- by Laura Resnick
Fan fiction (fanfic) is a term which typically indicates an unauthorized, unlicensed derivative work based on (most often) a TV show, a movie franchise, or a fiction series. Fanfic is generally written as a hobby and distributed for free.
Although not limited to the following areas, fanfic is most prevalent among fans of the science fiction and fantasy genres, and among fans of series or franchises. In other words, fanfic based on the science fiction franchise Star Trek is common, whereas fanfic based a stand-alone mainstream film like Titanic or novel like The Bridges of Madison County is unusual.
Another key aspect of fanfic is that, at least when it’s derived from fiction, it’s most often based on a very successful series. A midlist author is much less likely than a New York Times bestseller to discover that her work has become the object of fanfic.
Therefore, obviously, fanfic doesn’t affect a high percentage of writers. Nonetheless, it’s a high-profile enough problem that it’s discussed often among professional writers; it’s also debated, sometimes with rancor, between professional writers and people who participate in fanfic.
Fan fiction is a derivative work, meaning that it uses the characters, settings, and premises of someone else’s original creation.
Many supporters of fanfic mistakenly believe that, as long as fanfic doesn’t actually plagiarize (i.e. lift whole sentences and paragraphs from the original author’s work), then it is not violating the original author’s intellectual property. Many fanfic supporters also mistakenly claim that fanfic is merely work inspired by the original, and therefore there is no violation of intellectual property.
Let’s suppose I write a story set in the far future, portraying an optimistic and progressive interstellar culture in which mankind plays a central role. In this setting, I create an idealistic space service, and I focus my tale on one particular spaceship in this fleet, the Titanic. The ship has a shrewd, power-hungry, womanizing captain named Leonardo; a brilliant, coldly intellectual first officer named Kate; and a folksy chief medical officer named Molly Brown.
That is a work inspired by Star Trek, and although shamelessly imitative, it doesn’t violate intellectual property rights.
By contrast, a story derived from Star Trek is one that features Captain James T. Kirk, Mr. Spock, and Dr. McCoy aboard the starship Enterprise, traveling the galaxy on behalf of the Federation; and, if unauthorized, that story does violate intellectual property rights.
The distinction between derivative works and inspiration is why, for example, author Margaret Mitchell’s estate sued over a novel called The Wind Done Gone, which was a retelling of Gone With the Wind from the perspective of Scarlett O’Hara’s half-sister (a slave on Scarlett’s plantation), but did not file a lawsuit over various Civil War novels about a willful Southern belle being wooed by a blockade runner. (The Mitchell estate dropped the lawsuit after the publisher of The Wind Done Gone met certain conditions.)
By contrast, the reason that the work of Jane Austen, for example, is the object of unauthorized derivative fiction without legal consequences is that her work has long been out of copyright and is in the public domain; that is, Jane’s original intellectual property doesn’t belong to anyone anymore. (Under current US copyright law, mine won’t belong to my heirs anymore when I’ve been dead for 76 years.)
Another common misconception I’ve seen about fanfic is that it’s “no different than” writing media tie-in novels. For example, dozens (probably hundreds) of Star Trek novels have been published; and, yes, they are indeed derivative works of intellectual property that is not in the public domain. However, these books are licensed and authorized—and therein lies the key difference.
The media entity that owns the intellectual property (in our example, Star Trek) licenses publishing rights to a publisher or packager, which in turn contracts novelists to write the books, thus legally authorizing them to fulfill the terms of the license—which terms, by the way, typically include hands-on content-control by the media entity that owns the artistic property.
Moreover, the license is only for a specific number of books. If the license is not subsequently renewed, the publisher can’t publish more Star Trek-derived books; if it does, it will be sued, because it will be in violation of the owner’s intellectual property rights. Similarly, the author has no right to publish a Star Trek-derived novel unless specifically contracted to do so.
In a similar vein, publishing contracts for original fiction (fiction created by the author, rather than based on a media property) specify who can or cannot create, authorize, or license derivative works of the material, and who will or will not benefit fiscally from derivative works.
In negotiating a contract, the owner of the intellectual property (i.e. the author) may choose to retain exclusive control of all derivative rights; or the author may choose to license certain derivative rights to the publisher, in which case the contract specifies how artistic control and fiscal proceeds will be handled.
This is all by way of explaining how seriously professional creators (of films, TV shows, books, games, etc.) take derivative works. Note that in all of these examples, it’s not just who gets the money that film producers and novelists care about; handling of derivative works typically includes specifying the original creator’s right to artistic supervision or control. We have a right to manage the portrayal of our creations; not just a theoretical right, but a right that’s always spelled out in all of our professional contracts.
Fanfic is unlicensed and unauthorized derivative work. The reason most media companies and writers don’t do anything about it is simply that it’s too time-consuming and much too expensive to pursue it. Legal bills mount very quickly, and fanfic is a never-ending flow. Therefore, since fanfic doesn’t generate income for the people violating the intellectual property, and doesn’t cut into the income of the people who created those characters/worlds and who write them professionally, most creators just state their fanfic policy (which is usually some version of “please don’t do it”) and then try to ignore it.
However, on any occasion when a fanfic writer charges money (even if only, as is often the justification, to cover their distribution costs) the creator of the work from which the fanfic is derived usually has to take action then, because now a line has been crossed that sets up all kinds of nightmarish potential legal problems for the writer: The fan has created a commercial transtion around his unauthorized and unlicensed use of the writer’s intellectual property, and that’s a precedent the writer cannot afford–artistically, legally, or fiscally–to let stand.
When people debate the fanfic problem, there tends to be quite a bit of wholly misplaced focus on the quality of fanfic. I don’t discuss, debate, or care about that point for one crucial reason: It is ENTIRELY IRRELEVANT.
The legal and ethical issues inherent in fanfic don’t evaporate if the fanfic is “good,” nor do they become more serious if it’s “bad.” Quality is a non-issue in terms of the violations committed by distributing unauthorized derivative work based on someone else’s intellectual property.
Using a writer’s intellectual property in an unauthorized derivative work is no more flattering—and also no more legal or ethical—than if you see anything else belonging to the writer that you like, take without asking her, and use without her permission.
If you want to flatter a writer: Read her books. Re-read her books. Recommend her books to others. If so moved, tell the writer what her work means to you. But leave her intellectual property where it belongs: in her hands.