In Your Dreams!

Forgive me, ladies and gentlemen, this shall be a cranky post.

In the wake of NPR's Open Source hosting Lee Goldberg, some fanwriters, and Rebecca Tushnet in a reportedly-poorly-conducted discussion about fanfiction, the debate has flared up again. And to my greater annoyance, I missed the show. (Was bogged down with a paper at the time.)

And once again, published authors are declaring on blogs far and near what they "know" about fanfiction: "It's stealing."

Apparently because being published automatically makes you an expert on the laws concerning published works.

Sorry, folks, the law doesn't work that way. Copyright Law in particular grants you specific rights, many of which are complicated and often up for debate depending on the nature of the action you object to. And you don't get to dictate how the law is applied, even in relation to your own material.

1. Intellectual Property is not the same as real property. An IP owner's rights to control and possess are far less than a real property owner's. Don't like it? Too bad. That's the way it is.
2. A Copyright does not grant an author the exclusive right to control all use of their work and ideas. The most notable exception is Fair Use, but there are other statutory exceptions as well.
3. Relating to fair use, four things are taken into account: a) the purpose and character of your use, b) the nature of the copyrighted work, c) the amount and substantiality of the portion of copyrighted work taken, d) the effect of the use upon the potential market.
4. Just because the author doesn't like how his/her work is used doesn't mean the author can prevent the use. That's why copyright law allows for uses like criticism, commentary, and parody.

I'm planning to do a much more detailed treatment of fanfiction and copyright law when I've got some time to spare at the office, to avail myself of their enormous treatise on Copyright Law. (Nimmer, how do I love thee...)

And once again, Lee is attempting to generalize all fanwriters based on one blog comment in response to his radio discussion, which argued that fanwriters have a great emotional attachment to the original work.

I generally agree with Lee's assessment of the comment itself--it's a bit much.

Let me see if I can explain it better:

The Fanfiction Community

While it's a stretch at best to say that fanwriters have a greater emotional attachment to the work their stories are based on than the people who originally created that work, it's worth noting the emotional attachment that fanwriters have to their own work.

The fanfiction world is a community of writers, readers, and fellow fans, all united by a shared love of the original work. And contrary to what the other blog comment said, we often do have deadlines. (For example, Harry Potter fanwriters who wrote "sixth-year fics" are scrambling to get them done before July 16th, lest their readership vanish in favor of the real thing.)

Writing a story, whether it's based on something else or not, creates an emotional attachment to that story throughout the process. For fanwriters, especially those who write multi-chapter tales and update them on websites chapter by chapter, this is especially true, when readers send reviews after the posting of a cliffhanger, begging for the next installment and theorizing about what comes next. Fanwriters and their readers get to know each other, converse with their regular reviewers, and debate on how well the fanfiction treats the original work. It's a fun, friendship-forming experience.

So that's my latest input to the fanfic debate. More to follow, as always...

For future reference: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html