Fan Fiction: Drawing the Line Between Copyright and Fair Use

Over the years, I’ve heard the term “fan fiction” several times, never quite understanding it and what it encompassed. I’m not a big fan of science fiction and fantasy or comic books, which are the primary genres that inspire fan fiction. However, as an author myself and someone in the publishing and book marketing business, I do take copyright laws seriously. One day I was having a conversation with an author who told me he liked to write stories using characters from “Star Wars,” which he published on his website. When I asked him, “Isn’t that a violation of copyright?” he replied, “Not if it’s fan fiction.”What makes “fan fiction” exempt from being a form of plagiarism and copyright infringement? First, let me begin with a definition of “fan fiction.” There are many out there, but after looking at several websites, I think Wikipedia has the best definition. It defines fan fiction as “a broadly-defined term for fan labor regarding stories about characters or settings written by fans of the original work, rather than by the original creator. Works of fan fiction are rarely commissioned or authorized by the original work’s owner, creator, or publisher; also, they are almost never professionally published. Because of this, many fan fictions written often contain a disclaimer stating that the creator of the work owns none of the characters. Fan fiction, therefore, is defined by being both related to its subject’s canonical fictional universe and simultaneously existing outside the canon of that universe.”What interests me about this definition is the statement that fan fiction is “never professionally published.” By that term, I take it to mean that someone who is borrowing J.K. Rowling’s characters from the Harry Potter series is not going to write his own Harry Potter book and get a major publisher like Random House or Alfred A. Knopf to publish it. But what is considered “professionally published” today is also hard to define. If the person self-published the book and decided to sell it online, wouldn’t that be a copyright infringement? I believe it would be if the fan fiction author is receiving income from the book sales. But what if the story were published in a non-commercial work such as a free online ezine that derives its income from selling ads? Then the lines get grayer. In my opinion, the only truly acceptable form of publication for such a work is one where neither the author nor the website derive any form of profit from the work-including sales of ads. The piece should be written solely for the author’s entertainment and that of his or her readers.Numerous legal cases have arisen over copyright infringement when books have been published using other people’s creations. A friend recently read the newly published “Margaret Mitchell’s ‘Gone with the Wind’: A Bestseller’s Odyssey from Atlanta to Hollywood” by Ellen F. Brown and John Wiley (He highly recommends the book to anyone who wants to know about the trials and tribulations involved with being an author). When Mitchell published her blockbuster novel in 1936, she didn’t have to worry about people posting stories about her characters online, but she had to fight several times against people writing sequels, creating plays based on her novel, and even using her characters in advertising. She and her heirs have had to renew the copyright to “Gone with the Wind” and ultimately authorize sequels to the novel before other people took liberties to create their own sequels. Since the copyright on “Gone with the Wind” has expired in Australia, an unauthorized sequel by an American author is available for sale in that country. In addition, numerous popular classics such as the novels of Jane Austen and the Bronte sisters have seen countless sequels and spin-offs appear for their books. One wonders how Jane Austen would feel about the zombies and vampires being introduced into her storylines. The authors of these sequels and even many readers will say it’s all in good fun and point out that the copyrights on these novels have long since expired, but that said, is it respectful of the author to reinvent her characters?Some authors are fine with their fans writing fan fiction, especially when it’s limited to short works published on websites without any commercial or financial payoffs. And yes, there is a degree of feeling flattered and honored and that you have succeeded as an author when you inspire other people to love your story so much that they want to continue the story for themselves. But nevertheless, is it really such a good idea to write fan fiction? We all have books we love, books where we wish the author would write a sequel so we can find out what happened to the characters after the book ended. However, Margaret Mitchell purposely left “Gone with the Wind” open-ended so readers would wonder whether Scarlett ever would get Rhett back. Mitchell even said she could end the book no other way, and if she had ended the book differently or written a sequel, she figured her readers wouldn’t have been satisfied with it anyway. Even the two sequels that Mitchell’s estate finally authorized (and they are fairly good books considering) are questionable in terms of fulfilling readers’ passion for learning what became of Scarlett and Rhett. In fact, we would be hard-pressed to find any book (sequel, prequel, or spin-off) not written by the original author that satisfies many, much less the majority, of readers.I’m not going to cover all the legal implications of fan fiction and copyright violations or fair use laws in terms of borrowing other authors’ characters, but it’s fair to say that fan fiction itself only allows for moderate originality. Various authors and filmmakers have approved or fought against fan fiction. J.K. Rowling has been fine with it; George Lucas has asked only that his characters are not portrayed in sexual ways in fan fiction; Anne Rice has requested that her fans not write about her characters.As far as I’m concerned, if you want to write about someone else’s characters for your own amusement, that is fine, as long as you are not profiting off of it. But if you aspire to being a writer, isn’t focusing on fan fiction doing yourself a disservice? Children who want to create stories about Cinderella or other fairy tale characters may ultimately become creative and more imaginative through the process, and for children, it is harmless. However, an aspiring writer would be better off to create his or her own characters, plots, and storylines. Perhaps in the beginning, it is hard to create a character as fascinating as Scarlett O’Hara or Harry Potter, but in the long run, your efforts will be worth it. Scarcely any writer ever became famous creating books that used other people’s characters, and even if he or she did, the author never became as famous as the person who initially created those characters.Judy Garland, who has had plenty of impersonators of her own, once said, “Always be a first rate version of yourself, instead of a second rate version of somebody else.” When you weigh all things, beyond copyright infringements and fair use issues, the bottom line is that any writer worth his words is going to be able to create his own characters, or her own storylines and plots. Why settle for being a second rate author who borrows from others when you can be a first-rate author? Who does fan fiction really harm? Perhaps it’s the author who settles for writing it.