Creativity in Common: Fandom and the Ownership of Ideas
Once upon a time, creativity was a community endeavor. In an oral culture, the skill of the storyteller was what set him apart, not the characters or plots used, which all might be elements of a story the audience had heard before. Embellishments were added, plot twists conjured, characters developed—but the story was almost always based upon something known (Jenkins). While people have been telling stories for thousands of years, the idea of intellectual property is a relatively new phenomenon. In the digital age, however, it has risen to new levels of restrictions never before seen, just when the world seems to be entering a potential age of greater sharing and a secondary orality, which calls not for a strengthening of restrictions, but potentially for a new scheme all together.
The Statute of Anne, which was the first real copyright legislation, was only enacted in 1710—just over 300 years ago. Before that time, the idea of intellectual property as we now conceive of it did not exist. The Statute of Anne was enacted mostly as a response to printers and booksellers printing, publishing and selling living author’s books without their permission, “to their very great detriment, and too often to the ruin of them and their families” (The Statute of Anne). Like the United States copyright law which developed from it, the Statute of Anne was enacted to prevent such practices and give incentive for “learned men to compose and write useful books” (Statute of Anne). Seventy-seven years later, the United States Constitution, in words that echoed the Statute of Anne, granted Congress the right “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (The Constitution of the United States).
This form of copyright protection is a utilitarian scheme—the goal is to give incentives for authors to write by ensuring that no one else can profit off of their creations for a limited time. In order for books to continue to be written, 18th and 19th century statesmen agreed that authors needed to be compensated, but that such rights should be limited to the point of the least protection needed to ensure authors had an incentive to write (Boyle, 22). Monopolies were frowned upon, and monopolies over the expression of ideas even moreso than those over physical properties. This is, then, ultimately an economic argument. France, and other countries who have followed its lead, hold a different view of copyright. An author’s book is the author’s not because of some law that gives her the right to it as an incentive, but because it is a moral and natural right. I created this, thus it is mine and I have the right to control it (Boyle, 27).
Despite the fact that this natural and moral right is not the law in the United States, this idea of ownership is still prevalent, and often used in arguments for why copyright should be extended or more strictly enforced, especially by those who create expressive works. The advent of digital media and digital communication has brought this argument to the forefront of cultural discussions. One particular place the prevalence of this feeling, or argument, makes itself known deeply is in discussions of fan fiction by authors, producers and fans. Fan fiction is defined in many different ways, but it is basically what it sounds like—stories written by fans of a show, movie, book, comic or game which take the characters, plots or settings from the source material and create new stories from it. Fan fiction is generally written from love (though some people do write “hatefic” against certain characters) and is never written for profit. As one fan, Lee, states:
For me, writing fanfic is paying tribute to the creators of the character and the worlds they live in. I’m not making any profit from working in their sandbox, and I’d like to think that my work is spreading the word about their worlds. I do my best to make sure that I honor their work in mine by keeping my characterization accurate and working within canon as much as I can. (Online Interviews: thewatchmaker)
Fan fiction continues the ancient tradition of storytelling, of building upon what has come before, into the digital millennium. The main difference is that our shared culture is now a media culture rather than an oral one, a culture in which the characters, plots and stories we know are those of our favorite TV shows and movies (Jenkins). As a distinct, recognizable medium, fan fiction really started with the fanzines of Star Trek in the 1960s (Hale). These fanzines were written and published by fans, then distributed through the mail, flying under the corporate radar. However, with the advent of the World Wide Web, writers and editors could publish and distribute fan fiction much more quickly and cheaply to a wider audience, and the corporations no longer turned blind eyes (Jenkins).
