The complex legal grounds for commercial fanfiction | The Pixel & Page

?Good writers borrow. Great writers steal.? -Unknown

For thousands of years, remixing has been central to cultural development. Music, literature, visual art, spoken-word stories, religious texts, legends, history and even news have borrowed heavily from each other, and from great works that came before. Stories and parables, especially, have a long history of one hero, world or comic character used to great effect by multiple writers and storytellers.? Only since the advent of modern copyright has such borrowing, sharing and sampling been seen as a commercial and artistic threat. Works created as late as 1920, also known as public domain works, still thrive under the regime of intellectual and artistic freedom. The growth of the Internet promises a much wider distribution of public domain works than ever before, and a cultural renaissance involving these works is anticipated and welcome.

However, all of the ?great works? written in our lifetime?stories that, while not always reaching the height of quality, are pop culture touchstones that connect almost everyone?have so far been left behind in the changing world of copyright and intellectual property. Star Wars and Stark Trek, unquestionably influential and important, are still making their creators and corporate re-creators plenty of money, but it is assumed that other writers and artists are forbidden to create using these characters. Same for The X-Files, Transformers, Sex and the City, The Da Vinci Code, etc.? Same for almost every story written since 1920, even if the creator/s are dead or the property long abandoned.

So far the legal issues surrounding the public sale of fanfiction and fan art have been assumed to be settled law, and has stood relatively unchallenged in court. Cases of plagiarism are common enough, of course, and such ?writers? deserve their losses in court and the public ridicule that often follows. Works that serve as unofficial fan encyclopedias (e.g. The Complete Unofficial Twilight Companion, or Writers Talk About ?Ender?s Game?), detailing ?facts? about the work in question, are on a knife?s edge of legitimacy:? studying and interpreting a work of art is fine, but borrowing too much from the source material can land you in serious trouble. In 2008, publication of a book called The Harry Potter Lexicon was halted because it borrowed too much from author J.K. Rowling?s tremendously famous work. At the time, the defense team argued that ?Ms Rowling appears to claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction. This is a right no court has ever recognized.? The judge endorsed the overall claim of that anyone can write a reference book, but nixed the Lexicon because it contained too much original material from the Harry Potter series. However, the relationship between fanfiction and fan-made reference works is tenuous. Both are ?fan art,? but one can easily argue that a work of fanfiction contains more original material than a lexicon or companion book. In fact a work of fanfiction may not steal a single word from the author.
So what makes an individual work private intellectual property? The names of the characters, you might answer, which might make a theoretical fanfiction case about trademark and not copyright. There?s no law against writing a book about a boy wizard named Perry Hotter, a bad guy called Moldy Vort, or a wizarding school called Warthogs. In fact such a story would probably be easily defensible under current copyright law. Claims of ?fair use,? or the legal use of copyrighted works, cover parody and interpretation. But change the protagonist back to ?Harry Potter? and even if you changed nothing else?if you kept your own words and images and irreverent tone?it would be much more difficult to be successful in court. If your work was ever formally published and saw any kind of popular success, you would almost certainly be sued.

But would you lose your case? This used to be an academic question, because no reputable publisher would ever publish an unauthorized work of fanfiction. But it?s a whole new world out there (with apologies to The Little Mermaid).? In 1999, a? Russian writer named Kirill Yeskov wrote a novel called The Last Ringbearer, a retelling of The Lord of the Rings from Mordor?s perspective. The work was professionally published to critical acclaim in Russia, but only recently made its way to the United States, through a free unauthorized English translation by Yisroel Markov. The perspective of Gandalf as a dangerous fundamentalist, and the recasting of Mordor as a land of proud technological ambition generates a lot of interest, especially if you already read, and enjoyed, The Lord of the Rings.

Yes, the story includes characters and locations originally conceived by Tolkien, but it is set in a radically different part of the wonderfully detailed (and still largely unexplored) world Tolkein created. It has different original characters, draws different moral conclusions, and has at least some literary merit. While inspired by Lord of the Rings, it is almost entirely an original work of fiction. Furthermore, it?s already being distributed in the United States, so why is it that Yeskov cannot profit off the English translation of his retelling, while New Line Cinema?also a highly successful creator of fan art?can?? Does anyone believe that publication of The Last Ringbearer would cut into the Tolkein estate?s (or for that matter New Line?s) profits?? Would such a work demean or diminish The Lord of the Rings? If not, then the only person losing money in this scenario is Yeskov, who theoretically has same right to profit from a work of his creation as anyone else.

What about the rights and wishes of the author, or the author?s estate, or the large media conglomerate that bought the rights from the author?s estate?? I?m not arguing that they issues shouldn?t matter, or that the current system is entirely wrong. The real difference between Yeskov and New Line Cinema was that New Line had permission to rewrite The Lord of the Rings.? New Line could afford permission. But one of the things we?that is to say, we content creators, content consumers, and those who control access to content?must work to ensure is that there aren?t two kinds of copyright.? A profitable, vigorous and traditional remix culture for millionaires and a draconian intellectual property regime for everyone else is contrary to the original spirit of copyright.? Considering the lack of originality displayed in Hollywood, it is somewhat disingenuous to claim that nobody else in the world is legally permitted to write a hit sequel. The rights of a content creator to his work must be balanced against the fundamental rights of everyone to create art and literature that speaks in the common tongue.

At any rate, the question may soon be far beyond us.? With desktop publishing tools available to anyone, and the first independent Kindle authors making their first millions, the day of the smash fanfiction bestseller can?t be far behind. And what will content creators do then, when confronted (for example) with a foreign author operating under a different copyright law? Can they truly forbid publication in the United States? Will they launch a broad legal attack on the same fans that enjoyed the original work, reached out for more, and found it somewhere else?? Would such an attack be to anyone?s financial benefit?? Or can we look forward to a world where great works are held more loosely, permission given much more freely, and successful fan art viewed as an opportunity to share, support and promote the original work in a way that financially benefits everyone?

None of these questions are justifications for theft?if it really is theft. I am not in a position to draw moral and legal conclusions in this blog post. But as the sun sets on the age of content scarcity, content owners may soon find Middle Earth a very rough terrain to walk.

Disclaimer: I am not a lawyer?but I am a content creator (and so can you)! For more from the Pixel & Page on copyright and intellectual property, see ?5 Ways to Protect Yourself from Copyright Infringement? and ?Understanding Moral Rights.?

Source: http://thebinderblog.com/2011/07/03/the-complex-legal-grounds-for-commercial-fanfiction/

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