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Fanfiction, Fan-Culture, Fan art ,And Copyright Law In popular culture, fans take up a space of significance in the consumption of art and for their interaction with it. Over the years, fans have evolved from being mere passive consumers of art to active consumers. The active participation of fans in creating secondary art forms such as fan videos, fanzines, fanart among others has become commonplace. Fanfictions, especially, inhabits a huge portion of fan-created content. Every year fans in copious amounts create and consume fan-art. The soaring popularity of fanfictions can be attributed to increased accessibility accredited to the internet.
[Image Source: gettyimages]
The impassioned increase in creation and consumption of fan-art, especially fanfictions, is indicative of the behavioural shift in how fans interact with art and its authors. The shift has further skewed the notion of “property” as it was understood earlier, and consequently ownership. Fans in the fanfiction community understand that the ownership by authors ends with the original text; however, the ownership of fanfiction is community-owned.
However, as the lines of ownership blur with the increased shift in consumption and participation of fans as consumers, many conflicts unravel. The first conflict divulges in form of authors’ reception of fanart and fanfictions. Authors like Diana Gabaldon are famous for discouraging their fans from creating fan-fictions in any form, print or digital. Diana further clarifies her stance by calling fan-fictions “immoral” and “illegal.” JK Rowling, on the other hand, considers fan-fictions as “flattering” and is known to reference them in her work. This diverse stance of authors towards fanfictions, however, does little to deter their fans from creating them. The only effect of an author’s detestation towards fanfictions is how overtly accessible fans will make them on an online platform.
The conflict, therefore, is not the approval of authors but in copyright. Fanfictions, as secondary art, pose important questions for copyright and copyright infringement. The question of whether fanfictions are illegal or not, do not lie in the black and white dichotomy. An answer in the affirmative risks the democratic values that copyright claims to protect. Stringent interpretation of the copyright law puts the marginalised creators (herein, fans) at an unfair disadvantage. Therefore, the question here demands nuance to arguments made from both sides of the claim.
The article herein will discuss at length, the significance of fanfictions in fandom subcultures. The article will explore the reasons behind the rampant increase in the creation and consumption of fanfictions. The article further, will discuss at length the conflict of copyright laws with fanfictions. The article will progress with an attempt to establish that fanfictions are transformative works and hence protected by fair-use.
Fanfictions in Fanculture
In the year 2019, Archive of Our Own, an online archive of fanworks won the Hugo award for Best Related Work. The award was unprecedented for a website, and especially for unpublished work. The award was vital for the fandom subcultures because art presented in the form of fan-fictions is widely considered a product of frivolity. The award was significant, because it encouraged a new perception of fanfictions, as a creative piece of literature.
Fanfictions are essentially fan-made works of fiction that incorporate key elements of a TV Show, Movie, Book, etc. Fanfictions precede the advent of the internet; they have existed for as long as fan-culture has been in existence. However, the usage of the term “fanfiction” can be traced back to the late 1800s and early 1900s, popularized by the Star Trek fandom. The term gained its current connotation when the fans released Spockanalia. Spockanalia was a fan-made magazine–fanzine–replete with fan created content distributed amongst the fans of Star Trek.
Nonetheless, the distribution of fanfiction remained sparse until the advent of the internet. The internet catalysed the increase in accessibility and distribution of content, the popularity of fan-fictions soared. At present, a simple search of the term “fanfiction” brings out 21.4 billion results. The sheer astonishing number nudges one to contemplate the reason why fanfictions are so popular in the fan culture.
Rebecca Tushnet, in Legal Fictions: Copyright, Fan Fiction, and a New Common Law, points out various reasons responsible for this popularity. She argues that fanfictions allow the authors and readers to create a culture of enjoyment and meaning without hampering the interests of the copyright holder. Tushnet, in a later article, Payment in Credit: Copyright Law and Subcultural Creativity, propounds that fanfictions provide both authors and readers an opportunity for education. Fanfictions act as a vital medium for aspiring writers to hone their writing skills.
However, the popularity of fanfictions cannot merely be gauged by reasons stated above in isolation. A closer look at the demographic involved in the consumption and creation of fanfictions, aids one to understand the importance in a different vein. A 2013 survey conducted by Archive of Our Own revealed that only 38% of the users were heterosexual. Nearly 80% of the users identified as women, and many of them identified with alternate sexualities.
This demographic consists of women and the LGBTQ+, which are minorities highly underrepresented in the mainstream media. In fact, the mainstream media is notoriously famous for showing these groups in bad light. The ‘disposable female’ trope and ‘manic pixie girl’ tropes are a few prominent examples of such poor representation. Fanfictions provide these minority groups to control their own narrative.
In essence, the narrative is subverted to put forward a view which is often overlooked. Fan-fictions, consequently act as a community which is created by this subversion. People from all walks of lives, sexuality, race, gender identities come together in shared experiences.
Fanfictions provides women and LGBTQ+ community to explore gender and alternate sexualities in a safe way. Kellye Ann Guinan, in Culture and Community Online How Fanfiction Creates a Sense of Social Identity by Reshaping Popular Media, states that;
“Women and queer individuals use fanfiction as a means of showing their struggles and needs by reinterpreting popular media. In this sense, television shows, movies, comics, video games, etc. all function as a shared symbolic language through which individuals can explore identities closed off to them in real life. Fanfiction is the way in which minorities can give themselves a chance at being the hero or the villain. Because it takes the same story cores and reuses them time and again, it can be seen to follow a process of folklore (3).”
