what fanfiction is, but for the few uninitiated: The majority of fanfics are fan-written short stories–most less than 10,000 words, if that–based on the characters and settings of a published work. They borrow from books, movies, TV and even real-life people and situations. The exact nature of the stories in question can vary wildly depending on the fandom and authors in question. Some are G-rated side stories. Some are very adult “pairings” of the work’s characters. Exactly how closely related these works are to the original can also vary, and it’s because of that factor that there’s no real way to make a blanket determination of their legality.

There’s a good, brief explanation of plagiarism and copyright as related to fanfic here, but I want to expand on that, and go into more detail about the legal issues behind different types of fanworks. (Bearing in mind that I’m not a lawyer and this isn’t legal advice.) I also want to explain a little more about how and why fanworks are created, and why fanworks creators aren’t inherently unethical thieves just looking to bask in the glory of someone else’s work.

Ethics: The Borrowers

First off, a bit of a disclaimer: I’m a fanfic writer myself (under a pseudonym which I won’t mention here!) Those unfamiliar with it often wonder why we do what we do. Why not just write original fiction? Why borrow from the works of others?

There are a lot of different answers for this. The biggest one, of course, is simple: it’s fun. It’s fun to hang out with people who like the same things you do and actively participate in that interest instead of just passively experiencing it. Why else do sports fans wear their team’s jerseys and play fantasy football? They want to do more than just watch the game. They want to immerse themselves in that world. Pop culture fans are no different. We go to conventions, we play games, we collect memorabilia. We meet and talk to the creators and sit around with fellow fans getting into deep discussions about whether Han really did shoot first. For creative people, that kind of active participation is of course going to involve the other things we like to do, so we participate by drawing, making costumes, reenacting scenes and, yes, writing fanfiction.

There are other specific reasons, too. For folks into adult fanfic, there’s really no other way they’re going to be able to explore those relationships–especially same-sex ones–because you’ll never see that in canon (especially true for TV and movie fandoms.)  Sometimes, it’s also a matter of wanting to explore a canon world beyond the constraints of what its medium allows. TV shows, for instance, don’t have the time or budget to really get into side stories and secondary characters the way their original creators might like. We fic writers don’t have such constraints, and are therefore free to go off in those directions.

Most fanworks creators don’t necessarily take their works any more seriously than that. It’s a hobby–just something they do in their spare time to have fun and hang out with people who share their interests.

For more serious creators, however, a fan community can serve an even greater purpose in helping them to develop their craft. For young or untrained writers, for instance, fellow fans are a built-in feedback group they’d never be able to get any other way. Formal classes and workshops, in addition to being a time and money sink many people can’t manage, also come with a considerable amount of pressure. Having a teacher or workshop leader sit in judgment of one’s work is very intimidating, especially for people who are just starting out. A supportive peer group, on the other hand, can make learning a lot easier and less stressful. When your future doesn’t rest on whether someone likes that 3,000-word story you just wrote, you’re a lot more free to throw yourself into it.

Even for more experienced or trained writers, such as yours truly, fanfic offers a great deal more freedom to practice and train than formal structures allow for. Had I not written ~200,000 words of fic, it’s doubtful I’d have been confident enough in my work and its quality to finish the two novels I’m currently shopping around to agents. I had a lot of bad habits that needed correcting, and sorting those out via something that wasn’t nearly so critical as an original work was very valuable to me.

While I don’t doubt that there are some fanworks creators who borrow from others’ works solely to get attention or to avoid the effort of creating an original work, I really don’t think that describes the vast majority of people who do this. We’re not out to ride on someone else’s coattails. We’re just having fun and learning. Hardly unethical, if you ask me.

Legality: Whose Work is it, Anyway?

Now, as for the other issue with fanworks, first, I want to emphasize that there is no one hard-and-fast legal rule that’s going to apply here. Because fanworks can vary so wildly in everything from their adherence to source canon to length to the method by which they’re made public, each case is going to be unique from a legal perspective. So don’t use anything I tell you here to determine whether a given work is likely to get legal scrutiny. This is just an amateur media-law nerd’s overview of the issues.

