NOTE: This essay is aimed chiefly at newcomers to fanfiction — but veteran readers/writers of fanfic may also find certain sections and links to be of interest.
If professional publishing and media are the major leagues, fanfic — or fan fiction, to use the full phrase — is sandlot baseball and pickup basketball games down at the Y. Writers of fan fiction aren’t in the game for money; they write about their favorite characters from Star Trek or Yu-Gi-Oh or the Harry Potter books because they want more about those characters. And while some fanfic writers go on to publish fiction as pros, others remain by choice in the fanfic sandbox.
On one hand, the stories are a great compliment to the creators of the characters — it means the original storytellers have fashioned something with which readers or viewers have bonded on a deep personal level. On the other, they open a serious legal can of worms, because copyright and trademark law frown harshly on writers who borrow other people’s creative property in ways that may diminish its value.
Before (and After) the Web
In the pre-Internet world, fanfic rarely attracted much attention because it mostly existed “under the radar”, practiced by small but lively circles of fans who traded thick manuscripts by US mail and occasionally gathered for weekend-long discussions of their efforts. One might see “mediazines” offered for sale at SF conventions, but the prices barely allowed writers to recover their printing costs, and much of what was being written involved TV series long since cancelled and out of production.
The advent of online message services brought fanfic writers out into the open. CompuServe, Prodigy, and GEnie all developed communities of fanfic writers — in some cases, representing fans of popular literary universes as well as television and films. And as the Web evolved into its present form, sharing fanfic became as easy as posting text on one’s home page.
In the case of media-driven fanfic, the changes have been mostly in form rather than attitude. The corporate owners of such franchises as Buffy and Star Trek may officially frown on fanfic, but as a rule they only go after it nowadays if it’s drawn specifically to their attention and it’s outrageous enough to make the franchise look bad (most often, this happens with the more extreme forms of “slash”, the subset of fanfic that specializes in same-sex relationships).
Authors of prose fiction have been less tolerant — and understandably so. The ease of Web publishing (and desktop publishing, for that matter) puts literary fanfic in much more direct competition with its professionally published counterpart. Badly written fanfic can, some argue, more easily trash the image of an author’s original work, and better-written material can either steal “market share” from the author’s books or take the characters in directions contrary to those their creator had in mind. Even in the pre-Web world, prominent novelists including Chelsea Quinn Yarbro and the late Marion Zimmer Bradley have been involved in serious legal disputes with fanfic writers and editors. In MZB’s case, the dispute is said to have deep-sixed a substantially completed Darkover novel, and the fallout ended a series of shared-world anthologies set in the Darkover universe.
Today’s fanfiction writers are becoming stronger advocates for their own work. Most notably, the Organization for Transformative Works — whose founders include Naomi Novik, author of the immensely popular Temeraire novels — has launched a number of intriguing projects designed to preserve fans’ literary works, encourage academic studies of fanfiction, and put forth arguments asserting the legal and moral rights of fanfic authors.
Principle & Practice
Until fairly recently, the weight of authority argued persuasively that fanfiction is a legal no-no, but there’s a growing body of rhetoric on the ‘Net defending the proposition that most non-commercial fanfiction is a permitted form of fair use under existing copyright law (at least in the US). Whichever view is correct, it’s often difficult for authors to frame their objections to fanfic as matters of principle. One reason: many pros have written it themselves, though it’s rare (but not unknown) for writers to circulate fanfic openly after turning professional.
But there’s a more significant explanation. In fact, pro authors practice their own form of fanfic under a different name: “shared world” and “tie-in” fiction. The cabals of writers behind Thieves’ World, the Forgotten Realms novels, or the Wild Cards project are engaging in much the same sort of collective creation practiced by fanfic authors writing stories about Buffy Summers or Fox Mulder or Clark Kent. The lines blur even further when one considers examples such as Eric Flint’s 1632 universe or Jasper Fforde’s The Eyre Affair and its sequels. Flint’s Ring of Fire and Grantville Gazette anthologies have welcomed fan authors, and Fforde’s Thursday Next novels are strongly reminiscent of the wilder strains of “crossover” fanfic, in which characters from different fictional universes meet and interact.
