Friction Over Fanfiction
Jul. 14th, 2008 09:52 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
shadowkatThis article came to me, courtesy of my pal, Wales, ironically enough, since she isn't into nor to my knowledge has ever read any - she knows about it - because I've bent her ear on many an occassion regarding my own increasingly mixed feelings regarding the topic. [ie. I secretly adore the concept of fanfiction, but feel incredibly quilty about it - one the many drawbacks of a background in copyright law, I suspect.] Also very odd timing - since I'm once again finding myself drawn to fanfiction, and feel an increasing desire to write some. I desperately want to write a Doctor Who/River Song story. Or at the very least read a Doctor Who/River Song tale. Moffat peaked my interest. Considering the only fanfic I've read or written as an adult is Buffy or Angel related, this is a major switch.
At any rate the article concerns Canadian and US copyright law regarding "Fan-Fiction", and surprised me by stating that US law is actually more permissive. Canadian Law apparently conveys a moral ownership right to the author that is not conveyed through US copyright law.
Here's a few snippets:
This bit - I particularly adore and sort of agree with:
Henry Jenkins, author of Textual Poachers: Television Fans and Participatory Culture, argues that the impulse to write fan fiction is no different from the creative impulse driving any other narrative genre. It is part of a fundamental human need to tell stories, part of a “shared cultural tradition” dating from Homer onwards. According to Jenkins, the works on which fan fiction is based serve for fan communities the same purpose as myths and folklore served in earlier times, as a source of shared references having instant recognition in that community and a source of raw material for fans’ own creative works. Contemporary web culture is, he says, the traditional folk process working at lightning speed on a global scale.
The following is the bit that surprised me. While I knew that international copyright law, specifically UK (English), and French, are far more stringent than US - I did not realize Canada was - which was dumb, considering Canada is more or less governed by some of the same principles as British Law. (I knew that UK and most of the European Union Countries were - because that's one of the reasons why the Sony Bono Copyright Extension Law got passed - to enable the US publishing companies to compete in foreign markets and be permitted to join the World Copyright Act.)
Arguing that fan fiction is fair within the Canadian concept of fair dealing is tough. Unlike the open-ended American concept of fair use, fair dealing is defined by a specific list of purposes: criticism and review, research and private study or news reporting. Of these, only criticism and private study are even conceivable fits for fan fiction.
And here's the interesting bit about "the moral rights of the author" - which to my knowledge does not exist under US Copyright Law, but does under Canadian:
there are the author’s moral rights to consider. The US analysis of fan fiction makes barely a passing nod to moral rights. No wonder: in the US the notion of moral rights is fairly slight. (And a media corporation cannot have moral rights; it’s strictly a personal right.) But in Canada, and much of the rest of the world, an individual author has the moral right both to be credited as the author (or to remain anonymous, if he or she chooses) and to have the integrity of the work protected. That integrity is infringed if the work is, to the prejudice of the honour or reputation of the author, distorted, mutilated or otherwise modified, or associated with any product, service, cause or institution.
Here's the link to the article:
http://lrc.reviewcanada.ca/index.php?page=Friction-over-Fan-Fiction
And it's by a copyright attorney named Grace Wescott, who is the current Vice Chair of the Canadian Copyright Institute and a fan of fanfiction. (which makes me feel better about my own quilty love of the medium).
The friction the author discusses is similar to the friction I feel myself over the topic - where do we draw the line between the rights of the original author and our rights to create stories from their creations? Is it permissible to create something that could cause a reader to look negatively upon the original work because they've confused the fanfiction representations of the characters with the original ones? (ie. a fanfiction of Hagrid as a Sadomasochist causes a reader to not wish to read the Harry Potter series). Or what if the original writer comes up with an idea that a fanfic writer came up with first? Or worse still the potential loss of profit to the original creator, due to the ability of fans to obtain access to stories for free via the internet? Grace Wescott states that its a balancing act. Because there are also positive outcomes in regards to fanfiction - including increased interest in the original work. She states this all much better than I have, by the way.
For myself? Fanfiction has - since I discovered it online in 2001 - scratched an itch. A desire for more of characters or stories than I was getting via just one medium. And when I was a child or adolescent, I wrote fanfiction - in my head mostly - about the tv shows and movies I was invested in - Star Wars, Indiana Jones, and Battle of the Planets. I even acted in a parody of Indiana Jones in high school entitled Idaho Jones - starring a female archaeologist (not me). Parodies are considered fair use. By the way the only fandoms she references are the more widely known ones - "Trek" and "Harry Potter", but she does a great rundown of fan fiction types, see here:
Social scientist Camille Bacon-Smith, in her book Enterprising Women, identifies a number of sub-genres beyond slash which give a good sense of fan fiction’s diversity. Sub-genres include mpreg (where a man gets pregnant), deathfic (where a major character dies), curtainfic (where the characters, typically a gay male pairing, go domestic and engage in such comfortably bourgeois exercises as shopping for curtains together), and AU (alternative universe, where the characters are displaced into an entirely new fantasy setting). Sexually explicit sub-genres – often tagged as ‘kink’ or ‘with plumbing’ – include PWP (porn without plot or ‘Plot? What plot?’) and BDSM (bondage and discipline, dominance and submission, and sadomasochism). And universally deplored as the worst cliché in the genre is the Mary Sue story, in which the fan writer writes her thinly-veiled self into the plot. ‘Infinite diversity in infinite combinations’ is fandom’s abiding motto.
