Illegal, immoral, and fattening: in defense of fan fiction

[bodlon]

(Caveats: #1. I am not a lawyer. #2. This post could only be more US-centric if I stapled a bunch of flags to it. Reader beware.)

Every so often, a published author will make a statement about fan fiction. Those who are critical of the form and wish it would go away like to declare that it’s a form of copyright infringement, and thus illegal. Advocates, meanwhile, attempt to demonstrate that fan fiction falls under fair use, and is thus perfectly legal.

Technically, both sides are wrong.

Except in cases where fair use can be proved (e.g. obvious satire, obvious critical or educational use, etc.), most fan fiction falls under the umbrella of derivative works. Whether one is free and clear in terms of derivative work mostly seems to revolve around whether the original work is in the public domain or not.

In general, if a work is in the public domain, it’s fair game. If a work is still protected by an active copyright, the copyright holder can choose whether to challenge the legality a derivative work.

Say I write a book about a gang of renegade conservationists fighting a tribe of feral were-stoats in New Zealand. It’s amazing, and sells a bajillion copies.

(Hush. A guy can dream.)

One of those bajillion copies goes to a kid in Waukegan, who thinks my second in command — a ginger fellow named Bill whose hobbies include pinata-making and target shooting — is just about the coolest character ever, and really identifies with him, and so starts writing his own stories about Ginger Bill the Feral Were-Stoat Hunter. He posts them under a pen name on the Internet so that he can share them.

As the law stands in the US currently, as the copyright holder*, it’s up to me whether or not I object to the fiction my fanboy in Waukegan is posting. I’m within my rights to issue a cease and desist or try to sue the pants off him if I want. I can also tilt my head to the side and say, “N’aww, fanboys!” about him and his friends. Alternately, I can just shrug and move on and write the sequel. I’ve got bills to pay, and I like to write, and my Waukegan fanboy probably wishes I’d hurry up so he and all his friends can go out and buy it.

In my view, there are some compelling reasons why authors and publishers should take a positive view of (or at least turn a blind eye to) the propagation of non-commercial transformative works:

Telling stories about stories we like is human nature.
Human beings, when they encounter stories that move them, typically respond with more stories. That doesn’t necessarily mean that everyone who loves a certain film is going to write fan fiction, but I think all of us can think of a time when “wouldn’t be cool if [Character A] met [Character B] and…” came up in conversation, or maybe a time when we compared an experience we had to something in a book or television show, etc.

Most authors will, if asked, even be able to name some of the stories that inspired them to write. Even writers like Diana Gabaldon, who recently came out pretty firmly against fan fiction, might admit that characters they write were inspired by other characters. (Gabaldon’s own Jamie Frasier is based in part on Jamie McCrimmon from Doctor Who.)

There’s a natural range of expression, and fanwork falls within it.

Fanwork helps build and maintain a loyal readership/community of fans.

A group of fans excited enough about a story to gather together and tell their own stories is already deeply invested in canon works. They want to know more, and they want to be able to hold it in their hands. They’re enthusiasts, collectors, and completists. Fan communities tend to incentivize the collection of canon and related spin-off media (character guides, novelizations, magazine specials, etc). Fans who write buy stuff, and encourage others to buy stuff.

Fans who gather to discuss and share are also feeding each others’ enthusiasm. Participating in the fan community keeps the canonical work in sight and mind, and playing with what-ifs can keep that material fresh and interesting in between installments.

It promotes creativity and personal growth.
A solid proportion of jobbing creatives doing original work today grew up as fans. Not all of them wrote fan fiction, but many did, and some still do. Looking at the list of names I’ve seen associated with fanwork, I’m inclined to disagree with George R.R. Martin’s assertion that it’s “bad practice” to write in somebody else’s sandbox.

Also, fan communities encourage people who might otherwise never be moved to lift a pen to give it a try. It’s an outlet for members of non-storytelling classes to entertain one another and engage in creative pursuits casually — which, prior to the advent of mass media, was a common element of human culture.

Fan fiction is campfire stories and drunken nights around the piano, and it gets people interested in reading and writing. That’s a social good.

Legal challenges against non-commercial fanwork constitutes a disproportionate response.
The average fan fiction writer is not a threat to your career or your intellectual property. A fanwriter is unlikely to be mistaken for ‘canon’ or your own work — in fact, most are careful to apply disclaimers — non-commercial derivative works take no money from your pocket. Nor do they constitute a threat to your shelf space. They’re not pirates, and they’re not distributing your actual work without permission.

Fan texts might be weird, get the details wrong, or squick you something awful (Rule #34 has a terrible power), or fill you with a strange sense of losing control of something near to you if you engage them too closely, but you’re not actually losing anything material by allowing fans to share their own stories about your work.

If you do have strong feelings, you can make like Anne McCaffery) and lay out some ground rules. (Hint: the wider the field you leave for your fans, the more likely they are to support your directives, self-enforce within their communities, and think well of you.)

And really, what are you doing reading your fans’ fic, anyway? Aren’t you supposed to be working on the next book? WERE-STOATS, PEOPLE! Get your priorities in order.

Ginger Bill is waiting.

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* This depends on my contract. It’s entirely possible that my publisher could hold the applicable rights.

This post has been mirrored from Christian A. Young's Dimlight Archive. To see it in its original format, visit dimlightarchive.com