The Hippoi Athanatoi, the immortal horses, are the fabulous steeds of the gods and heroes of Greek myth.
The topic of the week appears to be fan fiction and there are a lot of strong feelings on both sides. For my own part, I find it difficult to write in detail about my opinions because I see it as a very clear-cut issue: if the copyright holder doesn’t permit it, you don’t do it. I am of the opinion that it is both legally and morally wrong to do so.
But, the issue does perhaps deserve a bit more time and thought than that. As an initial caveat, let me add that any opinions stated here concern fan fiction that is distributed more or less widely, primarily on the Internet. If someone writes fan fiction for themselves, there’s clearly no harm done.
To begin with, I am aware that the legal status of fan fiction has not (as far as I am aware) been tested in court. However, I have seen opinions on the matter from people who aren’t just “Internet lawyers” and I firmly believe that fan fiction does constitute a copyright infringement. So, I do not feel there is any reason to discuss the legality of the issue. It is the most clear-cut part of it, as far as I am concerned.
Though, there is one aspect of the legal issue that often comes up and which has perhaps been misconstrued in the past. Some authors have opposed fan fiction on the grounds that if they don’t protect their copyright, they might lose it. This is not possible, you cannot lose your copyright (you can, on the other hand, lose trademarks if those are not defended). However, it has been suggested that if authors do not object to non-profit usage of their copyright material, it may lessen their chances of being able to be awarded damages if there is a legal cause involving unauthorized for-profit usage of said material.
What about the moral side? I guess one can say that there’s a few different potential situations here.
Lets start with dead authors. If the author is long dead and the work is out of copyright, there’s of course no legal issues with fan fiction and I don’t think there’s a moral issue either. It may be “irreverent” to do certain things with certain works, but irreverence has produced a lot of good work throughout history. If the author is recently dead and the work is still under copyright, I think the appropriate thing to do is to ask for permission from the estate. If not, just let the fact that it very likely isn’t legal guide you and don’t do it, even if perhaps there’s less of a moral incentive to not do it.
If the author is alive and well, you are often able to find out how they feel about fan fiction. If they say “go ahead”, then do go ahead. I don’t think fan fiction as such is wrong. I am not interested in it myself because it isn’t “real”, but that doesn’t make it wrong. If you can’t find out what the author feels about the matter, I think the same goes as for the recently deceased author: err on the side of caution. Finally, if the author has said that they do not want you to do it, then I find it extremely hard to imagine why someone would go ahead anyway. The author not only has the legal right to say no, many (most?) authors who say no do so because they are troubled by the idea of others writing about their creations, in particular their characters.
Not all fan fiction has content that might be troubling to an author, but it is certainly common enough, and I don’t think it necessarily has to be graphic slash fiction for an author to feel bothered by someone else writing their characters. Why would anyone want to do that to an author if they love what the author has created? I can understand the motivation if someone writes parodic fan fiction of a book they really dislike, but if an author has created something that gave you enjoyment, why would you want to make the author uncomfortable? Why would you want to disrespect their very reasonable, legally sound wishes?
It makes no sense.
In particular, the focus on reusing the characters—sometimes in the setting, sometimes outside—is the part that I find the most troubling and senseless. I think most authors would be less uncomfortable if fan fiction primarily reused their settings, though the legal aspects still remain troubling.
That is why, to spin off on a tangent of great relevance to myself, we made sure to get permission before starting Blood of Dragons, our A Song of Ice and Fire-based MUSH. In retrospect, the MUSH has been incredibly important to us (we would not have started Westeros.org without it the site was originally intended as a resource for players), but we would never have gone ahead with it if we had not received permission to do so. We’re not using book characters at all (the game is set around 140 years before A Game of Thrones and the canon characters known to be alive at this time are purely there as background material), just the setting, but even so there was no question in our minds that we needed permission to do so. Even though I do not consider a roleplaying game as being fan fiction (backgrounds, logs of roleplay, informative writeups about the setting, etc do not generally fall within the commonly accepted forms of fiction), it is definitely a form of fan labour that makes use of someone else’s intellectual property in a way that needs to be approved. Given that, it is a lot better for everyone to have permission for such a project. Who knows, you might even develop further connections with the author as a result of it, instead of risking being shut down and losing your hard work.
Of course, fan fiction using an author’s characters is often very unlikely to be approved by the author, so the same incentive to ask permission may not exist there. But why not stick to the ones who do say yes? Or the ones that say yes to stories within their settings as long as their characters aren’t used? It really does strike me as an entitlement issue when some readers feel that they should have the freedom to do whatever they want with any text. In particular, the defence that this is just one other way of interacting the text strikes me as misleading. It cannot be compared with reviewing or analysing or discussing a text because all those activities are perfectly legal. It is true enough that those activities may also be uncomfortable for an author, but if so that is a discomfort one definitely has to accept in exchange for making ones work public. But making something public does not mean giving up ones intellectual property rights.
Before wrapping up, I wanted to briefly address one somewhat common defence of fan fiction.
While exact statistics would be difficult to come by due to the anonymity offered by the Internet, it does seem as if the vast majority of fan fiction writers and readers are women. Is that why the focus is on the characters? It also seems as if one part of this conflict lies in women somehow feeling that it is sexist to limit their particular way of interacting with the text. I have seen this argument put forward several times, and I am equally baffled each time. Should the law be different for women in this case? Or should they be allowed to ignore it because they are women? I imagine most would say “obviously not”, but to conclude my thoughts on the matter I think it would probably be quite interesting to study fan fiction as a form of reader response and those who write it as a particular type of interpretive community.
However, just because a study of fan fiction might say something interesting about how some readers want to interact with a text, this does not change that it is wrong, which sometimes seems to be the conclusion drawn when this argument is put forward. If it indeed a typically female way of interacting with a text, you still cannot override the rights of ownership of intellectual property by invoking the right of women to express themselves. That is a false and misleading complication of an issue that ultimately is quite simple as long as we recognize ownership of intellectual property.
Hippoi Athanatoi is divided into four sections, covering various of our hobbies.