Fanfic & Fair Use....

Can Fanfic be considered anything other than a derivative work? Can fair use apply? Current copyright law does allow for criticism in the form of parodies. If we read back into Fanfic the social commentary aspect that I asked you to forget about in the previous entry, then can an argument be made that at its core Fanfic is a lawful act of creation and not subject to copyright infringement litigation?

The courts aren’t entirely clear on this issue and, like many copyright cases, are strictly on a case by case basis. As Henry Jenkins points out, “one paradoxical result [of current copyright law] is that works that are hostile to the original creators and thus can be read more explicitly as making critiques of the source material may have greater freedom from copyright enforcement than works that embrace the ideas behind the original work and simply seek to extend them in new directions.” Although I enjoy Jenkins assertion, I’m not entirely sure how successful the comment and criticism argument will hold up in court. As Stanford’s Copyright and Fair Use Overview points out, criticism includes quoting a few lines, summarizing, copying a few paragraphs or a portion for analysis or review. When I view criticism in this light, I’m not entirely sure that a defense would hold up to much scrutiny. What about the four factors of fair use? Let’s not forget about parody, but that deserves its own separate post…more on parodies later.

• Purpose
• Nature
• Amount
• Effect

PURPOSE:
Stanford’s resource asks the following questions for purpose that I think are helpful in this case:
1) Has the material you have taken from the original work been transformed by adding new expression or meaning?

2) Was value added to the original by creating new information, new aesthetics, new insights and understandings?
Again, Jenkins sheds some important light on this subject when he states:
Fan stories are in no simple sense just "extensions" or "continuations" or "extra episodes" of the original series. Unlike the model critical essays discussed by the various university writing centers, the insights about the work get expressed not through nonfictional argumentation but rather through the construction of new stories. Just as a literary essay uses text to respond to text, fan fiction uses fiction to respond to fiction. That said, it is not hard to find all kinds of argumentation about interpretation woven through most fan produced stories.
If we take this view Fanfic then we can easily respond “yes” to both questions. That’s not to say that there is not Fanfic out there that merely takes the characters and puts them in a different romantic situation (Jenkins).

NATURE:
Factor 2 is a little more problematic, since creative works tend to be on the wrong side of fair use; however, it is entirely possible that an argument can be made in favor of fair use, especially if it is a published work. However, in the area of Fanfic, I believe “nature” would likely receive a low rating and therefore not in support of fair use.

AMOUNT:
As I mentioned earlier, amount is a nebulous subject. For derivative works, no hard and fast rule is available to aid judgments. Furthermore, the concept “amount” is not just about numbers, but the core essence of a work. This lack of differentiation makes assessing “amount” extremely difficult, and I imagine no easier for Fanfic investigations.

EFFECT:
Here we are talking effect on the marketplace. I think this is where the strongest argument in support of Fanfic arises. If anything Fanfic can aid the market for the original authors, and I doubt that any Fanfic story actually reduced an author/publisher’s market share. In recent years, more authors have supported Fanfic for this very same reason. Those authors who continue to discourage or prohibit Fanfic stories based on their material focus less on the economics and more on the moral rights aspect of their creation. Moral rights, however, hold little power in the United States, and are far more popular in Europe. I would be interested to find out reactions from European authors/publishers regarding Fanfic.
Based solely on these four factors, we can see that copyright assessment is an incredibly complex and murky area…and parodies make it even more complicated.
Parodies are next….

The deriving derivative

The copyright law sections most often used in cease and desist orders, litigation, and even social pressures are sections 103, Subject matter of copyright: compilations and derivative works, and 106, Exclusive rights in copyrighted works. Authors and publishers claim that Fanfic stories are indeed derivative works of because they often play with the original characters and settings. Section 103 of the copyright law sets out what is actually copyrighted in the derivative work and section 106(2) states that the owner of copyright has the exclusive right to prepare derivative works based upon the copyrighted work. Not surprisingly, the copyright law is not very specific as to what constitutes a derivative work. In fact, Russell states that current law provides no standard metrics to determine a percentage of the original work (96). It would seem to me however that a lot of what is produced in Fanfic circles would be considered derivative works because they most often retain key character traits and other hallmarks of the original work. Although not part of this research blog, Fanfic may also be seen as infringing on trademark law as well.

Just this June, J.D. Salinger went to court to stop a novel from being published that has as its central character, a 60-year old Holden Caulfield. This new novel is written by a person going by the name of J.D. California. CNN posted an excerpt from the court documents on its webpage clearly stating that Salinger considered his copyright rights violated, “both his novel and the character Holden Caulfield.”
What I find most interesting about this case is its inclusion of a comment Salinger made in 1980 to fans regarding interest in more books about Caulfield:
"There's no more to Holden Caulfield. Read the book again. It's all there…Holden Caulfield is only a frozen moment in time."