While many people approach the idea of fan fiction from a legal point of view, as necessary to protect a copyright that could otherwise be lost (which relates more to trademark than copyright law) the more heated arguments are made when fan authors do something with characters that authors of the original works may disapprove of, whether that includes writing erotica or changing up canon pairings, or writing “mirror-verse” scenarios with all characters the opposite of how they are in canon (a device often used in Star Trek). The argument then becomes not, “how dare you infringe upon my legal right to make money off my characters” – which is very rarely a valid argument, since fan works rarely do anything to an author’s ability to make money except increase it by increasing the fan base for the original work. Instead, the argument becomes, “how dare you do something to my characters I never would have? They’re mine. No one else gets to play with them but me.” Fans, however, seem themselves as continuing a tradition stretching back into oral cultures—taking characters and ideas which have entered the public imagination (if not the legal public domain) and making stories of their own with these figures their audiences will find familiar. When they make changes, they are answering the constant question that drives all creativity, “what if?” and starting from where the author left off to try something new.
The legal arguments regarding ownership of media characters and stories are, in some ways, the easiest to untangle despite the fact that fan fiction exists within a legal gray area. While it is arguably a derivative work, and originators of works retain the sole right to create derivative works of their intellectual property (the Copyright Act states that creators have “the exclusive rights to do and to authorize any of the following: …(2) to prepare derivative works based upon the copyrighted work”), there is an equally strong argument that while a derivative work, the writing of fan fiction nevertheless could be found to be fair use (Fowler, “Rewriting TV: Fan Fiction as Fair Use”). Since I have made this argument so thoroughly elsewhere, I will not restate it here. The legal ins and outs do not speak directly to the more emotional issue of “ownership” at hand.
For those who attempt to make legal arguments, whether fan fiction constitutes an infringing derivative work or is allowed under policies of fair use, the main logical question considered for most authors, producers and fans is that of economic gain. This is appropriate given the economic incentive upon which our copyright law is based. On this point, fans and authors still sometimes differ. Fans feel that so long as they are not trying to make money off someone else’s works, but creating their art for love and fun and to participate in a community, then they have not done anything wrong, nor are they infringing upon anyone’s rights. To make their lack of ownership clear, they often include disclaimers on their stories along the lines of, “All characters are owned by X. I’m not that person. I’m just playing with them for a bit, and promise to put them back where I found them when I’m done. No infringement intended.” Authors who try and use the economic incentive argument to forbid fan fiction, however, say they feel this is not enough.
One argument made, at least as per fan fiction based upon books. is that since fan fiction is written in the same medium (text) as the original work, there is a greater risk of harm to the author. Someone might mistake the fan fiction for the original or people might decide they like the fan fiction so much, they will not bother to pay for the original source material. One writer argues, “Authors of books and stories are generally paid very poorly, however, and rely on the uniqueness oftheir charactersand settings and stories for their income. When someone offers stories about the characters and settings for free, the author’s power to charge for the work is damaged” (Ecks).
However, this is a rather disingenuous argument. The likelihood of someone stumbling across a piece of fan fiction on the Internet and thinking that it is the work of the author, or an original work, is low at best. The common practice amongst fan authors of citing the source material and giving credit to the original author makes this sort of confusion unlikely. Fans are also usually amateur authors and that difference in quality can be detected fairly easily. Fans write fan fiction because they love the source material. They are not trying to hurt the author—they are trying to keep his or her works alive, or keep interest up between books. They write to fill the gaps, not to replace the original. If I were to write a story set in Westeros dealing with the Lannisters and post it on the Internet, only an idiot would think that George R. R. Martin had suddenly started posting stories for free online under a different name. Should someone stumble upon a story I have written and not know the source material, but love my writing, inevitably they would likely seek out the source material to see what had inspired me. This potential for confusion, of course, is the reason fans include the disclaimers they do. They want to be appreciated for their works, like any artists, but they do not want to take credit for what is not theirs.
I think the disclaimers are necessary and appropriate…If I know nothing of the universe/fandom and I come across a really well-written fanfic piece that has no [disclaimer] on it, I will assume that the whole thing was made up by the person who wrote the fanfic story. It would prevent me from seeking out the original material, thus taking away from the original author’s potential income and any publicity that would be generated from my telling others of the shiny new author I recently discovered.
So, copyright laws aside, it’s a vital courtesyperformed out of respect for the owner of the source material (Interviews, “age,” emphasis mine).
