Professional Authors and Fanworks

In recent weeks, partly prompted by Diana Gabaldon’s publication of her fan fiction policy, some other professional authors have been moved to declare their positions (pro, con, or in between) on fanworks. The OTW has also been contacted by some professional authors who like fan fiction, but worry if it poses a danger to them in some way.

For the record, the OTW believes that noncommercial fan works are an important form of cultural conversation and don’t require the approval of the original work’s author or owner. While fair use is a key component of our intellectual property system, it’s also important to talk about other aspects of the law that may assuage some fears.

Q: I’m a professional creator. Do I need to avoid reading or acknowledging fanworks based on my own works?”

Answer Under The Cut!

A: This is essentially a personal decision. If it will upset you to read, view, or watch fanworks based on your works, then don’t.

Authors are sometimes advised to avoid reading or acknowledging fanfiction transforming their own work, as it is in theory possible that an author could read a story, go on to write something similar, and face a claim by the fan that she copied the fan’s work. There are many reasons to discount this risk, the least of which is that case law is all in the first author’s favor: no court is going to be receptive to a claim that a later work by the first author in the same universe infringes the fanwork. Among other things, when people begin with similar premises, it isn’t at all surprising that they will end up with similar ideas–but copyright law protects the specific expression of an idea, not ideas. Even if a fan work is similar to a later work in the same universe, similarity of ideas (say, how wand magic works in Harry Potter) isn’t sufficient for a copyright claim.

However, not being able to win doesn’t erase the possibility that someone could threaten to sue. The real issue is that it doesn’t take a fanwork to generate a threat! If an author reads her fan mail or online reviews, she might encounter a fan’s ideas about what should happen with the characters; if she reads other books, she might encounter a storyline or character similar to a storyline or character she might later use. In fact, the typical author-versus-author infringement case involves claims that one work copied another, apparently unrelated work.

The OTW’s mission includes explaining the difference between ideas and expression. A lot of people may have the same idea about what should happen on the next season of House; but if they each write different stories expressing the idea differently, then those stories don’t infringe each other.

In short: a professional creator is no more at risk (and arguably, a lot less at risk) of being sued by a fanfiction writer than of being sued by any other author who’s ever written anything. J.K. Rowling, for example, has been sued by English children’s writer Adrian Jacobs (author of The Adventures of Willy the Wizard); American author Nancy Stouffer (who claimed that Harry Potter was a ripoff of her character “Larry Potter”), and the band the Wyrd Sisters–none of whom are fans.

Links Roundup for May 16, 2010

Here’s a roundup of recent articles that might be of interest to fans.

* Academia as a Commons: David Bollier’s speech at Amherst talks about the ways in which academia should be a model for intellectual and creative sharing. Instead, he lists the ways in which “a series of court cases have also reduced the scope of fair use rights”, preventing scholars from quoting letters, printing images, citing song lyrics, copying coursepacks, etc. Bollier argues that students are being taught only about copyright infringments and not about fair use, which is to say “their lawful ability to copy and share information under certain circumstances.” Many of the battles that fans are facing to preserve their values–collaboration, community, noncommerciality–are also being fought in academia.

* Copyright @300 was a conference held at UC Berkeley School of Law to explore “the past and future of copyright law.” Much of the conference is now online in the form of .mp3s or .pdf summaries of arguments. Fans who are interested in the ways in which copyright may be evolving may want to listen in.

* Rodo, one of our German translators, reports on how the large, multifannish German archive fanfiktion.de/ was sent cease and desist letters by a group of opticians arguing trademark infringment. At issue is the fanon term “Lichtbändiger” (aka Lightbender) in Avatar: The Last Airbender fanfic; fans created the term to parallel canon’s Airbanders, Waterbenders, Firebenders and Earthbenders. But it turns out Lichtbändiger is also the brand name of certain eyeglasses. After consulting a laywer, the archive owners decided to remove the “offending” stories. While we understand their decision (in that they probably don’t have the means to argue the point), we have to ask: is there really any potential for confusion there? Should companies be able to own words regardless of context?

* A group of European digital rights organizations, libraries, consumers’ rights groups, and ISPs have released Copyright for Creativity – A Declaration for Europe, an appeal to the European Commission, the European Parliament, and Member States, to adopt sane copyright practices that will encourage innovation, education, accessibility, creativity, and participation.

Naomi Novik Interviewed at Tor.com

OTW Board Chair Naomi Novik was interviewed for “The Geek’s Guide to the Galaxy” podcast at Tor.com. Her interview, Episode 17: Dragons! Fan Fiction! Copyright Law! has been released. The page also provides a handy-dandy cheat sheet to topics covered within the podcast: Naomi talks about the OTW, about “the myth of originality”, problems with copyright law, and other topics starting at 28:22: of course, fans of a certain dragon may want to listen to the whole thing. 🙂