This essay is ©opyrighted to Dawne L. Monigle as of October 31, 2002.  DO NOT redistribute without permission!

Fanfiction is Our Copy “Right”

Fanfiction, or “fanfic” in Net shorthand, is using someone else’s characters and settings and creating a new story around them. Most people have been exposed to fanfiction in some form or another. Books that are based on a popular TV series or movie are fanfiction in its broadest sense. The author does not hold the copyright on those characters, but has been given permission by the holder to change their entire story line, so it no longer resembles the original, and it is published as a derivative work. Fanfiction should be considered a form of derivative work, and therefore, not a violation of copyright laws. 

Author A writes a story. According to copyright law, that story is copyrighted to them the moment it is recorded in a tangible form. Suppose someone else, Author B, comes along, takes Author A’s characters, and writes another story about them. Could Author A sue Author B for copyright infringement? Those arguing against fanfiction say they not only can, but should. They feel that “if copyright is like property in land, infringement is like moving onto someone’s land without permission, chopping down trees, mining coal, and stealing water from the well” (Strong 105).These people are, in effect, stealing.

A derivative work is one that has been altered or transformed in such a way that it is not identical to the original.  Typically, the copyright holder has the right to approve or reject usage of their characters and settings. Opponents of fanfiction point out that, “permission must be obtained from the copyright owner of a preexisting work before a derivative work can be properly made and protected” (Albert, 224). This isn’t likely to happen, since Author B is not a screenwriter commissioned to write a treatment. The average fanfic author is typically an avid follower of their chosen subject. They identify strongly with it, which leads them to believe they can write a screenplay just as well as the professional writers, tailoring the story to suit what they think should have happened.

Sue Hazlett, of the University of Alaska, quotes author Harry Jenkins as saying that the “…fan’s response typically involves not simply fascination or adoration...but also frustration and antagonism...fans cannot dismiss them from their attention but rather must try to find ways to salvage them for their interests” (Hazlett). If a fan feels there is something missing or left unsaid, they take it upon themselves to say it, even if it means making the characters undergo a complete personality change. Defamation of character is what fanfiction’s critics are claiming happens when an author takes an already established character into their own hands and makes them do things they aren’t normally known to do. Fanfic’s critics claim that the Author B’s of the Net world have no regard for any of the copyright laws.

What they have neglected to take into account is an overlooked section of copyright law called the Fair Use Doctrine (Lee). Fair use “allows you to make limited use of a copyrighted work without an author’s permission” (Lee). Only using an excerpt of the work and acknowledging the source without damaging the commercial value of the original can qualify as Fair Use. Authors invoke the Fair Use Doctrine when the subject of lawsuits comes up. However, if Author A’s copywritten material is a well-known trademark (Buffy, X-Files, Star Wars, Harry Potter, etc), they probably won’t sue. Author B and others like them don’t usually make any money, and their numbers are increasing. Hazlett explains: “The movement is too big to tackle in an effective manner, and, since there is no financial gain, i.e., percentage of the profits, to sue for, the expenditure and effort is not worthwhile.” Unless the fanfic compromises the integrity of the character, Author A won’t sue. These fanfics “are likely only to have a marginal effect o the revenue of the copyright owners...” (Albert, 288). Plus, “copyright owners are understandably reluctant to sue those persons who are clearly their best customers” (Albert, 288). Before these people were fanfiction authors, they were fans first.

Author B is not a thief. While fanfic supporters do acknowledge that “The copyright owner has the right to...any potential market for derivative works...” they note that “if it is unlikely that the owner…would exploit that market, it would be fair use for other persons to do so.” They’re not trying to stir up trouble for Author A. They just admire their chosen subject, and want it to continue on. They often “have a creative desire to participate in the mythology of their culture.”(Ballard). In some cases, they may feel that there are loose ends they’d like to tie up. “The most common comment among fanfiction writers is that they are ‘filling in the gaps’ left by the show’s producers” (Hazlett).

Certain types of fanfiction called “lay” or “slash” fanfics. which feature characters in either heterosexual or homosexual situations, have often been branded as defamation of character. It should be stated, however, that this is not representative of fanfiction as a whole. Treating all fanfic as such is unfair. A majority of fanfic writers would consider it sacrilege to depict their characters in a completely uncharacteristic way.

In addition, many well-known, paid screenwriters have gotten their start by writing fanfiction. They are often “teams that are hired after submitting sample scripts...just the type of efforts produced by fanfic writers” (Hudson). Their “illegal” fanfics led to “legal” writing opportunities. One example of a success story, according to Robbie Hudson’s article for the Sunday Times, is senior writer for Buffy the Vampire Slayer, Jane Espenson. Espenson was quoted as saying, “Fanfiction helps writers to learn how to master the voices of the characters, which is one of the most important things in writing for television. I actively encourage it” (Hudson). She allegedly began by writing Star Trek fanfiction and was able to parlay it into a career.

Fanfiction does no more harm to a story than Saturday Night Live would do to it. Its opposition seems to have forgotten the phrase, “Imitation is the sincerest form of flattery”. If legally accepted as derivative works, fanfiction will give fans a chance to take their beloved stories into their own hands and possibly unearth some future screenwriters.

Works Cited

Albert, G. Peter. Intellectual Property Law in Cyberspace. Washington, D.C.: Bureau of National Affairs, 1999 pp224, 288-289

Ballard, Allison. “The Strange World of Fan Fiction; Not happy with the plot lines of your favorite TV show? No problem. Hop on the Internet and make your own.” Morning Star Wilmington, N.C. 15 July, 2002

Hazlett, Sue. “Filling in the Gaps: Fans and fan fiction on the Internet” 2000 Unpublished Manuscript, U of Alaska Fairbanks

Hudson, Robbie. “When Hamlet Met the A-Team.” The Sunday Times 4 August, 2002

Lee, A.T. “Copyright 101: A brief introduction to copyright for fan fiction writers”. Whoosh Issue 25, October, 1998. 30 September 02 http://www/whoosh.org/issue25/leela.html (link no longer active)

Strong, William S. The Copyright Book. Cambridge, MA: Massachusetts Institute of Technology, 1981. p 105