That's All Folks

Well, this is the end. I'd like to thank you for taking the time to view my blog and for joining me in my discovery of fan fiction. I've learned a lot, and really so much more than I had expected.

When I chose this topic, I had an extremely limited amount of knowledge on fan fiction and had the impression that fan fiction was relatively new and being written by uber geeks who seriously needed to get a life. I also mistakenly thought that fan fiction was plagiarism or referred to those people who leaked authors' works on to the Internet before they were released. What I found was a long history, a rich subculture, and a lot of writers--some talented, some not--who write because they either highly admire the original works and/or because they feel the story can be told better--often to better represent certain genders, races, or classes.

It was interesting learning how respected writers view fan fiction and I'll be interested in keeping an eye on these two opposing camps in the future. I also found Lee Goldberg's blog intriguing. While I don't agree with him on every point, and in some ways I find him a hypocrite, he is staunch in his beliefs as well as fun to read and I plan to check in with his blog every so often.

I made a new friend called Mary Sue and I learned a new word. Archontic. Your assignment is to use archontic in a sentence today. I learned that Slash does not mean horror and does not refer to the guy from Guns & Roses.

I also learned more about copyright law and how it applies to fanfic, especially in regards to parody. However, I do realize that I barely scratched the surface regarding copyright and for that matter, the topic of fan fiction. While I feel I have a much better understanding of copyright upon finishing this class, one thing I learned is that it is very ambiguous--kind of like nailing Jell-O (insert copyright symbol) to a wall, to borrow a saying from Pat Farney. What makes it more interesting and a little more understandable is seeing it applied to real life--or at least to fan fiction--and I will be interested to see what direction it follows in the future.

Looking to Fanfic's Future

Fan fiction has existed and evolved for hundreds of years. It will be interesting to see what the future holds for this genre.

Access: In the past, fan fiction had relatively low circulation and was distribution was either by word of mouth, hand to hand, or through the postal system. The Internet has certainly changed this and has resulted in fanfic being available to anyone with an Internet connection. This includes children, housewives, senior citizens, and grad students who would rather peruse anything on the web in an attempt to avoid finishing their projects :). In other words, access to fanfic is not limited to just fans anymore.

Quality: While the Internet has increased access to fanfic, only time will tell if the Internet will have a positive or negative influence on the quality of fanfic. While some fanfic is high quality, there is also a lot of really bad fanfic out there. Trust me--I've read some. My favorites were two fanfic stories from the same author based on Brokeback Mountain, one entitled "I'm Drunk" and the follow-up, "I'm Sober". Many of the websites that exist allow anyone to post anything without any editing or administrative review. Some experts believe that the mainstreaming of fan fiction may raise standards, bring more educated people into the arena, and encourage some voluntary gatekeeping with input from professional writers or editors.

Acceptance: The influx of fan fiction on the Internet has helped mainstream it, and acceptance of fan fiction is already on the rise. Improved quality will also help these acceptance levels. While certain authors (Anne Rice) deride it, approval by J.K. Rowling and Anne McCafferty--as well as Meg Cabot's admission that she formerly wrote fanfic--may do more to help acceptance not only by the general public but also by original authors.

Legal Issues: To date, there have been very few instances of lawsuits regarding fan fiction. Lots of cease and desist letters, but not really many court cases. This seems to be because by definition, fan fiction is a not for profit activity. In my graduate studies, I've heard a lot about self-publishing. Perhaps it's just new to me, but it seems to be gaining in popularity lately. If fanfic writers find it simpler to be published, it would seem that the "not for profit" defense will fly out the window, original creators will feel more threatened, and ultimately, this genre will see an increase in legal action.

Does Fan Fic=Fair Use?