From a strictly qualitative standpoint, one might reasonably argue that the better distinction isn’t between “fanfic” and “profic”, but rather between personally created works and collectively created works. This doesn’t eliminate all of the legal quagmires associated with fanfic as it’s practiced, but it does provide a model that may help both fan and pro writers better understand the creative issues involved, and it helps explain why the ethics of media-based fanfic and fanfic derived from literary sources don’t always run in parallel. Media and gaming universes are collaborative by their very nature, while most original (as distinguished from licensed or franchised) prose fiction published by individual authors is — in specific, at least — the product of the author’s individual imagination.
Conventional wisdom used to be that circulating or publishing fanfiction was a legally risky proposition, with the practitioner at constant risk of being pulled over by the Copyright Police. While there are still instances where that can happen, fanfic today is much more widely accepted. Indeed, there are media franchises in which some of the principals openly interact with fanfic creators. Sleepy Hollow co-star Orlando Jones not only reads stories about the series, but has been known to leave comments and openly recommend specific works, and the producers of Supernatural have crafted whole episodes in which fanfiction about the show’s heroes is a central plot element.
That said, the precise legal status of fanfic remains…complicated. With the standard caveat in mind — I Am Not A Lawyer, nor do I play one on Youtube, and the following is not to be construed as actual legal advice — here’s where matters stand at present:
First, writing fanfiction is not illegal in and of itself, and the copyright in any given work of fanfic belongs to that work’s creator. That said, there are practical limits on the ways the creator can exploit that copyright, and elements of trademark law may also apply — especially with respect to fanfic set in movie, TV, and other media-originated universes. As a rule, so long as a creator does not attempt to profit from his or her work, the owners of a media franchise are unlikely to make trouble.
Is it legal to circulate fanfiction? Darn good question. Some prose authors and screenwriters will tell you it absolutely isn’t; the Organization for Transformative Works will argue otherwise. As a practical matter, there’s almost no binding legal authority one way or the other — and both fan writers and commercial copyright holders have generally done their best to keep test cases out of the courts. One of the links I supply below, to C. E. Petit’s Scrivener’s Error blawg, gives the best technical analysis of the issues I’ve seen. It’s dense reading, but worth the effort for those interested in the theoretical underpinnings of the debate.
Is it legal to profit from fanfiction? Until very recently, the answer to that question has been a firm no. Now even that is beginning to change, as a handful of media franchise-holders are testing the waters by granting permission — usually under carefully controlled conditions and in specifically created ‘Netspaces — for fanwriters to market approved fanworks. The most visible of these is probably Amazon’s Kindle Worlds program, which opens a varied handful of literary and TV universes — the best known likely being TV’s Vampire Diaries series and the first generation of the old G.I. Joe cartoons — to interested participants.
In general, though, trying to sell a fanwork without first “filing off the serial numbers” (leading example: Fifty Shades of Grey, which started life as a Twilight fan novel) is still a recipe for trouble. While some authors have explicitly posted “the sandbox is open” notices on the ‘Net (Mercedes Lackey is one), others have been known to invoke lawyers when fanfic based on their work attracts their notice. Most of the serious kerfuffles in this area have involved cases where fan writers and pros chose to deliberately seek out their counterparts’ work or approval. So long as a polite separation is maintained, the chance of arousing legal wrath is probably slight, although the most conservative advice may be for fans to avoid writing in literary worlds whose creators have said “hands off!” in no uncertain terms.
The handful of links below should allow the interested novice to investigate the world of fanfic in somewhat more detail. Be warned that the quality of fanfic (like the quality of “profic”) can vary extremely widely, and that some archive sites are more carefully supervised than others. If you go spelunking in any of those I’ve listed, be prepared for anything — and remember, you’ve been warned.
Resources: Theory & Practice
Archives: Read At Your Own Risk!