Fan Fiction. Wikipedia, http://en.wikipedia.org/wiki/Fan_fiction, accessed on July 4, 2009.
Fanfiction.net
Fanfiction.net Terms of Use
Fanfiction.net Guidelines
Fictionalley.org
Fictionalley.org Terms of Use
Harrypotterfanfiction.com
Harrypotterfanfiction.com Site Rules
US Copyright Law, Chapter 1
Although I did not have time to use Hellekson and Busse's bibliography, I thought I would post it here for reference.
Monday, July 20, 2009
Saturday, July 18, 2009
What does all this mean?
In this blog, I attempted to provide an introduction and a brief history of the phenomenon of fan fiction, explore the associated copyright implications, identify arguments in favor of fan fiction, and point out a few notable legal cases involving fan fiction.
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. Fan fiction is largely centered around communal fan practices that celebrate and rework stories to be shared and enjoyed amongst fans. Although fan fiction was originally disseminated in zines and other homegrown paper technologies, it is now mainly published on the internet and accounts for its growing popularity and wider distribution circles. Fan fiction is this interesting space that gives the everyday reader a space to explore, celebrate, play with, appropriate, negotiate, and provide social commentary through the use of published texts. An offshoot of fan fiction not discussed in this presentation is slash fiction, a genre that focuses on the queering of characters that were constructed as heterosexual in the original texts.
Fanfic’s most recent history stems from the science fiction community in the 1960s; however, the act of taking stories and making them one’s own has a much longer history in oral traditions, specifically folktales (Jenkins). In oral traditions, the storyteller is rewarded for adding his/her own embellishments to a story, but this is not necessarily the case with fan fiction. Currently, fan fiction is considered by many, especially authors and publishers, as a derivative work. Derivative works are clearly the right of the original author as set out in (US Copyright Law, Sections 103 and 106). So why are there so many fanfic authors writing and publishing on the internet? Why aren’t these authors being prosecuted for copyright infringement?
As Litman and others have pointed out, fanfic is good for an author/publisher’s bottom line. This genre of writing tends to create and/or sustain interest in the original author’s work, thereby securing continued profits (Litman 179, Young 15). Litman suggests that the reason many fanfic authors continue to find a venue for their work without prosecution is through the concept of “implied license” (Litman 178). Because of the positive effects on the market, fanfic writers are being granted an implied license to use the original work. Still, there are writers who prohibit use of their work in fan fiction and believe fanfic is nothing more than intellectual laziness (Young 14).
In defense of fan fiction, academics have proffered several interesting defenses for the right of fan fiction writers to use copyrighted works without threat of legal action; each moving beyond a grant of rights that originates with the original author/publisher. Some of these arguments include: fair use, critical commentary, reading as creative act (Jenkins, Litman 177). It is these mappings that Jenkins and Litman offer that I find so provocative and interesting, but I wonder how much of this is actually going on in reality and not just in the minds of academics.
My research has shown me that given the current dissemination strategies of fan fiction, the sheer number of fanfic writers, and the fact that many original authors/publishers are profiting from its creation, fanfic will continue to flourish with limited legal consequences. However, if its popularity continues to rise and if more fanfic authors end up profiting themselves from their writing, through publishing contracts of their own, then I can easily see the revocation of implied license. Because even though the theoretical approaches to fan fiction are alluring, I find Litman’s explanation of implied license to be the most logical rationale for the lack of legal reproach for fanfic writers and the sites that host these stories. Stemming from this line of thought, I was left with three remaining questions:
• Is fanfic becoming more or less of a contested space in the latter half of the decade?
• Are certain fanfic writers given more license and are less likely to be censured? If so, who and why?
• What are the future directions of fanfic?
Works Referenced
Jenkins, Henry. “Fan Fiction as Critical Commentary.” Confessions of an Aca-Fan: The Official Weblog of Henry Jenkins,” http://www.henryjenkins.org/2006/09/fan_fiction_as_critical_commen.html (2006).
Litman, Jessica. “Creative Reading.” Law and Contemporary Problems 70, no. 175 (2007): 175-183.
Young, Cathy. "The Fan Fiction Phenomena." Reason 38, no. 9(2007): 14-15.
More resources forthcoming….
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. Fan fiction is largely centered around communal fan practices that celebrate and rework stories to be shared and enjoyed amongst fans. Although fan fiction was originally disseminated in zines and other homegrown paper technologies, it is now mainly published on the internet and accounts for its growing popularity and wider distribution circles. Fan fiction is this interesting space that gives the everyday reader a space to explore, celebrate, play with, appropriate, negotiate, and provide social commentary through the use of published texts. An offshoot of fan fiction not discussed in this presentation is slash fiction, a genre that focuses on the queering of characters that were constructed as heterosexual in the original texts.
Fanfic’s most recent history stems from the science fiction community in the 1960s; however, the act of taking stories and making them one’s own has a much longer history in oral traditions, specifically folktales (Jenkins). In oral traditions, the storyteller is rewarded for adding his/her own embellishments to a story, but this is not necessarily the case with fan fiction. Currently, fan fiction is considered by many, especially authors and publishers, as a derivative work. Derivative works are clearly the right of the original author as set out in (US Copyright Law, Sections 103 and 106). So why are there so many fanfic authors writing and publishing on the internet? Why aren’t these authors being prosecuted for copyright infringement?