In Complete Copyright: an Everyday Guide for Librarians Russell advises that "one must make a fair use determination based on sound judgment and the careful consideration of the situation at hand". In this respect, fan fiction is no different from any other creative work. There are no bulk judgments or sweeping generalities but rather, each case must be examined individually. Harris also warns that people looking for a definite yes or no answer may dislike the ambiguous nature of fair use and furthermore, she states that "fair use cannot be reduced to a checklist". However, two pages later she supplies readers with exactly that--yes, a checklist.

This checklist is based on the four factors of fair use found in Section 107:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

While fanfic is generally not used for educational purposes, it is also normally not of a commercial nature. The checklist mentions parody as favoring fair use, and as I have discovered, fanfic is generally believed to meet the requirements of a parody. Fanfic authors as a rule do not profit from the use and also give credit to the original author. One more item on the checklist favoring fair use is "restricted access (to students or other appropriate groups". While it might be a stretch, I think this also applies to fanfic to some degree. While fanfic may be out on the Internet for anybody to find, usually it is sought out and found by an appropriate group--that being fans of the fanfic genre.

2. The nature of the copyrighted work.

Justifying this portion of the checklist is a little tougher. Under "opposing fair use" both highly creative work and fiction are listed. Fanfic usually is based on fiction and while "highly creative" is a subjective view, I think this could be applied to many of the works targeted by fan writers. On the other hand, published work is listed under the considerations for favoring fair use, and again, fanfic normally derives from previously published works.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

In order to be a parody, fan fic must borrow from the original work. Of course, it may be easy to argue that it is not fair use if a large portion or the whole work is used and it seems to me that most reasonable people would agree with this and find these digressions easy to spot. Borrowing a small quantity is seen as favorable and is also fairly commonsense. What is more ambiguous is whether or not the portion used is central to the work or the heart of the work. There seems to be a lot of room for disagreement on this point and will likely come down to individual perceptions.

4. The effect of the use upon the potential market for value of the copyrighted work.

As shown in Tushnet, fans strongly believe that their works, being noncommercial, are not harmful on market effect, and if anything, may add value for the original work by peaking interest and increasing loyalty. However, one of the bullets for opposing fair use is "you made it accessible on Web or in other public forums" and it would be difficult to deny that the Web is the preferred distribution medium of fanfic.

In conducting this research, it seems that original creators and fan fic writers have reached a middle ground. As long as fan fic is noncommercial (and some authors also stipulate non-pornographic)these derivations are likely to be left happily alone. The real debate comes in to play when fan fic writers are looking to profit from their work. Again, those cases are looked at individually, not as a whole, and sometimes they lose, and sometime they win. I believe the Wind Done Gone case ended favorably for Randall mainly because she had Houghton Mifflin on her side. While quite a bit of fan fic truly is not good writing and doesn't deserve to see the light of day, the everyday fan fic writers and the self-publishers generally just do not have the funds and resources available to fight the big guns, which is why so few of these cases have ever made it into court or the spotlight.

Righting a Wrong by Writing a Parody

Several of the articles I've read while exploring the topic of fanfic have mentioned the book Wind Done Gone so I decided to investigate this title a little further.

Wind Done Gone is a parody of Margaret Mitchell's Gone with the Wind that was written by Alice Randall in an attempt to combat the outright racism she felt was conveyed in Mitchell's book. Not surprisingly, the release of this book was delayed due to a lawsuit between Mitchell's trust and Houghton Mifflin, the publisher of Randall's work. This was eventually settled when Houghton Mifflin agreed to make a sizeable donation to Moorhouse College.

Is this a case of fanfic? One could argue that it is the exact opposite of fanfic, because while Randall did love Gone with the Wind when she read it as a child, she felt the portrayal of African Americans was extremely damaging. However, Randall's main character Cynara could be seen as serving as a Mary Sue, rising above to fight the stereotypes of the original work. What is also unique about this work and this case is that Randall had the support of a major publisher (as opposed to attempting to self-publish) as well as the backing of several well-respected African American authors, including Toni Morrison.

If you're interested in learning more about this book and the case, I've included some links for Houghton Mifflin and the Freedom Forum here and under the Web Links portion of my blog.