As mentioned in the link above, the fair use exception in copyright law has several different components, and it usually takes a judge in an actual court case to sort through those components to determine whether a given work qualifies as fair use. Generally speaking, however, those components come down to two things:

1. How close is the work to the original?

2. Is this work likely to divert money from the original’s creator?

First off, the originality issue.

In the fan community, there’s often a bit of scorn leveled at people who create adult fanworks, rather than “gen” or G-rated works that simply take place in the same universe as the original. Yet, adult works are actually on firmer legal ground. The closer a given fanwork is to its canon, the more potential it has to interfere with the original work’s potential audience. No-one is going to assume that 1200 words of Sam and Frodo getting it on is something Tolkien would have written. On the other hand, a story about Aragorn’s teen years, and the loss of his mother? That starts getting into the Professor’s territory.

Adult fanworks generally fall into the category of AU, or alternate universe. The term is usually used to describe works that are so different from their source material as to be thought to exist in a separate universe. Most crossover works also qualify–for instance, a fic in which The Doctor meets Gandalf would definitely be AU. Sometimes, AU fics are so very different from the originals as to be nearly unrecognizable. The most common of these is taking the characters out of their existing stories and putting them in something else entirely. Gandalf as a bored middle-school teacher in suburban Ohio, for instance. Or Merry and Pippin as Butch and Sundance. Some AU writers even go so far as to change characterizations. Their character named Gollum may be a happy little woodland sprite instead of a wretched mess of a creature.

Most of these works are on relatively steady legal ground because they fall into the category of parody. Normally, one might think of parody as a work that’s specifically intended to be satirical, but legally speaking, any work that’s drastically different and presented as such would be considered that. For instance, West Side Story, though generally a copy of Romeo and Juliet, is thought of as its own work because the structure of the story is moved to 20th-century street gangs. Romeo and Juliet is of course in the public domain, but even if it were not, WSS still wouldn’t be thought of as a copyright violation. You can’t copyright an idea, only the expression of that idea. Which is why there are eight gazillion stories about magical orphans who save their people from enslavement by an evil overlord.

Then there’s issue number two: money.

The general rule in the fanworks community is pretty simple: you don’t try to sell your work. You don’t go posting it as an e-book and charging people $2 to download it. You also don’t post your work on commercial sites that you’d get ad revenue from. Even if you’re pretty sure the work is AU enough to fall under parody, you really don’t want to go borrowing trouble by trying to make money from it.

Even if you’re not actively trying to make money from it, however, there can still be a money-related issue: whether your work can be seen as affecting the revenue stream for the original.

The core of this issue is the argument that any work derived from an original is de facto a product of the original creator, and therefore his or her property to profit from or not as he or she wishes. So, even if you’re not making money from your fic, and even if your fic isn’t stopping people from buying the original (or, as is often the case, is actually drumming up more interest in the original and getting people to buy more of it) the original creator may argue that she has the sole right to write about a character or setting she created. Obviously, a creator can’t copyright a brown-haired, green-eyed boy wizard, but she can copyright one named Harry Potter who goes to a wizarding school and has a couple of friends named Ron and Hermione. If you write a story in which an adult Harry becomes a professor at Hogwarts and accidentally sets the whumping willow on fire, Rowling may well sue you. If she were to write that story, she’d make a fortune from it, even if your version doesn’t make a single dime.

This is again an area in which AU fic is on steadier legal ground. Theoretically, Rowling could probably make a pretty penny if she were to write her own Harry/Draco slash, but there’s really no way she’d do so. More likely, she could argue that Harry/Draco slash is damaging the Harry Potter brand and therefore affecting how much money she can make from it, but she’d probably have a hard time proving that bit in court.

Which brings us to the work in question, and whether it’s legal or ethical. I’m going to argue that yes, it is.

First off, I don’t want anyone to think I’m defending the content of the work, or this particular author. I have issues with both, for various reasons. This is strictly a matter of principle in this case.

