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[justalurkr]

cesperanza makes a point about fanfiction, legality thereof:

Dear Fandom: Could You Please Stop Saying That?

Well, she makes a couple of very interesting points. Sorry for the rebel brigade out there, but I think she's right.

Comments

[nialla]

I've never felt fanfic was "illegal" in and of itself, but I also subscribe to the theory of not rubbing the copyright owner's face in it either. Plausible denial can be your friend, and ignorance can be bliss for TPTB too. One of the big issues about TPTB knowing about fanfic is the fear (unfounded or not) that they'll write an episode that a fan will then claim was their idea in a fanfic and therefore TPTB copied their idea and should pay them.

Plausible denial is especially useful for fanfic based on literary works instead of television shows or movies. From the writer and publisher's POV, fans are providing derivitate works in the same format as the author, so they might have a slightly better chance of saying it's infringing on the author's right to make money on their printed word. I have seen a few authors allow fanfic writers to play around in their world (such as Pern), but they don't want fans using their characters.

I think most movie and tv producers are smart enough to realize that fanfic is a good (and free) marketing tool. How many times have we seen fans say they kept watching a show that was getting a bit iffy because the fanfic was good? Or they started watching the show because they'd read fanfic they liked? And it can work wonders on keeping the show on fannish radar during a hiatus that can be months long.

Though I can sympathize with those who are offended when someone remixes a fanfic without the original author's knowledge. Not that I think it's an "OMG, so wrong, you can't do that, it's mine!" issue, I just think it would be common courtesy to ask first. Most would say yes, and I think they'd prefer knowing in advance instead of hearing about it somewhere else.

[justalurkr.livejournal.com]

The thing about free marketing is pretty much what I said in a different, but related, discussion on senad. The main thrust of my post there was that, leaving the free promotion of their copyrighted material aside, there simply isn't enough money to be recovered from fan creators to pay for picking up the phone and calling the attorney, let alone taking it all the way to court.

Plus, I believe Scholastic found itself in a sticky and rather embarrassing situation when it tried to "defend" its rights to Harry Potter against children. At least one tween fan became a poster child for oppressed fans everywhere because of the images, etc., she had on her site. No adult material, which is probably what Scholastic was really after, but somehow? The poor, beaten-down child caught the public's eye.

Fans that watch iffy shows because the fanfic is good? We don't know anyone like that, do we? ;D

[nialla]

Yeah, I know Scholastic was aiming at getting rid of adult Harry Potter fanfic because, as you know, "Who'll protect the children???!!!"

They'd definitely spend more money on lawyers than the fight would be worth and all it would accomplish is to piss off fans who in turn will quit reading/watching the stuff that The Suits are getting paid to make.

[gategrrl.livejournal.com]

astolat is heading a movement now to create a vangaurd website to fend off those who would try to profit off of fanfic writers. I haven't been to that site she mentions, nor do I know anything about it - but I think, from what little I know about it, it's a Bad Idea.

After all, even though astolat writes fanfiction herself (damned good stuff, too), doesn't mean that other authors are exactly thrilled with the blatant in your face co-op-tion of their works and characters.

*sigh* I've gotten into a big argument on Czesperenza's LJ, but really, it's on two different fronts. Aside from the originality issue, there's the legal issue of the copyright.

Like you said; you don't shove a copyright owner's copyright back in their face, even if you mean to be complimentary by using their "toys". It's liable to make the owners of the property very very tetchy about allowing derivative works about their stuff.

[nialla]

I came into fanfic in the days when there were still a lot more print zines than online archives, and the standards I learned then still stick with me.

The main concept would be phrased now as, "The first rule of fanfic is - you do not talk about fanfic. The second rule of fanfic is - you DO NOT talk about fanfic."

It was an open secret. TPTB knew about it, but it could be easily ignored because they'd have to buy a zine to read it. All that changed with so much being available online. It's been a blessing for fans to be able to communicate with each other and share fanfic, but it's also a curse because it puts us more on TPTB's radar.