Most fans would agree with this sentiment, though some are more humorous and less passionate about it. Speaking of disclaimers on fictional journals used for fan fiction and role-play, Manda says succinctly, “I’m up in the air about this. I get legally why you have to, to cover your ass but frankly if someone thinks I’m really Buffy Summers [or that Joss Whedon is posting fic on Live Journal] then they have more problems than a disclaimer can fix” (Interviews, “verdantgt”).
Speculation about the damage fans could do to an author has run rampant among so authors, but as of yet, no actual harm has ever been proven by allowing, or failing to prosecute, fan fiction authors. In fact, anecdotal evidence is high that fan fiction can actually lead new readers or viewers to the source material, thus increasing revenue for the copyright owner. Conversely, copyright holders who have attempted to go after fan fiction authors have often found that their market decreased significantly, as fandom tends to be a tightly interwoven group, and authors who do not allow fan fiction, or worse—actively seek to disallow it—often find themselves losing fans (Drewniak).
Thus, Jefferson’s arguments in favor of granting limited copyrights in order to provide incentives, but nothing else do not seem to hold in favor of the illegality of fan fiction. The Jefferson Warning, as presented by Boyle (21-22), would seem to me to argue in favor of allowing fan fiction, and copyright holders who argue against the practice as a possibility of harming their legal rights have very little evidence to stand upon. To ensure they retain rights to their works—just in case the legal arguments went toward fans—but not wanting to harm their relationships with their fans, some authors like Jim Butcher and Marion Zimmer-Bradley have set up licensing schemes for their stories and worlds, explicitly allowing fans to write fan fiction, even sometimes sharing it on the author’s website, while requiring them to include a disclaimer and acknowledging that they have no right to the story they have set in the author’s world. Most authors do not go this far, but many who do not prohibit fan fiction based on their works fall in line with Tanya Huff’s position: “Unofficially, I’m as honoured by fans wanting to play in my world as I am honoured by the people who make television shows. So unofficially, you have my blessing, knock yourselves out. Just don’t let me know about it!” (Professional Author’s Fanfic Policies).
However, even if the legal issues were ever to be completely resolved, other authors, of course, feel differently about the reasons fan fiction should be prohibited. While some authors try to make a legal argument for the prohibition of fan fiction, more of them who seek to forbid it seem to operate upon the idea of their right to control all aspects of their work as a natural, moral right. It makes sense to those of us who are artists or creators in some sense—I slaved over this novel, and I should be able to control all aspects of it. I don’t want you doing “icky” things with my characters like making them have sex, or have sex with the “wrong” person I chose to put them with. The latter—the not wanting people to do things to the characters the author would not have done—comes out in more author statements than anything else. Robin Hobb has an infamous rant on the topic, in which she decries fan fiction for inventing things the author never intended, for “fixing” the things authors intentionally left open, for filling in gaps she wanted to stay nebulous:
[T]he fan writer simply changes something in the writer’s world. The tragic ending is re-written, or a dead character is brought back to life, for example. The intent of the author is ignored. A writer puts a great deal of thought into what goes into the story and what doesn’t. If a particular scene doesn’t happen ‘on stage’ before the reader’s eyes, there is probably a reason for it. If something is left nebulous, it is because the author intends for it to be nebulous…Fan fiction closes up the space that I have engineered into the story, and the reader is told what he must think rather than being allowed to observe the characters and draw his own conclusions.
When I write, I want to tell my story directly to you. I want you to read it exactly as I wrote it. I labor long and hard to pick the exact words I want to use, and to present my story from the angles I choose (Hobb, emphasis mine).
Of course, part of every author might say this, but Hobb seems to completely miss the point of what readers do, never mind fan writers.