I think this quote really hits on the underlying tensions between original authors and fan fiction authors that may go beyond purely economic interests and into philosophical and creative beliefs. I can only imagine the intense, deep, and personal connection an author may develop for one of their characters over time, and then to see the character changed/morphed into something that is not part of your creation or vision could be incredibly painful. I can only liken it to a parent whose child is kidnapped to be raised by someone else but you know where he/she is now living and can watch from the outside. However, Fanfic authors see their creation as celebration (especially if we think of Fanfic outside of its social criticism component of course) and see it as one fan’s desire to extend, play with, or reinvent his/her favorite story and characters as a way to have more and share more with other fans.

The Purposeful Lens

Although Fanfic is a way to celebrate favorite works by offering new experiences, settings, characters, it is ultimately a critique about ownership. Henry Jenkins posits that fanfic is also a critical commentary on the original text. Both of these lenses provide a largely positive frame from which to evaluate fanfic. However, there are others who view the phenomena of fanfic as “intellectual laziness” and an infringement of the original author's intellectual property.

In the coming weeks, I want to explore this contested space in order to tease out the issues of ownership, critical commentary, acts of borrowing/stealing/remixing within a participatory culture and to situate within the larger discourse of intellectual property. Is fanfic becoming more or less of a contested space in the later half of the decade? How has the internet impacted this genre? Are certain fanfic writers given more license and are less likely to be censured? If so, who and why? How is IP infringement conceptualized? What is the impact of fanfic on the market? What about on an author's moral right to their work? What are the future directions of fanfic?

Roots and Parallels

Henry Jenkins, a professor from MIT, has written extensively on fan fiction since the early 1990s, and finds many parallels between fanfic and oral traditions, such as folktales. I find this comparison to be particularly useful in conceptualizing both the nature of fanfic, as well as the differences between oral and textual cultures. As I write, I'm reminded of a book I recently read by Neil Gaiman, titled Anansi Boys, a story about Gods, trickster spiders, embittered lions, and the quotidian mask that overlays the extraordinary. One of the central tropes is how the trickster spider stole, or rather outwitted, the lion from his place as master storyteller and forever changed how others understood the world around them. In many ways, authors of fanfic are the trickster spider creating an entirely new capacity for understanding and interpretation but, unlike the lion's stories, the original author's text remains intact and runs parallel, or perhaps sometimes perpendicular to the work of fanfic.

A brief introduction

I came to be aware of the phenomena of fan fiction through a twitter post within the last year. It seems I've been out of a major loop. Fan fiction, also known as Fanfic or FF is the act of taking characters and/or settings from published books, movies, and TV and creating new works. These works tend to be published on the internet and are often read by fans of the original work. According to Wikipedia, however, the term fan fiction originated within the science fiction community to describe amateur but completely original works written in the science fiction genre.

Fan fiction has gained in popularity in the last 3 or 4 years, largely as a result of enthusiastic Harry Potter fans, but there are many, many fanfic stories available on the internet. Don't want your favorite story to end? Don't like the author's treatment of your favorite character? Have a great idea that would make the story better, or just different? If so, begin your own Fanfic story.

Some folks are probably thinking back to their high school literary magazine and the many, absolutely talentless poems and short stories held captive between the covers, and to some extent you may be right. I'm sure there are a lot of poorly written and conceptualized fanfic stories floating on the interweb, but there are a number of really great Fanfic stories too. Some of these authors have their own fanbase now who are writing Fanfic based on their Fanfic stories.

A very popular example of Fanfic (although I never thought it as such until this project) is Tom Stoppard's “Rosencrantz and Guildenstern Are Dead.” Stoppard took two minor characters from Shakespeare's “Hamlet” and made them the focus of his new work with knee-slapping results. There have been countless reworkings of Rowling's Harry Potter series, Meyer's Twilight series, and many sci-fi stories. Interested in reading some Fanfic yourself, be sure to visit fanfiction.net, harrypotterfanfiction.com, trekfanfiction.net, or fictionalley.org.

A departure point

In terms of the cannon of literature, fan fiction truly can't be included within the authors works, nor can it be looked at as another version of the same. The cannon is unchanged by fan fiction, but it isn't unaffected. - Diana Geleske from http://blogs.setonhill.edu/DianaGeleskie/020732.html.