Ethically, there’s no issue, here. The original work was fanfic, like any other, and therefore falls under the same ethical concerns. From what I understand, the story was basically an original work that simply happened to use characters and settings from Twilight–like literally thousands of other AU fics in hundreds of other fandoms. She may have been inspired to write the story due to her passion for the original work and its characters, but that doesn’t mean that the meat of her work was just a copy of Meyer’s. There’s no moral crime in being inspired by the work of others–artists do this all the time.

On to the legal issue. As the original fic was wildly AU, it would certainly qualify as parody, so that part of the test would pass, which leaves us with one question: is this author profiting from characters Stephenie Meyer created?

I’m going to argue no, and for one simple reason: Not only did her fic thoroughly transform the original work so much it qualified as parody, but the rewritten work so thoroughly transformed her original fic as to be considered a parody itself.

Much of the passages, scenes and plot in the published version may be the same as the fic, but since she can’t plagiarize her own writing, that’s not an issue. The issue is whether the characters presented in the published work resemble Meyer’s enough that Meyer can argue that they still belong to her. As these characters have been stripped of their names, physical descriptions, time and place and every other identifying characteristic beyond a few basic personality traits, then no, they are not Meyer’s characters. They may have been her characters in the original fic, but they are not her characters in the published work.

Think of it this way: George Lucas was inspired by The Lord of the Rings when he wrote Star Wars. One could even think of the original story as being a piece of AU LOTR fanfic: porting the magical orphan’s hero’s journey to a galaxy far, far away instead of Middle Earth. But even though Luke Skywalker and Frodo are similar characters playing similar roles in similar stories, they are NOT the same character, and this is NOT the same story. Lucas may have built his story on a general framework borrowed from Tolkien, but that doesn’t mean he didn’t write an original story with original characters.

Again, you can’t copyright an idea, only the execution of it. And likewise, you can’t copyright an idea for a character, only the specific details of the character you’ve created. Which means that if the character in 50 Shades of Grey who was once called Edward is no longer a broody, sparkling vampire, then he’s not Stephenie Meyer’s character.

Whatever the artistic merits of the story in question–and, having read a few passages, I’d argue that they are few–the legal and ethical principles for it are sound, in my opinion. This is, for all its poor quality, an original work that was merely inspired by characters and settings someone else created. That’s not a violation of copyright.

About Shawna (A Mediated Life)

Writer, singer, parent, fan, media maven, and general ne'er-do-well.
This entry was posted in Entertainment, Ethics, Fiction, Geekery, Intarweebz Drama and tagged , , , . Bookmark the permalink.

7 Responses to Transformers: Fanworks and copyright

  1. jillsorenson says:

    Very interesting and informative, thanks. I haven’t read 50 or Twilight but agree that they seem different enough. About copyright infringement. Must both points (similarity *and* potential loss of revenue) be proven in order to win a lawsuit? Also, does crediting the source matter in CI? Most parodies and retellings are obvious nods to the original. When the reteller makes no mention of the inspiration, it looks “shadier” to me.

    I’m also wondering if plot points and scenes can be copyrighted. Say I rewrite The Hunger Games, only change the main character to a medieval boy in space (or whatever), but follow the storyline closely, copying some scenes (not dialog). And then I call it The Hunger Space. Or I call it Space Warriors and claim I’ve never read Collins. Either way, am I in trouble, assuming I publish for profit?

    • With another caveat that I’m not a lawyer … :)

      Technically speaking, any non-licensed use of a copyrighted work can get you sued, regardless of who you are, whether you made money from it, whether you credited the source, etc. Even someone writing completely AU fanfic that they post for free can, should the copyright holder get fussy about it, find themselves served with at least a C&D. Whether that legal action goes anywhere is up to the judge in the case, and since each case is different, there’s no real way to say that a given non-licensed use is going to pass. The fair use exception isn’t a shield against being sued in the first place, but a defense in court, and in most cases, all its various components have to be satisfied: the portion of the work used, the nature of the derivative work, the potential loss of revenue, etc. (The legal burden of proof in these cases rests with the defense: copyright holders don’t have to prove that their rights were violated; potential violators have to prove they didn’t violate copyright.)