A writer puts their text out into the world, but they cannot control how it is received. That scene off-stage? No author can keep people from imagining what happened. No writer, or movie producer, or television director, can ever stop someone from thinking about a different ending to the story, or what would happen if their beloved character were still alive. Nor can they then stop someone from talking about these scenarios with their friends, or even from writing themselves a story about how it might have gone. What are they going to do? Ransack the notebooks, journals and computers of every one who has ever seen their movie or show or read their book? It is only when these private imaginings become public, as the Internet allows them to do so fluidly, that creators can even find out about their existence—and then they care “how dare you?” to something many others were doing without publication.
Humans are, by nature, creative beings. The greatest advances in science and literature both have come from someone asking “what if?” When curiosity and creativity is combined, magic tends to happen. Beyond this, questioning the text, asking about the things that lie between the lines is what literary scholars do as much as fans of a text. It is a field of study that far predates intellectual property. Authorial intention is almost never taken into account in literary criticism any more. Admittedly, authors may wish this were not so, but the cry of “that’s not what I meant!” reeks of a naïve understanding of the writer/reader relationship, and calls for a very passive, unengaged, unquestioning reader who can never truly become a fan. If a work does not linger with you, if you are not caught in its story, if you do not wonder about all the possibilities within it, where is the incentive to come back?
Other authors have made similarly passionate statements about their work and their disapproval of fan fiction, if not quite so long as Hobb’s rant. Diana Gabaldon, author of the Outlander series, calls fan fiction both “immoral and illegal.” Lee Goldberg, author of Diagnosis Murder and Monk tie-in novels agrees, defending his own work by claiming there are “significant differences between tie-ins (which are the equivalent of being a freelance writer of an episode of a TV series) and fanfic (which is the equivalent of stealing someone else’s work and putting your own name on it).” Anne Rice is “terribly upset” at the idea of fan fiction about her characters (Professional Author Fanfic Policies). These all contrast greatly with writers on the other side of debate, including Sir Arthur Conan Doyle who, when asked if someone writing a play about Sherlock Holmes could have him marry in it declared, “You may marry him, or murder him, or do anything you like to him” (Professional Author Fanfic Policies).
If authors feel differently about the reasons to prohibit—or allow—fan fiction, so do fans. Even amongst readers and writers of fan fiction, opinions are varied about whether writing fan fiction is a legitimate practice, or something shameful that could be, and maybe should be, stopped. Some feel that fan fiction should only be written where permission has been given by the author. Others feel that it is all right to do so long as an author has not explicitly stated that no fan fiction may be written about their work. If an author has prohibited writing fan fiction, many feel that ought to be respected, because they appreciate the author and do not want to upset them. Others, however, feel that writing fan fiction is their right, based upon the idea that stories which enter the public imagination have always been there to be reworked, and modern laws should not alter this ancient understanding and pact between storytellers. Becca gave the most passionate statement for the rights of fan fiction authors:
Let me start with a quote from Henry Jenkins, director of media studies at MIT–“Fan fiction is a way of the culture repairing the damage done in a system where contemporary myths are owned by corporations instead of by the folk.” For me there is a “deeper reason” I feel that writing fan fiction is okay than the simple question of whether or not it
“hurts the owners.” I believe 1) that it is morally wrong for corporations to be allowed to retain sole ownership of ideas long after their originators have died, and 2) that it is morally wrong that originators can sell copies of their ideas without consumers gaining any rights beyond their owning a copy of the idea. While I appreciate authors who explicitly allow fanfic under the Creative Commons umbrella, so long as the fanfic includes a disclaimer, I believe the ability to write “derivative, noncommercial fiction” should be a right that people can gain access to, not a privilege for a select few. (Interviews, beccadg)
Most fan fiction authors do not go this far, or are not willing to do so on record, but it brings the discussion back around to the question of ownership: of ideas, of expressions, of characters. Legally, the copyright owners own their works. They own their characters. These are well settled tenets of copyright law within America and most of the modern world. There is a sense for many people that this ownership goes beyond the legal rights conveyed (as expansive as they are now) to a moral right. Of course, to take that to the extreme would be to cut off any chance for scholarship or criticism. If I cannot quote portions of a book in my review, a vital part is left out. If I cannot question the motives of a character, or look for subtext in a text because the author did not spell it out for me, much of literary criticism is cut off. While Boyle acknowledges the importance of the creative commons—a point I will return to in a moment—this sort of absolute right by virtue of creation presents so many greater problems.