As Litman and others have pointed out, fanfic is good for an author/publisher’s bottom line. This genre of writing tends to create and/or sustain interest in the original author’s work, thereby securing continued profits (Litman 179, Young 15). Litman suggests that the reason many fanfic authors continue to find a venue for their work without prosecution is through the concept of “implied license” (Litman 178). Because of the positive effects on the market, fanfic writers are being granted an implied license to use the original work. Still, there are writers who prohibit use of their work in fan fiction and believe fanfic is nothing more than intellectual laziness (Young 14).
In defense of fan fiction, academics have proffered several interesting defenses for the right of fan fiction writers to use copyrighted works without threat of legal action; each moving beyond a grant of rights that originates with the original author/publisher. Some of these arguments include: fair use, critical commentary, reading as creative act (Jenkins, Litman 177). It is these mappings that Jenkins and Litman offer that I find so provocative and interesting, but I wonder how much of this is actually going on in reality and not just in the minds of academics.
My research has shown me that given the current dissemination strategies of fan fiction, the sheer number of fanfic writers, and the fact that many original authors/publishers are profiting from its creation, fanfic will continue to flourish with limited legal consequences. However, if its popularity continues to rise and if more fanfic authors end up profiting themselves from their writing, through publishing contracts of their own, then I can easily see the revocation of implied license. Because even though the theoretical approaches to fan fiction are alluring, I find Litman’s explanation of implied license to be the most logical rationale for the lack of legal reproach for fanfic writers and the sites that host these stories. Stemming from this line of thought, I was left with three remaining questions:
• Is fanfic becoming more or less of a contested space in the latter half of the decade?
• Are certain fanfic writers given more license and are less likely to be censured? If so, who and why?
• What are the future directions of fanfic?
Works Referenced
Jenkins, Henry. “Fan Fiction as Critical Commentary.” Confessions of an Aca-Fan: The Official Weblog of Henry Jenkins,” http://www.henryjenkins.org/2006/09/fan_fiction_as_critical_commen.html (2006).
Litman, Jessica. “Creative Reading.” Law and Contemporary Problems 70, no. 175 (2007): 175-183.
Young, Cathy. "The Fan Fiction Phenomena." Reason 38, no. 9(2007): 14-15.
More resources forthcoming….
Tuesday, July 7, 2009
So what's it going to take?
Well, I thought I would take a look at parodies, but then I found an article by Jessica Litman on the right of fan creations, titled "Creative Reading." Litman provides several thoughtful insights into the issue of copyright and fan creations, but I found myself wanting more exposition. At the outset Litman points out that fan fiction has been responsible for adding commercial and renewed value to existing works, like Star Trek and Star Wars. As I suggested in my previous post, criterion 4 of fair use is surely satisfied here (note: “effect on the marketplace” is often weighted heavier than the other criteria). Last Sunday I analyzed the argument of fair use for fan fiction and suggested that fair use might not be up to the task of supporting fan fiction works. Litman also questions whether fair use is sufficient to support the activities of fan creations since “in its current form, it cannot possibly answer the legitimate claims of readers, listeners, and viewers of other sorts. Fair use is much too busy protecting “The Wind Done Gone” and trying to figure out what to do with Google Book Search to be able to support the copyright interests of millions of everyday readers, listeners, and viewers” (177).
What are we to make of Litman’s statement? What exactly is she saying about fair use? Firstly, it’s a numbers game – and it seems the courts have more important and noteworthy cases to conser than taking up the case of fanfic authors as a whole, but that doesn’t mean that the copyright issues are resolved. Secondly, unprecedented copyright expansion in the last few decades has significantly eroded people’s perceptions of their rights (180). She identifies the conclusive language of section 106 of the Copyright Law that pretty much sets out to prohibit any use outside of the home, which we assume means personal use – but the advent of the internet and other digital technologies has complicated our understandings of “personal use.”
So if fair use isn’t the most appropriate limitation on exclusive rights, is there any other right of use that supports the creation of fan fiction without falling into a legal quagmire? Litman suggests that in this time of unprecedented copyright expansion, the argument regularly employed in relation to fandom is that of “implied license” (178). This implicit grant of rights is what Litman calls “fannish norms” (178), and is most often granted because of its positive effect on the industries’ bottom line. Unlike a licensing agreement that sets out the specific terms of the agreement between the specified parties, there is no formal contract with the implied license and any terms of use would need to be made publicly and openly. For example, fanfiction.net provides a list of authors who have asked that their works not be the subject of any fan fiction, but they could very well include particular terms of use instead of completely prohibiting its use. The list of writers that do not allow fan fiction includes:
• Anne Rice
• Archie comics
• Dennis L. McKiernan
• Irene Radford
• J.R. Ward
• Laurell K. Hamilton
• Nora Roberts/J.D. Robb
• P.N. Elrod
• Raymond Feist
• Robin Hobb
• Robin McKinley
• Terry Goodkind
However for Litman, “implied license” is also an insufficient mechanism to secure rights for fan creators. Litman questions the copyright owner-centric focus of current practice, and suggests that readers, listeners, and viewers should take a less peripheral position in the copyRIGHT story (177, 179). In support of this position, she points out that fans often contribute to the original work created by an author; however, she notes that these contributions are difficult if impossible to quantify. Unfortunately, Litman doesn’t offer much evidence in support of this assertion, but it is provocative and interesting to consider. What Litman accomplishes here is that she effectively brings into focus the interplay between author and the world around them – no one creates in a vacuum, and even though often a solitary act – creation is inevitably a social process that is predicated on interaction.
