Some points about intellectual property law in the wake of the Diana Gabaldon fanfiction debate
I love fanfiction. I think it's a fantastic way to encourage critical thinking about texts and cultural works, for people to get into and improve their writing skills, and to give characters and worlds new exciting lives and have full potential explored. More than that, creating fanfiction is a fantastic way to meet people and make new friends you otherwise would have never met, often around the world (very helpful when you go traveling!), and those friends will be friends for life. It was through fandom and fanfiction I made many of the friends I have, that I improved my writing skills, that I engage the way I do with works and critically analyse them. What's more, fandom and fanfiction online are the reasons that I became interested in intellectual property law and decided very early on that if I was going to be a lawyer that was what I was going to practice. My experience online with fan activities and remixing online even helped me get my job, where every day I am dealing with contracts and giving advice to artists on how to protect their intellectual property rights.
All this makes it all the more interesting when things like Diana Galbadon's anti-fanfiction post happen. Watching the discussion of that come through on metafandom has been for me on one hand highly interesting, and on the other, highly frustrating as I consciously restrain myself from hitting 'reply' to correct bits of copyright law. Simply put, I find myself in a very strange position of being both a fanfic writer and an intellectual property lawyer and trying to resolve these two positions as I sift through the pro-writing discussions. I'm still doing that, but in the meantime, a few points.
1. Plagiarism =/= copyright infringement.
Although closely related, there's a difference between plagiarism and copyright infringement. Plagiarism as anyone who's been to school should know, is intellectual dishonesty where someone uses writing, ideas or concepts taken from someone else without crediting or citing the source and represents it as their own. Copyright infringement on the other hand is an unauthorised use of a work protected by copyright. They're very similar and both terms can be applied to the same thing, but only one is actionable at law. The other will seriously damage your reputation and credibility as an author or artist but won't be actionable at law unless it's also an infringement of copyright. For example, I could copy a Shakespeare sonnet and put it up online claiming I wrote it, but while I would get lynched and ridiculed by the internet it's not an infringement of copyright because the works of Shakespeare are in the public domain. In the context of fanfiction, yes fanfiction uses works and ideas created by another person but since almost all fanfiction authors openly credit the original work and the work's creator it's not plagiarism. Whether or note fanfiction is an infringement of copyright is another matter, which brings me to …
2. Fair use (United States)
Fair use is the first card brought out in these kind of discussions online, however it should come with an asterisk that it is applicable only in the United States. Obviously there are a lot of Americans online and in fandom, however there are also a lot fans from other countries. With so much of the fanfiction and intellectual property discussion generated from the United States taking place on the World Wide Web of fandom, there's a risk that fair use is perceived by fans as something that applies regardless of jurisdiction. American law only applying in America might seem incredibly obvious, but I've had to deal with enough misconceptions about law and legal systems that the idea of a fan outside of the United States believing they can claim fair use over their fanfiction is a real concern.
Case in point: the copyright laws of my home country, Australia. In Australia we don't have fair use, we have fair dealing (sections 40-42) which is a lot narrower than fair use in that fair dealing is a list of specific circumstances under which an unauthorised use of a copyright work isn't considered an infringement, namely: for the purposes of research of study, for criticism or review, for parody or satire, or for reporting the news. Canadian copyright law has the same fair dealing provisions, only without the parody/satire exception, and United Kingdom law also refers to fair dealing setting out a specific list of what acts are permitted in relation to copyright works (again, no specific exception for parody/satire). Fans in these countries need to try and fit their fanfiction into one of these exceptions in order to be excused of copyright infringement, and unless your fanfiction is parody/satire and you're in Australia, it's unlikely to do so.
Which brings me back to fair use and fanfiction, and all the posts of people confidently claiming that fanfiction is legal and allowed by fair use (in the United States). Personally I'd say it's less certain than that, in that while there is a very good and strong argument that fanfiction is a fair use of a copyrighted work, the legal status of fanfiction is still unclear for the simple reason that no court has made a decisive ruling on the question. What's more, from my understanding of United States law fair use operates as a defence to copyright infringement, it's not a right to do whatever you please with a work under copyright, and it certainly won't stop anyone from suing if they're determined enough. It also means I find it hard to accept the sweeping statement that all fanfiction is allowed under fair use because fair use is decided on a case by case basis ie., some fanfics may be more 'fair' than others.