No matter how much someone might wish to, a producer of an expression of an idea cannot control it once it is out in the world. Imaginations will run with it, criticism will ensue, discussions will happen. If none of this does occur, then your work is likely something of a failure. Jefferson was correct in insisting that copyrights must have limits. As Boyle and Jefferson both point out, intellectual property is very different than physical property. My use of your idea does not take your idea away, or in any way harm your expression of an idea, unless I am deliberately selling your work as my own. In fact, noncommercial exploration of your idea and expression may well add to it, and alter it so that the flow of ideas—or stories—continues. As George Bernard Shaw said, “If I have an apple, and you have an apple, and we exchange apples, then you and I still have one apple. But if I have an idea, and you have an idea, and we exchange ideas, then we both have two ideas.” The same goes for stories.
There are only a limited number of plots (in the broad sense) in the world, and only a limited number of ways a story can be told. Texts speak to each other, and borrow liberally from one another. The Modernists would have been lost if they could not liberally incorporate other works into their own. As much of a masterpiece as Joyce’s Ulysses is, what would it be without Homer’s Odyssey? Fairy tales are remade and twisted all the time into new stories, or retellings of the old ones. West Side Story is just a retelling of Romeo and Juliet, which Shakespeare borrowed from somewhere else.
I am not arguing that fan fiction rises to the levels of these literary works, though some of it may be surprisingly just as well-written. But the premise upon which it is based, is very much the same. Intertextuality if pervasive throughout all of our literary history. Authors who are virulent in protecting their original creation (often popular art, which draws on an even higher level of intertextual references it sometimes seems) are deluding themselves about the sanctity of their own works. Yes, ideas can be expressed in different ways, without borrowing actual characters or settings from an author (for instance, Twilight, The Vampire Diaries and The Southern Vampire Mysteries/True Blood all deal with a girl torn between two lovers, with tensions between vampires and werewolves thrown in, but they are all their own “original” expression of this idea). But if two professional authors may compete with different expressions of excruciatingly similar ideas—and, in fact, all do well at it—where is the harm in fan authors writing work that is their own interpretation of a professional author’s idea, when no competition of ideas is involved, but the mere expression and discussion of various points of view on a story?
If an author does not want their work “perverted” by the imaginations of those exposed to it, then the author ought not put the work out to the public. Even if no one writes fan fiction about the story, inevitably everyone will have their own interpretation and their own ideas about it. Unless we want to allow complete thought control, which would be a sad state of affairs for us to sink into, no one can ever completely control their works. What I imagine about Heroes is likely very different than what someone else imagines. My perception is informed by my own interests, my own experiences, my own desires. If I write a story based upon those, it may resonate with some people, while others will wonder how I could possibly ever see something like that in the source material. In a way, then, my vision of these characters and show become truly my own. I own them, even if I can never make money off of them, because they are not something that could come from anyone else, even if the source material did. I would argue that this diversity of expression and experience is a good thing for continued creativity and expression in society.
Boyle very compellingly links the Internet and Jefferson’s ideals about the need for the freedom to share ideas. The Creative Commons licenses which many artists and writers have embraced are a step in this direction, and one I think is highly valuable. Greater protection may be needed for patents, but a monopoly for a limited time of the right to make a profit on a work (i.e. I cannot sell my Heroes novella without an official license to do so) and the requirement for people to add some sort of attribution to the original source seems all that is needed for copyright. Moral outrage should have no place in the circulation of ideas and story. If someone does not like someone’s interpretation—including the original author—they may choose to ignore it, or write a response from their own perspective. This is how we keep a conversation going, rather than shut it off and lock it up.
The multiplicity of views and ideas can only serve to spark more creativity, to bring people together in a sense of community as they read and write and share. If someone is discouraged from writing because someone might interpret their story differently than they intended, then they likely should not be writing in the first place and sending their story out to critics and reviewers. When you offer something to the public, you can only continue to exert so much control over it.