I still get twitchy when people ask actors or TPTB about fanfic. I know they already know about it, but I just don't like them being put on the spot like that, especially if it's some twit trying to embarrass an actor by asking about slash, or even worse, trying to "prove" that slash is evilevilwrongbad via the actor's statements.

[justalurkr.livejournal.com]

My understanding is that Astolat is an increasingly successful professional writer, as well. She doesn't want her pro-identity associated in any way with her fannish identity (hmmm...I wonder why?) so I won't out her here, but unless I slept through a page of responses on Cesca's LJ, Astolat didn't chime in on the originality issue.

Anyway, my perception was that you and Cesca do agree on the central point of her post: fanfiction is a legal gray area. She wants fans to stop saying it's illegal; no such ruling has every been made with any finality.

My other perception is that, for some reason, every time the legal merit of fanfiction comes up, people start conflating the artistic merit into the issue. There's so much legally published crap loose in the world (some on bestseller lists, even) and so much fantastic gray area fiction, that I never understand what one discussion has to do with the other. Legalizing something sure as hell doesn't make it art, whatever the rest of the factors are under discussion. Every single time I've seen one discussion start, I've seen the other one creep in, though.

Where I think you got hung out to dry by the fanfic mafia is that usually, when someone points out that Original is Intrinsically Better Than Derivative (an opinion with which, in many contexts, I agree) they're not usually a Friend of Fanfiction. What they're doing on mailing lists devoted to the discussion or dissemination thereof has always mystified me, but so does much else about fandom. ;)

[gategrrl.livejournal.com]

Where I think you got hung out to dry by the fanfic mafia is that usually, when someone points out that Original is Intrinsically Better Than Derivative (an opinion with which, in many contexts, I agree) they're not usually a Friend of Fanfiction. What they're doing on mailing lists devoted to the discussion or dissemination thereof has always mystified me, but so does much else about fandom. ;)

Yeah, I think you're right. Very recently, within the past year, was it? There was that prowriter, who writes media-tie-in novels, dissing fanfic writers. I remember Nialla? I think? And Brihana, too, getting involved heavily in that discussion. Now, I will defend a fanfiction writer's creativity to do what they want. After all, I think *everyone* has written, or just fantacized in their head, fanfic and scenerios about their favorite shows or book characters. But anyhow, back the point. Yes - there are writers who have managed to go pro who end up divorcing themselves from the fanfiction arena, often times by openly criticizing the...it's not a genre, but I'll use that word to describe it in this context.

There are just as many other pro writers who also write fanfiction, and who never leave. I immensley enjoy both their pro and fanfic works (except when it includes aspects I'm not thrilled with, like incest), since they are, in general, capable, competent FUN writers who have a great voice and style. THAT doesn't change with the type of fiction they write. But yes, it's telling and very noticable that although they support fanfiction, they aren't willing to 'out' themselves. One of my posts broached on astolat's true identity, and it got deleted. I admire her writing. But why are even the pros who love writing it, hide from acknowledging that yes, that's what they do in addition to writing their pro stuff?

Simple answer is, lawyers and professional writer culture. Their pro careers could be sunk quickly enough, because even if it's not technically illegal, it's not good form to use someone else's characters without their permission, and then post it up on the internet. It Not Done. It's not professional behavior. Until it becomes okay and cool to dig into another currently writing author's works, it's NOT okay and cool to acknowledge that that's what you're doing.

I wonder what they would do if their own currently published works were co-opted by fanfic writers? Would they cheer those writers on? Would they ask that it be put off-limits, because it's very possible they might *know* those particular fanfic writers? It gets the pro writer into a tetchy gray area.

I only know that if I went Pro (god willing, I hope) I would not be happy about other writers using my characters; and the worst part is, I wouldn't be able to read what they wrote!

Your other point about Cesca and I essentially agreeing - that's true. But she's coming at it from the point of view that if it's not Illegal, it's Legal! Whereas I come from the opposite end, where I think, if it's not Legal, it's possible it could *become* Illegal, or is.

