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.