      That said, there’s enough established case law covering some kinds of fair use that most lawyers, unless a copyright holder is really insistent about it, won’t even pursue cases that look like they’re going to pass that test. This is why you pretty much never hear of a fanfic writer being sued unless he or she is stupid enough to try to sell the work or pass it off as something official, etc.

      Cases that are not obviously intended as parody, etc., however, are on much trickier legal ground, especially if there’s money involved. In those cases, the legal tests that come into play are more a matter of how close the derivative work is to the original, and whether the creator of that derivative work knowingly cribbed it. In the case you describe, I’m guessing a judge would consider that a violation of copyright, because it’s not just the basic bones of the plot and characters being built upon, but wholesale copying of scene and plot. (Though, it is kind of interesting how close The Hunger Games itself is to Battle Royale.)

      One other thing that often comes into play is whether a given derivative work borrows from one source or from many. Someone who’s obviously trying to copy the plot of Hunger Games is probably going to find themselves in legal trouble. But someone who took a few elements from that story, and a few from a dozen other stories, stripped all of them of their details and remolded them, and then made something out of the resulting mishmash? Probably safe. In the novel I just finished, for instance, there are elements of probably a dozen other works from which I drew inspiration, but because I stripped those things down to their component parts and then reassembled them into something else, they’re simply not the same thing anymore.

      One recent bit of news on this you might find interesting: Sony successfully sued CBS because they were building a TV pilot in which a girl hacker teamed up with a detective to solve crimes. Sony argued that that element alone was so similar to the key element of Dragon Tattoo that it was a clear attempt to capitalize on their IP. What’s annoying as hell about that is that there are probably a dozen different, currently-airing shows in which a brilliant-but-odd male lead rides roughshod over his team to solve episodic mysteries of some sort. And yet you don’t see the creators of House suing JJ Abrams for making Alcatraz.

      The reason for this is because that character–the brilliant-but-odd guy–is now so entrenched in the cultural zeitgeist as to be considered an archetype. Just like the magical orphan, the misunderstood villain, the quirky sidekick, the badass babe, etc., there have been so many different characters like this that tracing a given one back to a specific source is next to impossible.

      Female hackers, on the other hand, are still something incredibly rare (which sucks) so people are more likely to assume that any female hacker character has been derived from the most-recent, most-visible one. Nevermind that many other characters like this have existed over the years (see: Angelina Jolie in Hackers, for instance)–that this particular character came right on the heels of Lisbeth Salander makes any other character like her immediately suspect.

      I’m running into this problem myself right now. The other novel I wrote early last year stars a young, female warrior breaking out of her family’s traditions. I wrote the thing before I’d ever heard of Brave, but because that’s now out, everyone’s going to assume my lead character is just a copy of Merida. Meh.

      Again, pretty much nothing is going to save someone from getting sued if a given copyright holder is having a bad hair day. But there are things that artists can do to at least help themselves in court. Not making money from any work that contains copyrighted characters, settings or unusual plots is a good start. And when creating an original work, if you’re going to be inspired/borrow from something else, don’t just borrow from one thing, but from many, and remix them into something entirely new.

  2. jillsorenson says:

    Thanks for the response. I don’t write fanfic or mashups but I like to stay informed.

    I’ve also had the same experience you describe–writing something I think is Very Original, only to discover that another author beat me to the punch. One of my books features a wildlife biologist heroine and a mountain lion. It came out shortly after a Nora Roberts book with the same details. I was crushed!

    Anyway, I don’t know if surface similarities are anything to worry about. It happens so often in every creative field.

  3. Aja says:

    Wow. Actually, no, West Side Story is generally *not* thought of as “its own work,” it is thought of as an example of published fanfiction. Please see also this very long list of published examples of fanwork that belie the idea that fanfic is anything but the latest iteration in a centuries-old tradition of recursive creative work.

    • I think there’s a significant difference between fanworks as we know them in the modern age, and derivative works that are simply built on the structure of a previous one. Both are in the same general family, but I do think they’re distinct, and I think the key is intended audience.