Another aspect of popularity and significance of fanfictions in these groups is “reclaiming” the original text. This can be understood by the unfolding of recent events credited to JK Rowling’s tweets and blog. JK Rowling, in 2020 wrote a series of tweets and a blog which were attributed as transphobic. This led to many trans readers of the Harry Potter series to ‘reclaim’ their beloved stories by rewriting them by introducing trans characters. The reasons stated above circle back to the earlier claim of Rebecca Tushnet, that fanfictions created a culture of meaning and enjoyment between the readers and the authors. However, the issue of copyright still persists.
Fan-fictions and Copyright
Copyright laws protect original pieces of literature–published and unpublished–fixed in the form of books, movies, audiovisual sounds, choreography, etc., against unauthorized distribution and imitation. Alternatively, Copyright can also be understood from “levels of abstraction” during the creative process. Copyright is of huge importance to copyright owners because it provides them with exclusive rights to make economic benefits from their art.
The level of abstraction in creative procedure (originality) as well as the right to reap economic benefits off the art opens up a ground for dispute for fanfictions. Those who oppose the creation and consumption of fanfiction argue that fanfictions amount to copyright infringement for they are entirely based on the original work and incorporate the key elements of these universes and key characters. It is further argued that fanfictions threaten the market for the original work.
Moreover, Moral Rights empower the authors of the art against, wrongful attribution, protection of integrity, protection from distortion. These rights are inalienable and hence cannot be waived or transferred. Moral Right, strictly speaking, empowers authors to object any further interpretation of their art in mediums such as fanfictions. It protects them from wrongful attribution, a possibility in fanfictions, as believed.
Since, the copyright law does not explicitly mention its position on fanfictions; authors rely on judgments by courts. Courts are yet to decide on the legality of fanfictions, per se, however, some landmark judgments exist which might help one gauge their position on them.
In, Anderson v. Stallone a screenwriter upon seeing the three Rocky movies wrote a fourth part and submitted it to Sylvester Stallone. Once the fourth part was released the screenwriter found out that substantial elements from his draft were added to the film and he was not given any credit. The screenwriter subsequently sued. The Court however, held that the draft was not protected under copyright for the script and was an ‘unauthorised derivative’ of Stallone’s work.
The case above mentioned puts forth a strict interpretation of the Copyright Law, and if applied stringently can hamper the democratic values that are ensured by them. It is therefore important that copyright law be understood from the other side of claim as well.
Arguments for Fan-fiction
Rebecca Tushnet argues that fanfictions are not copyright infringement for they are covered under the fair use doctrine. Fair Use doctrine serves as an exception to copyright, for a work to be protected hereunder it must pass the following test a) Purpose and Character of the use, b) The nature of the copyright work, c) the amount of substantiality of the portion copied, d) the effect on the market. Rebecca Tushnet puts forth that fanfictions fall under the purview of Fair Use doctrine and hence qualify as transformative works.
a) The Purpose and Character of the Use
Fanfictions, as stated above are subversion from the popular and established narrative. Fanfiction writers take characters from the primary source and give them their own interpretation and character arcs. Fanfiction writers put original input and explore various dimensions such as gender roles, sexualities, gender expression among others. The original input is just as much covered by the Lockean brow sweat theory. Since, fanfictions are majorly non-commercial in nature; this aspect weighs in its favour.
The purpose of fanfictions can be exploring the primary body of literature or “reclaiming”. In, Suntrust v. Houghton Mifflin, the respondent’s The Wind Done Gone was considered as fair use by the Court, for it retold the story of Gone with the Wind from one of Scarlett O’Hara’s maids’ perspectives. The purpose herein was to critically rebuke the original text, a practice commonplace in fanfiction writing spaces.
b) The nature of the copyrighted work
Rebecca Tushnet considers this factor of much insignificance. The factor herein is especially insignificant when talking of parodies, for they largely take from fictions. The second factor finds more use in distinctions of published and unpublished work.
c) The amount and substantiality of the portion copied
While determining the copyright of a character in a work of fiction, Courts are aligned to test it on whether “the character involves the story being told.” If the character qualifies to be protected, it becomes difficult to determine what “substantial portion” entails. A fanfiction writer might just use the name of the character from the primary source, there lies the possibility of the character used to only be loosely based on the original one. The Court might consider if it is “reasonable in relation to the purpose of the copying.” This further needs to be tested with the first and fourth factor and hence can aid leveraging the entire character.
d) The effect on the market
Fanfictions are strictly non-commercial in nature. As stated above the contents are created for and owned by the fans. Moreover, any attempt to gain monetary profit off them is frowned upon by the fans. Archive of Our Own makes the non-commercial and non-profit nature of the website clear on their homepage.
Screenshot: Archive of Our Own homepage
Fanfiction creators often argue that they offer free advertisement for the original work rather than hampering their economic market. It is important to note that the consumption space for fanfictions is distanced from the actual market of primary art.
Fanfiction writers are known to add disclaimers to their works distancing themselves from the original work and author. Though disclaimers do little to save them from lawsuits, they do indicate that the original author is not to be wrongfully attributed to their work.
Cultural Theory of copyright ensures that copyright law should be justly and fairly employed in order to ensure a community which is culturally progressive and diverse. Fanfictions are unique for they provide marginalised groups a platform to have their perspective be taken seriously. A society where only a particular version of Copyright law is applied would be undemocratic and hamper creativity. Therefore, it is important that fanfictions be considered as transformative works and protected under fair-use.
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Author: Shivani Kundle– a student of Bharati Vidyapeeth Deemed to be University, New Law College, (Pune), in case of any queries please contact/write back to us via email firstname.lastname@example.org or at Khurana & Khurana, Advocates and IP Attorney.