Rather than fighting a losing war, copyright holders should embrace the idea of the Creative Commons and licensing, as several have already done. Doing so does not strip them of their rights—in general, those creating derivative works still could not publish them for profit unless the author specifically allowed it. With a creative commons licensing scheme, authors are able to choose which rights to retain, which to give away, and under what terms (Boyle, 182-183). In many ways, the concept of Creative Commons returns us to the world before intellectual property ran amok, but not to a world without any intellectual property. Authors can still exert economic and some creative control, but their works are offered up as something for new artists to create from (Boyle, 183). Since authors who already authorize fan fiction have tended to do very well, and maintain good relations with their fans, and those who have engaged in wars with their fans have ended up alienating the very people they depend upon for their livelihood, this creates a win-win situation. The original creator’s livelihood is not at risk (if it ever was), but the level of their relationship with their fans and fans with each other is heightened.
As attractive as it may be to our egos, we need to recognize the idea of the Original Author as a recent invention in time, and further recognize the great wealth of previous creativity upon which artists of the past and present draw upon. Cutting this off, or as Boyle argues, locking up our artistic production and refusing to allow new artists to draw upon them for creative works of their own, will only make us a poorer culture in the end. Fan fiction is hardly the be-all and end-all of cultural possibility, but in its creation and dissemination, it speaks to the very essence of intertextual creation and the way in which we interact with the art with which we surround ourselves. When media enter into the public imagination, they become the property of all of us in many ways. While authors and artists should absolutely be able to make a monetary return on their work, they cannot seek to ensure this by controlling every aspect of their creation and denying a voice, a creative impulse, to those who love their work.
Imitation and continuation are essential human impulses, from the time we are very young. As Natalie points out, “I think it’s okay to use characters and idea from the media in a recreational way because fan fiction is essentially the extension of our imagination. As kids, we would re-enact Disney movies or other stories and we would take liberties with the plot. Fan fiction is the same thing, only written and we can share it with a multitude of people” (Interviews, Natalie). A love of sharing, a love of story—these are things that have bound people together since the beginning of time. If fan fiction helps continue that in the digital age with its strange disconnectedness, then that impulse is something all artists should embrace.
Works Cited
Boyle, James. The Public Domain. New Haven: Yale University Press, 2008. Print.
Drewniak, Julia. “Dumbledore’s Army Fighting the Power: Media Ownership, Fandom and the
Harry Potter Franchise.” Movable Type: The University of Virginia Undergraduate Media
Studies Journal. June 2010. Web. December 12, 2011.
Ecks, Michaela. “Fan Fiction, Novels, Copyright and Ethics.” Whoosh.org. 2001. Web.
December 11, 2011.
Fowler, Charity. “Rewriting TV: Fan Fiction as Fair Use.” Written for Entertainment Law,
December 2004, University of San Diego School of Law. Archived at: http://www.charityfowler.com/writing/legal/rewriting-tv-fan-fiction-as-fair-use-introduction/
Hobb, Robin. “The Fan Fiction Rant.” Originally published on author’s website, since taken
down. Now can be accessed on the Wayback Machine:
http://web.archive.org/web/20050630015105/http://www.robinhobb.com/rant.html. Web.
December 5, 2011.
Jenkins, Henry. Digital Land Grab, MIT Alumni Association Mar/Technology Review
.March/April 2000. Web.
Hale, Laura. A History of Fan Fiction, Writers University , November 2003. Web.
Online interviews with various participants in fan fiction. December 11, 2011.
Questions/responses can be accessed at: http://changehistory.livejournal.com/219286.html, http://ladyofbrileith.livejournal.com/991750.html and http://heartnmindooc.livejournal.com/1204144.html (though this one is a locked community and may not be accessible).
“The Constitution of the United States,” Article I, Section 8, Clause 8.
The Statute of Anne. April 10, 1710. The Avalon Project. Yale Law Library. Web. December 12,
2011.