Books: Fan Fiction & Copyright

By Jonathan Clements.

A fandom, writes Aaron Schwabach, “is the most powerful marketing tool a work of fiction can have.” Grow the right kind of grass-roots support, and authors can discover that works advertise themselves, that word-of-mouth becomes stronger than paid advertising. But fandoms can develop a sense of entitlement to the stories they read. What happens when fans start to push for more or threaten to write their own? You know it’s going to be a fun book when one of the first authorities cited is Neil Gaiman, stating: “George R. R. Martin is not your bitch.”

Aaron Schwabach’s book Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection is a witty thesis about the legal implications of fan fiction, citing landmark incidents from the world of publishing, and tracing changing attitudes towards fan-created works, from Gene Roddenberry’s apocryphal laissez-faire exhortation to George Lucas (“Leave them alone, they’ll make you rich!”), to Marion Zimmer Bradley’s panic at the discovery of a fan-created work that was too close to her next novel for legal comfort.

Annie Proulx, a mainstream author unfamiliar with the customs of fandom, was horrified at the sight of her Brokeback Mountain characters appearing in “pornish rewrites”, but as Schwabach notes, her undisputed copyright in the characters doesn’t mean that nobody else can use them. “They are protected,” writes Schwabach, “but not untouchable.” Schwabach’s arguments are so clearly set out that anyone – fan, publisher or author – can use them as a guide for establishing their position. Is a work protected? If it is, does the fan fiction in question actually infringe on that protection?

Surprisingly, Schwabach is prepared to include licenced spin-offs within his definition of “fan fiction” – a muddying of the legal waters. Certainly, there are similarities between working in licenced properties and writing a personal sequel to Akira that you only share with your friends, but at an organisational level, there is a world of difference. When I wrote the twelve-hour audio adaptation of Death Note (currently available in German, but coming in English later this year), I did so at the behest of the rights holders, who enjoyed strong powers of approval. If there was something they didn’t like in my scripts, the representatives of the authors had every right to have it removed. Compare that to the tribulations of the author Larry Niven, who issued a cease-and-desist order against a fan who attempted to involve his kzinti space-tigers in “a sadomasochistic homosexual gangbang.”

But this is a feature of Schwabach’s legalese – his book’s main title may refer to “Fan Fiction”, but his broader compass is “outsider works”, including all items derived from intellectual property, including such things as the unlicensed Harry Potter sequels, sneaked out by unscrupulous publishers in China and Russia.

Schwabach is interested in such areas, in part because fan fiction inevitably stands at a crossroads in “property, sexuality and gender.” Many of the contentious issues around fan fiction arise from the sub-category of “slash”, in which authors throw beloved characters into uncanonical and speculative erotic situations. He quotes at length an eloquent polemic addressing “the pathologizing of women’s behaviour and women’s desire… the history of othering and shaming the weirdos,” pointing to the fact that so many fan fiction writers are marginalised members of society seeking a safe space to act out their fantasies.

There is, it turns out, little recourse in copyright terms to stop someone taking your favourite heterosexual superheroes and imagining them bumming each other. But if those characters are trademarked, it takes us into a different area regarding whether such imagery might “tarnish” the trademark. It opens up a whole new can of worms regarding canonicity – who says those superheroes are heterosexual, anyway, and even if they are, who gets to say that the thought of them being gay would in any way “tarnish” their image? An author might suddenly announce, as JK Rowling did with Dumbledore, retroactive changes to a character’s sexuality, to the delight of some sectors of her readership, and the horror of others.

You can, perhaps, see how much fun this is in identity politics terms. Having myself been the subject of both fan fiction and fan art of an eroticised nature (thanks, anime fans), I can’t say it bothers me, although it rarely impacts on my daily life. Then again, it isn’t being crowd-funded and distributed commercially to millions – it is hard to get annoyed about an audience in the mere dozens. Gene Roddenberry might have turned a blind eye to the existence of amateur Kirk/Spock erotica, although he never lived in a time when such things might crop up unbidden on his Instagram feed of a Wednesday morning – the rise of the internet has allowed an “exponential” increase in the power of infringements. Authors do have moral rights, which to a certain extent, allows them to impose their own sense of morality into how their material is used. This seems to be a recurring issue, for some reason, in the world of long-running vampire sagas where both Anne Rice and Laurell K. Hamilton veered suddenly off their earlier presumed courses, splitting their fandoms into supporters and opponents, the latter ready to cite a notional “doctrine of lapse” that desired to rewrite the stories for themselves.

Many authors’ aversion to fan fiction is a simple business decision to pre-empt simultaneous creation lawsuits – allowing in other writers risks accusations of plagiarism if later works resemble the creations of such third parties. But Schwabach considers the flipside: what if a “bankrupt, self-destructive or malicious content-owner” decided at some future date to pursue legal revenge against fan creators. He makes a compelling argument that some teenage girl who once imagined a date with a sparkly Twilight character might conceivably meet with a nuisance law suit in her twenties that could destroy her life savings. He argues that intellectual property owners have much to learn from the “ham-fisted” way that the music industry went after piracy, but also deals at length with the get-out-of-jail-free card provided by the concept of “parody” – which is presumably how Neil Gaiman can get away with his wonderful Narnia fanfic, “The Problem of Susan.”

Schwabach’s cases are a treasure trove of fun arguments – including a great story about a “Wombles Skip Hire” company that was sued over the name, and got to keep it. Other cases include a spat over whether someone has the write to have the words Ninja and Turtle together on a T-shirt without a licence, whether the term Ewok is in the public domain, and whether it is a crime to circumvent copy-protection protocols in order to snatch clips to use in a music parody video. A judge is forced to pronounce on whether 2 Live Crew’s “Big Hairy Woman” is a justifiable parody of “Pretty Woman,” and gets to say that: “sexual congress with nameless streetwalkers is not necessarily the stuff of romance.” It’s all part of the fun in a legal textbook that offers memorable and elucidating case studies in understanding how fan fiction interacts with professional media.

Jonathan Clements is the author of Anime: A History.