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.