The Gist of It: Fanworks are technically illegal. However not only do I think it shouldn’t be but the problems in itself is just ONE example of the law’s inability to deal with the concept of “information” as separate from its notions about physical property.
And now for the Too Long; Didn’t Read part.
Context and Definitions
I’ve never been one to heavily participate in any fandom; netwise, while I grew up around anime shrines and collectives I’ve never much been involved with it. I don’t write fanfiction, I don’t draw fanart. The closest is me maintaining a fanfic archive. However, I’ve always been a firm believer in there being something not quite right about making fanwork illegal, and for the longest time I thought it was legal (under some sort of “fair use” principle). But I’m wrong and hence this entry. Along the way, it helped that I had many an offline discussion with Tim on the matter (and related issues) as well as participating in similar discussions with Snark members.
When I mention “fanworks” in this entry, I mean media produced by fans of an existing genre of anything. This usually means fan ficition and fan art of existing movies, books, comics, etc etc. By “non-profit” I mean people who create fanworks and do not have them published to get money, i.e. entirely non-commerical. I am not talking about illegally downloading copyrighted materials such as music and movies. I think my arguments probably extends to, say, use of copyright images that get appropriated into layouts and web graphics, but to keep things tight, I’ll just be talking about fanworks here.
Further disclaimer: I barely known enough Australian law to get by as a law student, I know even less American law. Furthermore, very little proper jurisprudential research has been done by me, these are really just preliminary thoughts at best. Don’t be a moron and take the following as legal advice in any way.
Legalities
Fanworks are technically illegal. For an indepth reason this details why fanfiction is technically illegal in America. To sum up it seems that not only is fanworks most probably not considered “parody” and “fair use” but it’ll most likely contravene trademark laws too. For example, a fanfic on Harry Potter is illegal as it uses both copyrighted and trademarked characters without permission from the author. I believe such sentiments would probably be reflected in other Western jurisdictions too.
Of note, is that there hasn’t been a case where someone has sued another for publishing (non-profit or otherwise) fanworks. There’s been authors who publicbly denounce fanfiction, for example, like Anne Rice and threaten to sue. There’s also been a number of cease and desist letters sent to writers and fansites (a database of them is available at Chilling Effects) that threaten legal action. However, these fans would most likely be terrified of recieving such notices and fanworks would be removed and the matter settled. Therefore, without any case law to clarify and make certain the status of fanworks, I’m optimistic fanworks are only illegal in the strictest sense.
I would think it’s also arguably a very important factor when we’re dealing with NON-PROFIT, NON-COMMERICAL fanwork. Copyright/trademark owners do not lose anything, including profits, when someone writes fanfiction or draws fanart. The courts are generally reluctant to treat cases where there has been no commercial damage as a commercial case, but without any case law involving fanworks as precedent, this is also very unclear. For more information about fandom legalities, do visit my current favourite community, Fandom Lawyers.
Information =/= Physical Property
The problem is, currently, the law is trying to treat information as physical property. By physical property I mean tangible stuff, like houses, cars, paintings etc, things you can pick up and take away. If you pick up someone’s wallet and take off with it, you’ve deprived that person of their wallet. But information doesn’t work that way! This idea is best summed by George Bernard Shaw, who said:
“If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.â€
To again take Harry Potter as an example, after reading the book, I have the information about Potterness in my head. Yet I haven’t inadvertently deprived anyone of their Potter information. If I were to use the Potter information in my head to fabricate a picture or piece of writing, who has been harmed?
Some people would argue that the harm exists in the USE of the original media, which I suppose would mean even the very THOUGHT of Harry Potter one might have technically belongs to JK Rowling. Even if you didn’t write or draw anything, even if you were to say, talk to your friends about Harry Potter, aren’t you technically using a trademarked character/plot without Rowling’s permission? See the absurdity? It’s absurd to even consider information as a form of property because it information is NOT a physical object.
Circularity: Copyright Laws Are Justified because Copyright Laws Says So
Some people have argued that even outside the realms of legality, you shouldn’t use something that someone else has created. Original characters, stories, artwork etc are okay, but fanworks are not because you’re just taking someone else’s ideas and calling them your own. I’d say that’s a rather superficial distinction.
If I were to write a poem about a pretty sunflower, most would agree that that’s a pretty original piece of work. But isn’t that poem just a fanwork about a sunflower? Is there a difference between me having written a poem about a sunflower I own or a sunflower I saw in someone’s garden? If it’s the latter case am I “stealing” the information about the “sunflowerness”? If I were to draw a picture inspired by a bespectacled boy walking down the street, is that really somehow more original than if I were to draw a picture inspired by Harry Potter?
And therein lies the circularity of it. If we’re dealing with concepts outside of legalities it is roundabout to say that some things are original while others are not if you’re using legal definitions. That’s kind of like saying, “fine, if we’re not going to talk about the law, it’s still unethical to use existing media because the law says that media has a protected status”. It doesn’t sit right to say works about boys and sunflowers are okay because no one owns them; but works regarding Harry Potter and Stargate are not okay because the law says they’ve been tagged by someone already. Copyrights and trademarks are just identifiers of who got to the copyright/trademark office first, it does not have a significance beyond that. We live in an age of postmodernism when new ideas are built upon old ones. How is it fair to accuse certain works to be unethical and unoriginal if they use existing works as inspiration, while existing works are themselves based off older story themes (e.g. wizards, spaceships, vampires etc)?
Summing Up
If we’re not talking about making money, to illegalise and possibly punish those who make creative works based on existing media is ludicrous. The above arguments is still valid to cover appropriation of graphics and such that’s used on non-profit, non-commerical fan sites too. It is however a different matter if we’re talking about making money though. The market comes into play and I feel that’s where trademarks and copyright may still have validation; i.e. to protect economic interests. This is why there’s been quite a bit of kerfluffle over a new commerical fanfiction archive, fanlib.com. A great summary is available here and more about it in the Life Without Fanlib community. But that’s beyond today’s entry. Otherwise… fanworks all the way! Whoo! :D
Recent Comments