From the Fanfic Writers' Perspective

Rebecca Tushnet's 2007 article Payment in Credit: Copyright Law and Subcultural Creativity is a well-written and engaging paper that among other things, offers readers a glimpse inside the minds of fanfic writers.

Tushnet believes that most fanfic, particularly that distributed via the Internet, would be classified as fair use under U.S. Copyright Law, stating that "fan concepts of what makes their creative works acceptable, not immoral, or not unfair resemble American copyright law's fair use principles".

Fans emphasize that their works are not for profit as well as being freely distributed. Attempts to derive from this norm, such as self-publishing, are largely condemned by "true" fanfic writers. I think this is an important distinction. It seems there are two camps of fanfic writers. On one hand, you have the fans that want to share their creations with a fellow community of fans-not the whole world-simply because they share a common love or enjoyment for certain characters or storylines. Their work is non-commercial, and therefore, not taking unfair advantage of the original work(s). On the other hand, you have the fans looking to turn a profit, eager to show the world that they can take a story and either keep it going or make it better (or just as good as) than the original. This is not to say that the "for-profit" fans are always in the wrong or necessarily defying copyright laws, but bringing money into the fanfic arena does appear to set these writers up for a higher level of scrutiny, and possibly rightly so.

Fanfic creations also require the addition of new material, thus creating an original product. Tushnet remarks "fans assert that their own creative contributions turn fan fiction and fan art into something new over which copyright owners can exert no veto. Especially given that mass media creations are designed to engage us, fans reason, it is fair to respond creatively to them". That has been a point of mine since early in this blog. A goal of books, movies, tv shows, etc. is to become popular, to attract fans, to want people to think and care about the presented media. Success depends on fans and fans should be able to express themselves within reasonable limits.

Regarding market effect, Tushnet says "fans argue, is at least not harmful and may actually help sales of authorized works by increasing loyalty to the source. Fan works,in part simply because they are not canonical, cannot substitute for the official versions; they can only whet the appetite for more". This seems realistic. First, if the fanfic cannot be bought, it shouldn't have any market effect. Secondly, beause fanfic is disseminated via the internet, I think it's fair to compare various fanfic sites to other social networking sites, such as Facebook or LibraryThing. Contributors write about what interests them, which make spark the interest of another member of the site. I have a friend on Facebook who had no interest in reading the Twilight series until several other members remarked on how much they enjoyed them and now, this friend has read all four books. It's reasonable to expect that the same scenarios could occur on fanfic sites and ultimately improve sales of the original work.

Regarding the amount of content borrowed, Tushnet argues that there is no limit, as long as the fanfic writers add value, which she says is what matters to them. "Good characterization, seeming true to the original, is usually valued, but that characterization has to be revealed by putting the characters in new situations, adding richness and nuance to the official versions. The borrowing serves as a backbone or framework". As discussed in my "Mary Sue" post regarding parodies, the original work must be referenced for the imitation to occur.

One final important piece of information I took away from this article was learning that fans are against plagiarism, which Tushnet describes as "one of the most serious offenses against the fan community". Before I educated myself on fan fiction,I thought that fan fiction meant plagiarism, which I now know is not the case. Fans want peer recognition, which of course ties in with the other points made; non-profit, not effecting the original market, and not borrowing word for word.

Reading this article left me with a healthy respect for fanfic writers, as they appear to operate under a fairly fixed set of rules and moral compass.

More Background: Archontic Literature and a Little Irony

In Chapter 1 of the anthology Fan Fiction and Fan Communities in the Age of the Internet contributor Abigail Derecho introduces readers to the concept of archontic literature, which she says is "a term borrowed from Jacques Derrida's definition of archives as ever expanding and never completely closed". Derecho states that "an archontic text allows, or even invites, writers to enter it, select certain items they find useful, make new artifacts using those found artifacts, and deposit the newly made work back into the source text's archive."