      Fanworks are generally created by and for fans of an existing work, as a means of active participation in the enjoyment of that work. Fanfic readers, for instance, read those stories because they’re familiar with the characters and/or settings involved. Derivative works, on the other hand, may be enjoyed by people who don’t even know anything about the work that inspired them.

      In the case of West Side Story, while the basic plot and character archetypes are the same, there are significant differences between it and the work that inspired it. Tony and Maria, while similar characters to Romeo and Juliet, are their own people, and they’re dealing with somewhat different issues in a very different time and place. And then there are the song-and-dance numbers. ;) People can and do enjoy West Side Story on its own merits without even knowing what inspired it.

      On the other hand, Romeo and Juliet fanfiction would be a story that, say, goes deeper into Juliet’s relationship with her family, or explains more of the history of why the two families are at each others’ throats. Such a story would necessitate that one at least be familiar with the people and setting of the original story to really get much out of it.

      And it is that familiarity that draws people into reading and writing such stories. One of the key reasons many fanfic writers do what they do, rather than writing something with original characters and settings, is that there’s a built-in audience of fans of the original work who want to see more of what they already know and love. Getting people to read one’s original story about a young demigod would be quite difficult unless it got published and promoted. Getting people to read one’s story about Percy Jackson? Pretty much guaranteed. No-one’s reading fanfic because they want something unfamiliar. They read it because they want further adventures of the characters and/or world they already like.

      Now, this is not to say that there aren’t works that could be considered both fanfic and derivative. For instance, a story in which an original character has her own adventure that just happens to be set in a vaguely familiar universe could be considered both. A perfect example of this would be the zillions of fantasy stories, games, etc., that contain orcs or halflings– creatures Tolkien invented. However, I do think most works that are built on the bones of others do fall fairly cleanly on one side or the other.

      Generally speaking: if there’s no chance one’s going to get sued for using copyrighted characters, places or specific scenes, then it’s probably a derivative work. Anything that uses those copyrighted elements, on the other hand, would be fanfiction. (Another test: is this work going to get audience just by posting it in a fan community, or are you going to have to market it to a general audience? If the former, then it’s fanfic, not a derivative-but-otherwise-original work.)

      This isn’t, by the way, an indictment of fanworks. Goodness, no. I’ve created plenty of fanworks myself over the years, and I think the concept is great. I also think most creators these days understand that most fanworks are made as a means of active enjoyment in something they created, rather than as a way for the fanworks creator to ride on the coattails of someone else’s attention-getting efforts.

      Both fanworks and derivative works have their merits, in other words, but they’re not the same thing. Fanworks creators shouldn’t pretend they’re making something wholly new, for which they deserve attention and pay separate from the original work’s creator, but neither should we deny that there is a great deal of original effort going into assembling something only from the component molecules of an existing work.

  4. You wrote:
    “One recent bit of news on this you might find interesting: Sony successfully sued CBS because they were building a TV pilot in which a girl hacker teamed up with a detective to solve crimes. Sony argued that that element alone was so similar to the key element of Dragon Tattoo that it was a clear attempt to capitalize on their IP.”

    No, they didn’t sue. And there was no successful suit. Sony did threaten to sue CBS, and outside counsel suggested that CBS change the lead character’s occupation from hacker to something else, but CBS opted, of their own free will, not to pursue this specific pilot at this specific time. If you look at the article at http://www.deadline.com/2012/03/cbs-pilot-quean-not-going-forward-after-sony-threatens-legal-action-over-alledged-girl-with-the-dragon-tattoo-similarities/ you’ll see their discussion of how this has *never* happened before – in other words, “most new ideas are well forgotten old ones.” Look at what CBS is doing with Sherlock.
    It’s entirely possible that CBS chose not to move forward with the pilot because they didn’t want two shows being accused by critics of being derivative of current hits in the same fall season. Or it’s because they actively work with SONY in partnerships and other business relationships.
    It wasn’t because of a successful suit.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s