Fanfiction: Threat or Menace?

Secret confession time: I used to write fanfiction. Tons of it. And worse than that, I totally wrote Mary Sue fanfic.

You'll have to forgive me. I was fourteen years old, and just doing what came naturally. I didn't even know what it was at the time. In fact, I only recently -- some twenty years later -- realized that's what it was. But me and a friend of mine had torn our way through ElfQuest, and we wanted to be a part of that world. So we wrote and illustrated new stories for the characters we loved in the universe we wanted to escape to.

This wasn't the beginning of my play with other people's IP, either. When I was a mere lass of eight years old, I remember vividly chasing my friends around the monkey bars, pretending I was Princess Leia, and they were Luke Skywalker and Han Solo and Darth Vader. 

Heck, when I was in high school, one of my creative writing teacher's favorite assignments was to have us write what was essentially fanfiction with literary characters -- Jay Gatsby meeting Dracula, perhaps. I recall rewriting the ending of A Tale of Two Cities as one of the high points of my high school literary career. At its heart, it's basically the same thing. Except that under the law, they are very different things indeed.

What brings on this deep, dark secret from the 8th grade? Well, wildly successful author Diana Gabaldon has posted her opinions on fanfiction. She sums up nicely at the beginning:

OK, my position on fan-fic is pretty clear: I think it’s immoral, I _know_ it’s illegal, and it makes me want to barf whenever I’ve inadvertently encountered some of it involving my characters.

She seems to be reconsidering this stance, based on a later post. But she's by far not the only one in the world with that opinion; you might even call it the default starting point, especially for the kinds of major franchises most likely to go full-on transmedia. So I'd like to talk for a bit about intellectual property, copyright law, and fandom. 

Copyright Law Sucks (and Also it Is Way Confusing)

I used to be able to doodle a mean Garfield, back in the day. But while this briefly made me shine in the eyes of my classmates, it also made me a criminal in the eyes of the law. I'd created an unlicensed copy of a copyrighted work! Oh noes! 

Worse, Garfield is trademarked, which brings in a whole different-but-related set of legal knotwork to untangle. And, indeed, this confusion between trademark and copyright is one of the key problems creators, fans, and IP holders deal with today.

Trademark holders can't let you get away with infringement -- like me and my doodled Garfield -- even if they want to. Because if they don't work their tails off to limit infringement, then the one time it legitimately costs them umpteen bajillion dollars, the court is going to laugh at them and say if they cared so much about their intellectual property, they would've nipped this thing in the bud with less-significant cases. 

As a result, it's equally illegal for me to draw Garfield on my math notes, draw Mickey Mouse on a birthday cake, or make a new header for my blog starring the entire cast of Yo Gabba Gabba. 

But is it illegal for me to write a story with Garfield in it?

Maybe, and maybe not. This is where it starts to gets murky, and it's only worse the further you get. If I'm using the character of Garfield to tell just another story starring Jon and Odie, it's probably not kosher. If I'm trying to sell it as a book on Lulu, it definitely isn't. But if I use the character of Garfield and transform the work into something entirely different -- like in Garfield Minus Garfield, for example -- it might be OK. There are cases where all's fair in creation and culture repurposing. 

Creators have used the fair use doctrine to write alternate novels about such famous works as Twilight and Gone With the Wind. If that's not commercialized fanfic, I don't know what is. But it's a gray area if there ever was one; fair use, satire, parody, they're all well and good if that's what you're making, but sometimes fair use is in the eye of the beholder. And if you were the owner of the Margaret Mitchell estate, you, too, might want to suppress the commercial release of such works. 

That's not even getting into the arcane world of movies, music, sampling and clearances. The medium you use to express yourself very much affects what aspects of copyright law you need to know about. I'm not saying you need a law degree to keep it all straight, but it sure would help; and as a creator who, on a good day, is working with several kinds of media at once... man, I sure would like it all to be simpler.

So that's the state of the world. Confusing, growing more confusing by the day. At least it keeps the IP lawyers employed in a down economy.

Transmedia and Fanfic

As I understand it, the entire point of making a transmedia property is depth of engagement. And the primary reason that people write (and read!) fanfiction is because they are so very engaged with a story that they can't bear for it to end, or they want to explore something that happened offscreen, or shine a new light on existing canon, or just plain old put their own faces into a story. 

I'll even go so far as to say that the entire point of transmedia is to build exactly the sort of fan culture in which fanfic and fanart thrive. Speaking as a creator, if somebody is making fanfiction around my work, that means I am doing it right. I'd like to see a lot more of it! 

That said, I also have a vested interest in keeping myself gainfully employed, and profiting from the juicy money-squeezings of my body of work, assuming there ever is such a thing. But where's the line between "paying me homage" and "ripping off my work"?

It's not exactly the letter of the law, but a lot of IP owners have historically put that line at the cash register. You write as much Kirk-on-Spock action as you need to, and they'll look away. And probably shudder a little, while they're at it. Just don't start shopping it around or slap it up on a print-on-demand service. 

That seems fair to me... but even that isn't clear-cut. In a world where a video of a kid hopped up on anesthetic can net six figures, even the line between commercial and noncommercial use starts getting murky. If I put my Kirk-on-Spock in a blog post and I happen to run ads, am I monetizing somebody else's IP? What if it's syndicated or aggregated to a third-party site that runs ads?

Free Culture

The legal solutions I've seen bandied about for these and similar questions usually involve draconian measures to protect copyrighted works from any unapproved use. It's part and parcel of the copyright piracy hysteria we see, and while that's a different ball of wax, it's the same body of law, so it all gets jumbled together.

Look, I don't want to live in a world where nobody can mashup The Beatles and Metallica, a documentary on music sampling simply can't exist because there is no way to get all of the proper clearances, and the age-old practice of playing in another creator's playground is criminalized. I want more creativity, not less.

So how do we fix it? Well, we need to loosen our death-grip on the reins of our IP. A lot.

Creators need to understand that derivative works make them money. When your work is being referenced in a song, a clip, a story, it's assuming cultural knowledge of the original work. Kirk-on-Spock doesn't make sense... unless you've seen Star Trek. And if somebody doesn't have that cultural knowledge, then the allegedly infringing work is actually acting as an advertisement for the original. You can bet paperback sales of Pride and Prejudice went through the roof when Pride and Prejudice and Zombies came out -- and that's a work that isn't even protected by copyright anymore!

Better, understand that volume of fan-generated works are a fantastic barometer for the success and longevity of your IP. Fan-created works tell you the temperature of your fan culture: How engaged they are, what they're interested in, what they hate. A good transmedia creator will even find ways to focus a thriving fan culture's creative energy. I've talked about how this made the Why So Serious campaign such a rousing success, and I stand by that.

So look, fanfiction isn't the enemy. It's definitely not immoral. It might or might not be illegal, but it definitely shouldn't be. And seeing it should make any creator cheer wildly that they've got a hit on their hands.

You can't stop the creative impulse, and I don't know why you'd want to. Find a way to work with it, and everybody wins. Stamp it out, and everybody loses.

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