Per Derecho, since at least the 17th century, archontic literature has been a favored genre of writers belonging to "cultures of the subordinate", which includes women. She further posits that "fan fiction, too, is the literature of the subordinate, because most fanfic authors are women responding to media products that, for the most part, are characterized by an underrepresentation of women". Further tying the two labels together, she states that "historically, writing archontic literature has been a risky undertaking for women, and this is as true of contemporary fanfic authors today as it was for the first published women authors. Today, women who write fan fiction write under threat of legal prosecution".

Throughout my current research, I've discovered that the majority of fan fiction, especially the slash versions, are written by women. Are they consciously trying to properly represent their gender? At this point, I'm still far from an expert on this subject and it would take much longer than the four week span of this course to completely explore the psychoanalysis surrounding this topic. However, Kustritz (2003)also asserts that slash fiction communities "are made up almost exclusively of overeducated but underemployed heterosexual women who are oppressed not only by patriarchy but by their employment status".

I promised irony, so here it is. The following statement is posted on Derecho's blog regarding a reference she had previously made to the essay I just discussed: "I've just been notified that due to the fact that the publisher owns the copyright, I have to remove the text of the essay from this LJ".

Mary Sue Saves the Day! A Reasonable Argument for Fair Use

As briefly explained in an earlier post, Mary Sue is a generalized term used to represent a character, who may have played a minor or supporting role (if any) in the original work, but in the resulting fanfic, is elevated to the starring role of hero(ine).

The name Mary Sue refers to a character of the same name that first appeared in a 1974 Star Trek story written by fanfic author Paula Smith. Lieutenant Mary Sue took the helm of the Enterprise in Smith's work 20 years before a female would do the same in any official/authorized Star Trek tale. Thus, the name was coined to represent a character with superlative and often, non-typical qualities. As Chander and Sunder (2007) put it, "Mary Sue has since come to stand for the insertion of an idealized authorial representative in a popular work. Derided as an exercise in narcissism, Mary Sue is in fact a figure of subaltern critique, challenging the stereotypes of the original".

Chander and Sunder offer a thorough explanation of why fanfic and Mary Sues in particular constitute parodies, and why parodies constitute fair use, refering to Supreme Court's remarks in the Campbell case: "Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination". However, they also caution that "While parodies by their nature require some amount of borrowing in order to evoke the original,"' the question of how much is too much is one that can only be determined in a particular context. For example, a Mary Sue masquerading as the canon work would likely go too far".

One interesting parody case was that of Campbell v. Acuff-Rose Music, Inc. 2 Live Crew parodied the popular Roy Orbison hit Oh,Pretty Woman and did credit Orbison and co-writer William Dees as the authors. However, they still were sued for copyright infringement. While the district court found that 2 Live Crew's parody was within the scope of fair use doctrine, it was reversed in appeals, citing excessive borrowing and the fact that the song was commercial in nature. Finally, the case went to the Supreme Court which basically used Section 107's four factors fair test use to determine that the parody was in fact, fair use.

The authors of this article also address the fact that most Mary Sue stories are not written with the intent of earning a profit, but even if they were, they note that "Mary Sues can be commercial and still be fair. Indeed, the history of fair use is replete with commercial uses". Furthermore, "Mary Sue works are not likely to supplant the market for the originals. Rather,they are likely to serve a different market of specialized consumers who identify more closely with Mary Sue versions than with dominant versions. If part of the market for the original disappears because the Mary Sue exposes the original's prejudices, that is not the type of adverse effect on a market for which the fair use calculus should account".

I found the parody explanation quite helpful in understanding fair use as applied to fanfic. While I think the general connotation associated with parody is a humorous remake, the most basic definition would simply be imitation, and as noted, the original work must be referred to in order for imitation to occur. As for Mary Sue's, even if they did appear in the original work in some capacity, by their definition, by the time these characters resurface in the resulting fanfic, they have been thoroughly transformed, and thus, original and unique.