Welcome back to this series, where we’re examining the academic landscape around fanfiction and fan works.
Next up, one of the most mysterious, and ominous, aspects of fanfiction – is it actually legal?
JAQUELINE LIPTON: this is the, this is the really tricky question, because it because it’s not clear that. Well, it’s definitely not true that all fan fiction is fair use.
That’s Jacqueline Lipton, a legal scholar and professor at Duquesne University. She’s studied the intersection of fanfiction and law for years, and come up with some complicated answers.
JAQUELINE LIPTON: So we always had fan fiction going back into the 20th century, but a lot of it was in written zines that were emailed, that were mailed around in paper. So fan fiction has existed, I think, since the Star Trek, the original series in the sort of ’60s and ’70s, and with the internet, when people were able to really be interactive and generate their own content quickly, online and have an audience, that sort of changed the game, it doesn’t change the law.
In comes copyright law! It’s the specter that haunts a lot of fanfiction, so much so that many authors still put disclaimers in front of their stories in an attempt to ward off potential lawsuits. Others warn against binding and selling fanfiction, for fear that doing that “breaks” copyright law. I asked Lipton if that’s true.
JAQUELINE LIPTON: There is one line of thinking that, well, as long as you don’t commercialize your fan fiction, that’s fair use. That may be true. That’s not what the law says.
So what does the law say?
JAQUELINE LIPTON: The U.S. is, I don’t want to say unusual, different, unique in the sense of having this very, sort of, flexible Fair Use defense.
The US has copyright laws, but it also has a built-in loophole: the Fair Use defense. It requires the court to look at four factors: the purpose and character of the use, the amount and substantiality of the portion used, the impact of the use on the potential market of the work, and the nature of the work being copied. Depending on where the work falls and how the court might categorize it, a fanfiction’s use of copyrighted material could be defended, but we’re not sure.
JAQUELINE LIPTON: So when people have that view, the view that if it’s not commercial, it’s fair use. They’re really leaning into that first factor and and the fourth factor, because those are the two commercial factors. And they’re really saying, well, we’re not harming the market for the original. We may be increasing interest in the market for the original.
So maybe fanfiction has a chance? But with the way the American legal system works, we won’t know until somebody sues – and in the past, people have been reluctant to do that.
JAQUELINE LIPTON: the example I always give when I’m talking about this is 50 shades of gray, which started out as Twilight fanfic. There’s actually a couple of commercially successful series that started out as Twilight fan fiction, but that’s the biggest that’s the one that’s been the most successful. And, you know, Stephanie Meyer has been interviewed about this, you know – does she want to sue E.L. James? And she said no, you know.
Most authors are deterred by the high price tag of litigation. Also, most creatives see the danger in suing other people for their creative works; decisions create precedents, and any new restrictions on creative works could be bad for everyone involved.
JAQUELINE LIPTON: I mean copyright litigation is, is expensive and time-consuming, so you want to pick your battles, even if you are a, you know, a Disney or a Warner Bros. or a Penguin Random House. It – there’s, there’s a sort of a reputational element to it too, that if you have a bunch of fans of something you’re producing and then you go around suing them, you know, that doesn’t look great. So, so there’s a calculus there that maybe has very little to do with what the law actually is, and just more to do with market realities.
Ultimately, a lot of fanfiction writers are just shrugging their shoulders and continuing to write.
JAQUELINE LIPTON: A lot of writing communities I’ve talked to, because I talk to a lot of authors say, well, we’re very aware that fan fiction is not, in fact, fair use. But you know, unless we get sued for it, what’s the what’s the risk?
JAQUELINE LIPTON: I think the advantage of the American system is you do get the uncertainty gives you the opportunity to say, Well, look, this is probably a fair use. And are you really going to make a big deal about this?
In fact, fanfiction isn’t the only thing copyright law runs up against. Some authors don’t even own their own copyright.
JAQUELINE LIPTON: I mean, in fact, there’s an interesting example. I’ll probably get the details wrong, but “The Vampire Diaries.” And I’ve forgotten the author’s name, but my understanding is that the original series was work for hire. The original series, the publisher dictated the plot, and the writer later created her own version, sort of telling the story the way she wanted it to be told.
Lipton says this comes out of the legal difference between authorship and ownership – ownership is legal, and authorship is creative. Even in the world of literature, authorship – and how much it should matter – is hotly contested.
Northwestern student Asha Mehta weighed in on the ways fanfiction can reclaim a work from its author by writing it in a different way.
ASHA MEHTA: I’m a believer that once art is published, it’s, like, beyond the writer, now beyond the artist. And I think that it’s sort of a way of reclaiming this thing that brought so many people so much joy their entire childhood, and really molding it into something that can continue to bring joy and be, I don’t know, less problematic.
Lipton told a story that exemplified this:
JAQUELINE LIPTON: There’s some really interesting “Gone with the Wind” fan fiction, which, you know, is fascinating to me because the Margaret Mitchell estate is so proprietal about it, and yet there’s a lot of non commercial, really, you know, alternate love stories between the two leads and all sorts of other stuff. And I thought, well, you know, these are works that sort of get a new life, like even that copyright infringement suit probably brought new life to. That book. Because then people probably thought, wow, I could write my, my version of of this.
DePaul fan studies professor Samantha agrees – she described the proliferation of fan works that can result from a single text.
SAMANTHA CLOSE: And I think that we need to start valuing that universe of possibilities more than we value the one original seed, because the one original seed is protected by copyright, and that somehow digs its claws into everything else and makes it unable to be protected in the same way.
In fact, a lot of writers appreciate fanfiction; not in the least because many of them got their start writing fan works — Ali Hazelwood, Cassandra Clare and Marissa Meyer are just three examples of popular writers who used to write fic.
Lipton: A lot of writers take the view that fan fiction is a really great way to sort of cut your teeth when you’re learning to write, because you don’t have to kind of develop everything from scratch. If you already have a character or a setting and you want to just play with a certain element of craft without having to develop the whole thing. It’s a good sort of, you know, like artists copy the Masters visual artists before they do their own original work.
At least one writer has even encouraged fan works based on their writing.
JAQUELINE LIPTON: Hugh Howey, who wrote “Wool,” which is now the “Silo” TV series, but he was one of Amazon’s first self-publishing successes in the early aughts. And because he started out writing short stories, and then they kind of turned into novels, and they turned into miniseries – he always encouraged other people, you know, because his setting is so unique. Like, there’s, you know, people living in these silos after the nuclear apocalypse, and there’s a bunch of different silos, and there’s a bunch of, you know, there’s hundreds or thousands of people in each silo. So there’s a million stories you could tell about any one silo and any one group of people. And he just encouraged his fans to write those stories and to sell them for a dollar or two on, on Kindle.
So should fan fiction be allowed to live and let live? Or should writers still be cautious about their work? Lipton thinks that ultimately, there’s a balance.
JAQUELINE LIPTON: You know, from the point of view of the fan fiction creator or even the fan fiction reader, I, you know, I do think it’s important. I think all forms of creative expression are important. That’s why we have, you know, a publishing industry and an industry that was then revolutionized by the digital revolution, because more people than ever can express themselves and find you know, their audience, their readers, even if it’s just a small group of readers. … But I also think it’s important that we abide by a system of laws. And I, you know, I think the the advantage of the US system, although it creates great uncertainty that we never know if a given work is infringing or not, but the advantage is that it doesn’t sort of chill expression until there’s a problem.
You heard it here first — it looks like fanfiction writers are free to write what they want – for now, at least.
For WNUR News, I’m Mika Ellison.