Furthermore, she cites that reading is itself a creative act and is, in large part, a requirement of the reader when interacting with a text. She believes this process or relationship is given short shrift in copyright negotiation, as well as in the scholarly literature (180). She acknowledges that there does need to be limits on right of use, but that our current arguments do not consider the reader, viewer, and listener. She argues that current arguments for user rights, e.g., big law is bad law or copyright is about balance, have not been effective (182). Instead of relying on these tired arguments, she suggests we need to rethink how we conceptualize copyright law and to consider a larger perspective on creativity and creation. This is clearly evidenced in her conclusion when she states, “the Progress of Science and the integrity of copyright law are likely to be furthered by encouraging readers, listeners, and viewers to experience works with imagination and creativity” (183).
Litman’s article identifies and assesses key legal issues and considerations surrounding the creation of fan fiction. She provides an articulate and provocative argument in favor of more robust user rights, while at the same time protecting copyright holders. She acknowledges that as technology continues to evolve and create and support expectations for user participation, interaction, dissemination, we would be wise to rely less on codified and stringent laws and more on mutual respect.
What are we to make of Litman’s statement? What exactly is she saying about fair use? Firstly, it’s a numbers game – and it seems the courts have more important and noteworthy cases to conser than taking up the case of fanfic authors as a whole, but that doesn’t mean that the copyright issues are resolved. Secondly, unprecedented copyright expansion in the last few decades has significantly eroded people’s perceptions of their rights (180). She identifies the conclusive language of section 106 of the Copyright Law that pretty much sets out to prohibit any use outside of the home, which we assume means personal use – but the advent of the internet and other digital technologies has complicated our understandings of “personal use.”
So if fair use isn’t the most appropriate limitation on exclusive rights, is there any other right of use that supports the creation of fan fiction without falling into a legal quagmire? Litman suggests that in this time of unprecedented copyright expansion, the argument regularly employed in relation to fandom is that of “implied license” (178). This implicit grant of rights is what Litman calls “fannish norms” (178), and is most often granted because of its positive effect on the industries’ bottom line. Unlike a licensing agreement that sets out the specific terms of the agreement between the specified parties, there is no formal contract with the implied license and any terms of use would need to be made publicly and openly. For example, fanfiction.net provides a list of authors who have asked that their works not be the subject of any fan fiction, but they could very well include particular terms of use instead of completely prohibiting its use. The list of writers that do not allow fan fiction includes:
• Anne Rice
• Archie comics
• Dennis L. McKiernan
• Irene Radford
• J.R. Ward
• Laurell K. Hamilton
• Nora Roberts/J.D. Robb
• P.N. Elrod
• Raymond Feist
• Robin Hobb
• Robin McKinley
• Terry Goodkind
However for Litman, “implied license” is also an insufficient mechanism to secure rights for fan creators. Litman questions the copyright owner-centric focus of current practice, and suggests that readers, listeners, and viewers should take a less peripheral position in the copyRIGHT story (177, 179). In support of this position, she points out that fans often contribute to the original work created by an author; however, she notes that these contributions are difficult if impossible to quantify. Unfortunately, Litman doesn’t offer much evidence in support of this assertion, but it is provocative and interesting to consider. What Litman accomplishes here is that she effectively brings into focus the interplay between author and the world around them – no one creates in a vacuum, and even though often a solitary act – creation is inevitably a social process that is predicated on interaction.
Furthermore, she cites that reading is itself a creative act and is, in large part, a requirement of the reader when interacting with a text. She believes this process or relationship is given short shrift in copyright negotiation, as well as in the scholarly literature (180). She acknowledges that there does need to be limits on right of use, but that our current arguments do not consider the reader, viewer, and listener. She argues that current arguments for user rights, e.g., big law is bad law or copyright is about balance, have not been effective (182). Instead of relying on these tired arguments, she suggests we need to rethink how we conceptualize copyright law and to consider a larger perspective on creativity and creation. This is clearly evidenced in her conclusion when she states, “the Progress of Science and the integrity of copyright law are likely to be furthered by encouraging readers, listeners, and viewers to experience works with imagination and creativity” (183).
Litman’s article identifies and assesses key legal issues and considerations surrounding the creation of fan fiction. She provides an articulate and provocative argument in favor of more robust user rights, while at the same time protecting copyright holders. She acknowledges that as technology continues to evolve and create and support expectations for user participation, interaction, dissemination, we would be wise to rely less on codified and stringent laws and more on mutual respect.
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