Fan Fiction

- 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.

The good ship Titanic, on its mission to explore the galaxy

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.

Hear the theme music?

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.)

A novel derived from intellectual property that's in the public domain.

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.)

The Purifying Fire, a derivative novel I was contracted to write, based on a popular fantasy game.

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.

Unsympathetic Magic, August 2010, an original-fiction novel to which I control derivative rights.

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.

Finally, I’ve seen many claims among fanfic supporters that writers should feel flattered that people are so moved by their creations that they want to use them in fanfic. (This one makes me weep.)

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.

11 comments

  1. Alternately, of course, you could ASK THE WRITER’S PERMISSION before writing and publicly distributing (ex. posting on the internet) derivative stories based on her characters. If she says yes (and partciularly if you’re sensible enough to get that in writing), then your fanfic is not UNauthorized derivative material. And if she says no, then you can show your respect for her work by honoring her decision about management of her intellectual property.

  2. I think that’s one of the problems I have with all the P&P derivative fiction out there. Jane Austen never got the chance to say, “Sure, take the character I alone created, use him and/or her to your will, make money and dilute my reputation.” I don’t mind fanfic if it’s private. But when you’re getting paid for it, you owe something to the actual creator of the characters you’re using. And more than just a ‘Thanks, Jane.’

  3. The ghost of Jane Austen might be annoyed, but given how long she’s been dead, there are no ethical or legal violations in writing fanfic or professional fiction about Mr. Darcy and Miss Bennett.

    Whether there are violations of good taste or artistic sensibility is another matter….

  4. No, I do understand the difference. But don’t you think that those blur the lines for people who are not so knowledgeable?

  5. No, I don’t think the problem of authorized, licensed, or public domain derivative works is what blurs the line. In much the way that I don’t think graphic novels, movies, or gaming adaptations of novels, which are all derivative works, blur the line. (Similarly, fanfic crosses media boundaries, so that unauthorized prose stories may exist about a TV show which has never licensed published novels.)

    I think the source of the problem is people wanting to write and publicly distribute derivative works =without= understanding intellectual property, the nature of authorization and licensing, or the differences between inspiration and derivation.

  6. So, someone who used Georgette Heyer’s plots is writing derivative fiction and it’s legal? (I own both the originals and the derivatives, read and re-read them all.)

    I’m happy to know you two are still out there, as I never was able to thank Miss Heyer.

  7. Marianne, no.

    Precisely as explained above, someone who lifts a general plot (ex. a willful Southern belle is wooed by a blockade runner during the Civil War) may be guilty of being unoriginal and shamelessly imitative, but that is NOT derivative work and does NOT violate anyone’s licensing or intellectual property.

  8. With the inclusion of social media, youtube, etc. we are able to get access to many books, movies, graphic novels, etc. from all over the world. How does copyright laws work then? For example someone in country A which has really lax copy right laws reads a book from an author in country B which has really extensive copyright laws and writes a fan fic about the book. What happens? Does jurisdiction fall to country B where the book is published? I understand that from an ethical standpoint this is mute, you shouldn’t write fan fiction unless permission is granted, but am curious about conflicting copyright policies. I dont know if this is a mute point or not im just wondering how it works globally. I am a HUGE fan of anime and manga and these generate a lot of fan fictions from Americans even thought the original story might have come from Japan, China, Korea or somewhere else. I do read fan fiction but i stick with the ones where writers give the ok for them to be made.

  9. Kyle, your question covers a vast area of international struggle over intellectual property rights, which is as complex as international struggle and disagreement over rights of “free expression” in the internet era. (Ex. The 1st Amendment, let us recall, only applies locally, not internationally. In France and Germany, for example, Holocaust denial is illegal, whereas it’s considered a Constitutional right in the US.) There are enormous cultural and legal differences which the internet era has made extremely complicated at the global level.

    That said–intellectual property is property. I own my copyrights regardless of what society accesses the material. In practical terms, though, it’s much harder to protect copyright in societies where the rule of law is weak and/or where the government itself doesn’t protect copyright (or only protests it when there is self-interest involved for that government). Additionally, sueing or shutting down copyright violators in another country can be VERY complicated and expensive (and there is no guarantee of success).

    So, realistically, I don’t own my own intellectual property “more” or “less” depending on where it’s accessed; but my ability to enforce my rights varies quite a bit.

  10. Thanks for the response. That is what i was thinking would happen but i was just curious. I was wondering about the ability to enforce the rights. I didn’t know how the rules worked so i didn’t know how the interactions went.

  11. Hi Laura,

    Thanks for writing this, it’s insightful to hear it from a copyright holder in an open debate, as it was reading your posts on the Magic: the Gathering novels that directed me to this post.

    To follow up on a comment you posted there about sci-fi/fantasy being the biggest genre for fanfiction and the Star Trek copying analogy above, the reason that I think people want to write derivative works for sci-fi/fantasy and not for period fiction like Gone With the Wind is because with these works the universe forms part of the IP in a way that it doesn’t for history. This may seem to be stating the obvious, and sorry if it is, but these genres open up huge vistas of storytelling possibility that others don’t.

    So why not go off and write your own settings as well as stories and characters? I feel the answer to this lies in that the ideas people want to explore are so closely tied to the original IP that if expressed in another way they could amount to plagiarism. For an example of this, see the Da Vinci Code vs Holy Blood, Holy Grail case; sometimes the ideas and the IP are hard to distinguish.

    Not sure exactly whether there was any end point to this, just an observation I felt needed to be made. Thanks for helping broaden my understanding!