At any rate the article concerns Canadian and US copyright law regarding "Fan-Fiction", and surprised me by stating that US law is actually more permissive. Canadian Law apparently conveys a moral ownership right to the author that is not conveyed through US copyright law.
Here's a few snippets:
This bit - I particularly adore and sort of agree with:
Henry Jenkins, author of Textual Poachers: Television Fans and Participatory Culture, argues that the impulse to write fan fiction is no different from the creative impulse driving any other narrative genre. It is part of a fundamental human need to tell stories, part of a “shared cultural tradition” dating from Homer onwards. According to Jenkins, the works on which fan fiction is based serve for fan communities the same purpose as myths and folklore served in earlier times, as a source of shared references having instant recognition in that community and a source of raw material for fans’ own creative works. Contemporary web culture is, he says, the traditional folk process working at lightning speed on a global scale.
The following is the bit that surprised me. While I knew that international copyright law, specifically UK (English), and French, are far more stringent than US - I did not realize Canada was - which was dumb, considering Canada is more or less governed by some of the same principles as British Law. (I knew that UK and most of the European Union Countries were - because that's one of the reasons why the Sony Bono Copyright Extension Law got passed - to enable the US publishing companies to compete in foreign markets and be permitted to join the World Copyright Act.)
Arguing that fan fiction is fair within the Canadian concept of fair dealing is tough. Unlike the open-ended American concept of fair use, fair dealing is defined by a specific list of purposes: criticism and review, research and private study or news reporting. Of these, only criticism and private study are even conceivable fits for fan fiction.
And here's the interesting bit about "the moral rights of the author" - which to my knowledge does not exist under US Copyright Law, but does under Canadian:
there are the author’s moral rights to consider. The US analysis of fan fiction makes barely a passing nod to moral rights. No wonder: in the US the notion of moral rights is fairly slight. (And a media corporation cannot have moral rights; it’s strictly a personal right.) But in Canada, and much of the rest of the world, an individual author has the moral right both to be credited as the author (or to remain anonymous, if he or she chooses) and to have the integrity of the work protected. That integrity is infringed if the work is, to the prejudice of the honour or reputation of the author, distorted, mutilated or otherwise modified, or associated with any product, service, cause or institution.
Here's the link to the article:
http://lrc.reviewcanada.ca/index.php?page=Friction-over-Fan-Fiction
And it's by a copyright attorney named Grace Wescott, who is the current Vice Chair of the Canadian Copyright Institute and a fan of fanfiction. (which makes me feel better about my own quilty love of the medium).
The friction the author discusses is similar to the friction I feel myself over the topic - where do we draw the line between the rights of the original author and our rights to create stories from their creations? Is it permissible to create something that could cause a reader to look negatively upon the original work because they've confused the fanfiction representations of the characters with the original ones? (ie. a fanfiction of Hagrid as a Sadomasochist causes a reader to not wish to read the Harry Potter series). Or what if the original writer comes up with an idea that a fanfic writer came up with first? Or worse still the potential loss of profit to the original creator, due to the ability of fans to obtain access to stories for free via the internet? Grace Wescott states that its a balancing act. Because there are also positive outcomes in regards to fanfiction - including increased interest in the original work. She states this all much better than I have, by the way.
For myself? Fanfiction has - since I discovered it online in 2001 - scratched an itch. A desire for more of characters or stories than I was getting via just one medium. And when I was a child or adolescent, I wrote fanfiction - in my head mostly - about the tv shows and movies I was invested in - Star Wars, Indiana Jones, and Battle of the Planets. I even acted in a parody of Indiana Jones in high school entitled Idaho Jones - starring a female archaeologist (not me). Parodies are considered fair use. By the way the only fandoms she references are the more widely known ones - "Trek" and "Harry Potter", but she does a great rundown of fan fiction types, see here:
Social scientist Camille Bacon-Smith, in her book Enterprising Women, identifies a number of sub-genres beyond slash which give a good sense of fan fiction’s diversity. Sub-genres include mpreg (where a man gets pregnant), deathfic (where a major character dies), curtainfic (where the characters, typically a gay male pairing, go domestic and engage in such comfortably bourgeois exercises as shopping for curtains together), and AU (alternative universe, where the characters are displaced into an entirely new fantasy setting). Sexually explicit sub-genres – often tagged as ‘kink’ or ‘with plumbing’ – include PWP (porn without plot or ‘Plot? What plot?’) and BDSM (bondage and discipline, dominance and submission, and sadomasochism). And universally deplored as the worst cliché in the genre is the Mary Sue story, in which the fan writer writes her thinly-veiled self into the plot. ‘Infinite diversity in infinite combinations’ is fandom’s abiding motto.
