Plagiarism 2: Take Back the Copy!

Last week's plagiarism post pulled in a lot of comments between Live Journal, Facebook, Blogger, and just plain email.

And quite the mixed reactions and colorful conversations!

There were two trends that stood out:

Outside of writing, there was much more of a "what's the big deal?" sentiment - particularly in visual arts and music. Based on how much discussion I've had in both those areas… be prepared for more upcoming topics! (Thank you Dan, Renée, Shannon, Roberta, and others!)

And then there were the anti-any-and-all-semblance-of-plagiarism folks. These people were either writers or in writing professions - and many were quite passionate about their thoughts. One friend likened someone being okay with their work being plagiarized to a woman who thought rape was okay because her husband did it. And she's not the only one to use that kind of metaphor; I've heard the term "raping children" come up more than once among published - many bestselling - authors in regards to fan fiction (fanfic).

And Fanfic is quite the topic!

For those of you unfamiliar with fanfic, it is when writers create stories (anywhere from flash length to novel-length to OMG-Wheel-of-Time-Series length) in existing worlds of fiction: be they movie, television, or a combination thereof. Think Star Wars, Star Trek, Harry Potter, Twilight… etc. It's a growing trend - especially in fan communities - and one that is very often caught in the crosshairs of plagiarism and copyright argument and lawsuit.

As a disclaimer: Any and all of my fanfic has never left my personal files (to my knowledge) or closed gaming groups, with the vast majority never leaving my head. Confession: It had little to do with plagiarism or copyright, for me. My reason is that time is precious and scant, so I better be working on original stuff I can potentially get paid for. The written stuff came from games I played between customer service calls (before I realized, "Oh! Why not write a novel?") and a few pieces of Harry Potter alternate realities that may have left someone scratching her head if they came up on a file backup at my old financial firm.

That said, I have many friends who write fanfic I thoroughly enjoy reading.

In researching fanfic for this article, I found this particular quote that seemed to address everything I've been playing with on this plagiarism topic:

The First Amendment protects free speech, but there is also a copyright clause in the Constitution. These two legal rights are often in conflict, and so the rights of fan fiction writers to write and speak freely and the rights of the copyright owner must be balanced. Each situation can be researched and individually evaluated, but it is important to understand there are no easy answers as to who has a right to the characters. Copyright law is designed to encourage authors to be creative by rewarding their efforts and protecting their work from others who might profit unfairly. This right must be balanced by society's need to have others not be limited by previously published protected works. There is not a clear "right" and "wrong" side in the battle between copyright owners and fan fiction writers.
(from Chilling Effects, http://www.chillingeffects.org/fanfic/faq.cgi? )

This point seems to fall in line with what I've been saying: plagiarism isn't a black and white issue. There is a lot of grey.

Most of the fanfiction writers I know adore the works they are playing in and will send anyone who asks (and even those that don't ask) to go out and buy the original works. And the DVDs. And the next sequels. And the not-in-the-same-universe-but-still-awesome other works by the creator(s). They are fans and evangelists that boost sales. Yes, they are writing with characters they did not create, but they aren't looking to make any profit from this hobby - they realize it's a "hobby," not a career - and they truly want to honor the creator who has inspired them and made their life a better place with her creations.

(Most. We'll get to at least one exception later.)

On the other hand, from the legal camp, the article Copyright 101 A Brief Introduction to Copyright for Fanfic Authors by A. T. Lee summarizes this:

Well, you can't derive your work from someone else's work or copyright her work without her permission. Therefore, technically, all fan fictions, which are derivative works (see, Sec. 4.1), are copyright violations. While many copyright holders turn a blind eye to such works (like our TPTB), they don't have to be so nice about it. In the end, it's completely up to the owner of the copyright to decide whether or not to enforce her rights, and prosecute the infringers. Whether or not she will be successful would depend on the availability of the fair use defense to the infringer. (See, Sec. 2.3).
Meanwhile, it often gets my "legal underwear in a wad" when I see disclaimers that say "infringement not intended". Strictly speaking, for fan fictions, there is infringement and the intention to infringe exists. I'm not sure what kind of disclaimer could exculpate that. You should, however, make it clear that you used the characters without permission, that you made no attempt to copyright those same characters, and that you're not using them for profit.

Sooo… technically, it's still illegal per U.S. law. (We won't go into other countries; Lee has links for those, too, though, if you're interested.) It IS pretty black and white.

But…

(Don't tell me you weren't expecting a "but"!)

But… it's not terribly enforceable. Yes, an author can find a fanfiction writer and sue the pants off of her. That takes a lot of effort in the Internet land of anonymity. And money. (There are only a handful of authors who can afford that.) And time. (Most authors prefer to be writing and can't pay a lawyer to spend all that necessary time.)

And even risk on the author's part. Take, for example, the well-known case where a fanfic writer sued Marion Zimmer Bradley for stealing a plot point from a fanfic piece, with the end result of Bradley not publishing her book. Additionally, in that link, Bradley discusses other potential risks to the author. There are over-zealous parents concerned about their darlings… (wait, I haven't written that blog post yet. It will come). Bradley cites a letter where someone asked about bestiality in her books - many targeted to YA audiences. Yeah… that was a fanfic someone posted. While I haven't heard of a case, could authors get sued for fanfic created in their world that includes inappropriate scenes for children? (And may God help J.K. Rowling if such a thing does come to pass! The Harry Potter slash fics I've seen (despite her request otherwise)…)


What is it that makes writing such a hotbed for plagiarism arguments and lawsuits?
Plagiarism in writing… why do you think it's such a hot topic? Is it more of a hot-button here than in any other art form? Why or why not? Is there something I'm missing?

And lastly, for you who write fiction, would you feel your work had been "raped" if someone wrote fanfiction about your world and characters?

*Other great links & resources I used in research, but didn't link to or quote directly:

http://dearauthor.com/wordpress/2006/12/18/wherein-jane-offends-authors-against-fan-fiction/

http://swiftywriting.blogspot.com/2005/11/in-defense-of-fanfiction-guestblogger.html

http://reason.com/archives/2007/01/30/the-fan-fiction-phenomena

http://www.trickster.org/symposium/symp189.htm

http://www.fanfiction.net/~fairywings81