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As fanfiction becomes an increasingly popular pastime, powered by mash-up culture and the ease of online dissemination, it is becoming harder for authors to control the worlds they create. Imitation may be the greatest form of flattery but creators are not always amused when fans start messing with their creations.
While some authors appreciate the attention and have gone so far as to publish terms and guidelines for fanfiction, others sue, especially if there is a chance of someone else making money from their hard work.
The pleasures of fanfiction
As far back as the 1920s small groups of fans gathered to imitate Arthur Conan Doyle’s Sherlock Holmes stories. But fanfiction took off with the internet. There are now dozens of cites hosting fan fiction including mystery, romance and the ever popular pornographic and slash fiction genres.
In Amazon Kindle Worlds, fanfiction authors can create and publish fan fiction for titles whose rights holders have entered into agreement with Amazon.com.
The appeal extends to published authors for whom fanfiction can be an exercise or a kind of relaxation. Amazon proudly cites popular authors who enjoy playing in this space including best-selling popular fiction writer Nancy Naigle and romance writer Trish Millburn.
Jason Starr, an award-winner author of tough crime novels, writes fanfiction for Harbinger, resulting in a best-selling Christian novel that posits the 9/11 terrorism attack as a divine warning to the United States.
‘I love challenges that can take my writing in new directions, and it was blast to write a story set in the Valiant universe, with themes and characters that don’t normally appear in my writing. I also enjoyed writing from the point of view of a teen and preteen character,’ said Starr.
Read: Is originality over-rated?
Fanfiction researchers Karen Hellekson and Kristina Booth say producers now regard fanfiction as a commodity ‘using fans as free labour to generate buzz’.
Hellekson and Booth recently published The Fanfiction Studies Reader a collection of serious academic essays reading fanfiction variously as interpretation of the source text, as a communal gesture, socio-poitical argument, individual engagement and identification, audience response and pedagogical tool.
‘Fan cultures have moved from being a tolerated or ignored unruly fan response to an important and sought after audience of engaged leaders. Fans used to be small, easily mockable subcultures but changes in distribution models, audience engagement, and cultural acceptance have mainstreamed the term and behaviour with media industries trying to model fannish modes of engagements to ensure engaged, positive and active audiences,’ write Hellekson and Booth.
The legal risks
The Australian Copyright Council has acknowledged the complexity of the genre with a new information sheet to help those playing with the popular works stay on the side of the law.
The key protections for fanfiction writers are the ‘fair dealing‘ exceptions to copyright law which allow authors to use another’s work for the purpose of criticism or review, or for parody or satire.
‘Whether or not a use is ‘fair’ under Australian law will depend on the circumstances of each separate case.
For fanfiction authors who write parody fanfiction, or fanfiction that satirises the original story or story tropes, this would easily come under the fair dealing for the purposes of parody or satire. Similarly, fanfiction authors who write fanfiction which examines and critiques the original material, either the original story itself or its themes and ideas, could arguably come under the fair dealing purpose of criticism and review. Other types of fanfiction, however, such as alternate universes or romance, do not easily fit into these purposes, and thus would not be covered by a fair dealing exception.
As well as copyright, fanfiction authors need to ensure they are not infringing the ‘moral rights’ of the author by damaging the author’s reputation.
Making it clear that this is fanfiction, nor the work of the original author, is essential. It is also important that the fanfiction respects the integrity of the original work. Adding a pornographic scene into a children’s book or turning the hero into a Nazi is not on.
Trademarks may also be an issue. While copyright law does not protect names and titles, names such as Harry Potter and Star Wars are registered as trademarks.
The Copyright Council said these trademarks don’t prevent you using a character’s name but they do prevent you trading on a well-known name. ‘For example, a fanfiction author who writes about a character they have created who attends Hogwarts and meets Harry Potter, is unlikely to infringe the trade mark in the name “Harry Potter” simply because Harry Potter has been explicitly mentioned. However, a fanfiction author who seeks to publish and sell a book titled “Harry Potter and His New Best Friend” will likely infringe the trade mark rights in “Harry Potter” as this would be a use of the “Harry Potter” mark in the course of trade.’
The Copyright Council recommends that when in doubt fanfiction authors should seek the permission of the copyright owner.
When it goes wrong
In practice the risks of writing fanfiction rest on two issues – the attitude of the original author and whether there is money to be made.
Authors such as JK Rowling and Stephenie Meyer have shown tolerance and even approval of fanfiction – within certain limits. Others such as Anne Rice, author of the Vampire Chronicles, strongly oppose it.
Maurice Sendak, author of the children’s classic Where The Wild Things Are vehemently opposed a sequel. After his death an author attempted to raise money on Kickstarter to create a sequel and publishers HarperCollins successfully applied for an injunction preventing the project going ahead.
Similarly a group that sought to create an online web series based on the computer game Final Fantasy VI was stopped after Square Enix, the rights holder of the Final Fantasy game series, sent a warning letter to the project organisers and Kickstarter removed the crowdfunding website for the project.
Even when creators have previously tolerated fanfiction, they can change tunes when it looks like fanfiction will make money.
JK Rowling endorsed The Harry Potter Lexicon as a free online resource but when RDR Books sought to publish it as a commercial book Rowling and Warner Bros sued and won.
CBS and Paramount, which hold the rights to Star Trek, have tolerated Star Trek fan films since the 1960s. But in 2015 they filed an injunction against Axanar Productions, which had raised announced $US 1.1 million to create a feature-length Star Trek fanfiction film about the Four Years War, an event mentioned but never actually depicted in official Star Trek productions. The matter has not yet been resolved.
More information at Copyright Council