There's a LOT of original fiction crap out there. Of course there is. There's a lot of shitty art, plays, etc produced. Why is that? Lots of reasons - but perhaps the main reason is, there aren't enough good writers coming into the fore. If it was that hard to get published, then how is so much drek getting published? From everything I hear, editors would DIE if they got so much good stuff as is being put up on fanfiction websites. (I have a particular writer in mind who I think would be published almost right away - Tiv. I think her writing is a perfect style for publishing)

Argh. I'm doing it again. But I think you're right on. I agree with a lot of your post.

[justalurkr.livejournal.com]

But she's coming at it from the point of view that if it's not Illegal, it's Legal! Whereas I come from the opposite end, where I think, if it's not Legal, it's possible it could *become* Illegal, or is.

Hadn't considered that angle. You're right. I still like the suggestion that people stop saying it's either in public until it's been decided, though.

I guess the reason people tangle up the "legal" and the "artistic" merits, even if they have very little to do with each other, is that:

1. Hobbyist think their hobby will stop if the decision comes down against the legality of fanfiction. I think they're the ones most likely to keep it under the radar so the decision just never goes to the mat.

2. Artistes who don't agree that Original is Intrinsically Better Than Derivative (and there are about three different discussion lurking behind that topic at least, with the odds any two participants are having the same one approaching nil) are the ones I see as most likely to seek a definition of their fan creations that makes it legal or at least such a pale gray that no one cares about the difference.

Digression: The Three Different Discussions

a. Nothing new under sun. That one's so done to death I'm falling asleep just typing it. The Odessey set during the Civil War or King Lear on a cattle ranch have enough on the ball new that I think Cold Mountain and A Thousand Acres are original fiction, and neither of the authors makes any bones about the derivation. The key there is that Frasier and Smiley did pick classics out of copyright. Though I think The Wind Done Gone won its case by getting classified as a parody, what I've heard of it puts it closer to a fanfic remix, or to what those first two authors did. Oddly enough, with GWTW still under copyright at the time of the kerfuffle (if I recall correctly) the attorneys didn't approach it from that angle. Hmmm. I wonder why?

b. Validation or invalidation of self expression. Telling fans their art is lesser (or not art) because they didn't think everything up themselves is seen as bad, wrong, mean, oppressive and (given the domination of women in fanfiction) probably evil sexism at its worst. OMG where do I start? Some truth is unpleasant, but that doesn't make it mean, bad, wrong or any of the rest of that. I'm with you on the thing about women breaking onto the main stage of life under their own names, doing their own work. Calling one's hobby one's art is self-oppression and a dodge away from making the audition, if you ask me.

On the other hands, privileging certain forms of expression as art just because it's legal to make money with it does rather cheapen the idea of art.

c. "The concept, settings and characters really belong to the people who can do best by them." No joke, I read fanfiction almost exclusively because, spotty as its quality can be, fanwriters are taking things in directions I find much more interesting than most commercial fiction. But, just because a writer can do more creative things with a concept than the people who own it doesn't make that any more the fan's concept, at least in my opinion--or in the eyes of the law. There are many who call fanfiction a reclaiming of our myths, but what we're claiming isn't myth, it's a commercial commodity intended to get us to watch the sponsors' ads.

I like what the writers at Bridge put on the screen every week, but I love what fans do to improve it. I still don't see polishing up somone else's tin cup as being the equal to hammering out one's own. No, there's nothing new under the sun about tin, and it's better to say one is polishing up someone else's cup than to represent it as one's own work, but nothing beats the result that started with raw tin and a hammer from one's own hands.

[nialla]

But why are even the pros who love writing it, hide from acknowledging that yes, that's what they do in addition to writing their pro stuff?

I think you're right; pro writers who also write fanfic generally want to keep it quiet because of the potential issues that could come up from their publisher's Legal Department... or from the legal departmnet of whoever owns what they're fanficcing.

I've always been one to prefer fanfic for visual media (tv and movies) versus print. With movies, and tv shows especially, it's more of a group effort from start to finish. There are hundreds of people creating the product, from writers, producers and actors to the guy supplying the craft services table. Versus the print industry, where it's generally one person's creative vision, with editors tweaking it (sometimes taking a machete to it) and publishers distributing it.

I feel kind of weird dinking with an author's work, because writing about their character(s) in their world(s) is how they make money. With a tv show or movie, there's already lots of people dinking around (hence the often erratic storytelling and characterization), so it doesn't bother me as much to have fanfic writers in the fray.

I know that's really a double standard, but it's just my gut reaction, which gets even more complicated when a book is adapted into a tv show or movie.

If it was that hard to get published, then how is so much drek getting published?

Being a good writer only gets you so far. You have to have whatever the publishing industry currently thinks is marketable. The hardest part is getting your foot in the door, but if your first book sells well, you'll generally get a contract for more.

But the problem I see so often is many authors spend years trying to get published, often spending their time writing, rewriting and tweaking whatever book(s) they've been working on. But once you get published, the publisher wants a quick turnaround. Instead of the months or even years spend polishing your baby to perfection, you've got a very short turnaround time.

And you've got to do it over and over again, without much break to recharge the creative batteries. Oh, and what you've been writing is no longer "in" so can you please write in a genre you've never read before?

[nialla]

My understanding is that Astolat is an increasingly successful professional writer, as well. She doesn't want her pro-identity associated in any way with her fannish identity (hmmm...I wonder why?)

In some cases, it's the publishers who request that the "pro writer" and "fanfic writer" remain two completely separate entities. In others, it's simply the writer wants them separate, to keep "work" and "fun" in their own little boxes.

It's generally not that the fanfic writer turned pro is ashamed of their past, because many of them still write fanfic. I think since fanfic is still such a gray area, they just don't want to risk potential problems in the future.

I love the people who automatically go into "fanfic is not original, ergo it is crap" mode. As you said, there's a lot of professionally written crap too -- the rule says 99% of everything is crap after all -- but at least with fanfic I'm just wasting time and not money.

[gategrrl.livejournal.com]

Yeah, I know Scholastic was aiming at getting rid of adult Harry Potter fanfic because, as you know, "Who'll protect the children???!!!"
Was it really so much that as, as the creator of a *children's book* series, JK Rowling, the creator, really didn't like seeing the children portrayed within her stories, as being rampant sexual creatures?

Not saying that it is never going to happen with any children's book series (I'm sure someone somewhere has written the Hardy Boys as having a hot and heavy incest relationship, etc) but I can see it from Rowling's POV.

And I don't think these legal fights are always down to the money the Legal Beagles can squeeze out of little bitty poor fans. It's just as much as the point that is made, than about the money.

[nialla]

Was it really so much that as, as the creator of a *children's book* series, JK Rowling, the creator, really didn't like seeing the children portrayed within her stories, as being rampant sexual creatures?

I think it was a little from Column A, a little from Column B. But I also think most fans are very good at labeling adult fic, and I'd think they'd be even more scrupulous about in in Harry Potter fandom, but since I'm not into it, I'm not sure.

I don't think kids would find adult fic by accident very easily, but by putting the "adults only" tag on it, it makes it more attractive to some.

And I don't think these legal fights are always down to the money the Legal Beagles can squeeze out of little bitty poor fans. It's just as much as the point that is made, than about the money.

Oh, they can't squeeze much out of fans, since in most cases it would be like getting blood out of a stone. But they're darn sure going to earn their pay from the copyright holder.

Which is why I think most copyright holders don't actively pursue fanfic writers -- it would cost more in lawyer's fees than it's worth in the long run. And all it would really get them is their former free promoters turning against them. Much easier and cheaper to issue a few C&D letters now and again in the hopes of intimidating anyone who goes too far (in their opinion) and make the rest of fandom stay in the proverbial closet.

[gategrrl.livejournal.com]

I could foresee a very irritated studio developing a search and destroy engine using keywords and certain paramenters in order to snuff out fanfiction that has overstepped whatever boundries the copyright owners set.

Kind of like a fancy program version of the "search and replace" on MS word, or Office, etc.

And studios are known to do nonintuitive things like Paramount did a few years back to Trekkies with websites featuring photographs that weren't released to them. If I remember correctly, they shut a lot of sites down, including some I really liked. And I think they lost a lot of fans in the meantime: probably set up the Enterprise loss of ratings up in the process (as part of it)