3. Moral right of integrity
Reading Diana Galbadon's original post about how she thinks fanfiction is immoral as well as illegal makes me wonder how fanfiction would fare if the United States recognised artists' moral rights. Moral rights are rights personable to the author, and protect the author's reputation and integrity of their work. Australia recognises three moral rights: the moral right of attribution so authors have a right to be attributed as the author of the work, the moral right against false attribution so authors can take legal action is someone else's name is put on their work, and the moral right of integrity in their work. What that last means, is that authors have a right not to have their work subjected to derogatory treatment ie., you cannot deal with an author's work in such a way that is prejudicial to the author's honour or reputation. Similar right of integrity provisions exist in Canada and the United Kingdom, both of which refer to distortions, mutilations or any other treatment that is prejudicial to the author's honour or reputation.
This is where I repeat my observation that most of the online discussion around the legality of fanfiction seems to be driven from the United States, because while most fanfiction writers eventually run into the concept of fair use in fan communities I can't think of any occasion off the top of my head where the moral right of integrity has been raised. Theoretically at least, the existence of a moral right of integrity means that even if fanfiction was found to be excused under fair dealing an author could still potentially take legal action simply because they find your fanfiction offensive or insulting. Emphasis on the theoretical, because in Australia at least there hasn't been any court case looking at the moral right of integrity, and if there's been any action over in the UK and Canada I want to hear about it.
... All in all, the only resolution I have thus far between my fanfic personality and my lawyer personality is this: I love fanfiction. I love it for the gems and treasures I find amongst all the dross that make me view characters in new ways, that make me think, or simply just make me happy for giving characters a quiet moment of peace or a happy ending. I truly believe that fanfiction has value and is a good thing to keep fan communities alive and vibrant, and that it should not be stifled. That being said, even if I can empathise and/or agree with criticism against a vehemently anti-fanfiction author I do want to point out that authors and copyright holders have a duty to protect their intellectual property rights, otherwise they lose them, and really at the end of the day, fanfiction writers are using without permission material created by someone else and the jury's still out as to whether or not that's permitted or not. Additionally, there are valid concerns raised about people creating fanfiction to auction off and raise money for charity as this could make fanfiction skate very close to (if not actually cross into) commercial territory. For all that I love fanfiction and think it's fantastic to give to a good cause, I can't say I'm comfortable with fanfiction being used to generate money because it starts weakening any fair use argument, is far less easy for a rights holder to overlook, and in a serious case may be the step too far that forces an author to take legal action. Which would be fascinating to me from a professional and academic point of view (legal clarity at last!) but I'm not so sure how good it would be for fan communities generally.
...I have a weekend away from work, really.
All this makes it all the more interesting when things like Diana Galbadon's anti-fanfiction post happen. Watching the discussion of that come through on metafandom has been for me on one hand highly interesting, and on the other, highly frustrating as I consciously restrain myself from hitting 'reply' to correct bits of copyright law. Simply put, I find myself in a very strange position of being both a fanfic writer and an intellectual property lawyer and trying to resolve these two positions as I sift through the pro-writing discussions. I'm still doing that, but in the meantime, a few points.
1. Plagiarism =/= copyright infringement.
Although closely related, there's a difference between plagiarism and copyright infringement. Plagiarism as anyone who's been to school should know, is intellectual dishonesty where someone uses writing, ideas or concepts taken from someone else without crediting or citing the source and represents it as their own. Copyright infringement on the other hand is an unauthorised use of a work protected by copyright. They're very similar and both terms can be applied to the same thing, but only one is actionable at law. The other will seriously damage your reputation and credibility as an author or artist but won't be actionable at law unless it's also an infringement of copyright. For example, I could copy a Shakespeare sonnet and put it up online claiming I wrote it, but while I would get lynched and ridiculed by the internet it's not an infringement of copyright because the works of Shakespeare are in the public domain. In the context of fanfiction, yes fanfiction uses works and ideas created by another person but since almost all fanfiction authors openly credit the original work and the work's creator it's not plagiarism. Whether or note fanfiction is an infringement of copyright is another matter, which brings me to …
2. Fair use (United States)
Fair use is the first card brought out in these kind of discussions online, however it should come with an asterisk that it is applicable only in the United States. Obviously there are a lot of Americans online and in fandom, however there are also a lot fans from other countries. With so much of the fanfiction and intellectual property discussion generated from the United States taking place on the World Wide Web of fandom, there's a risk that fair use is perceived by fans as something that applies regardless of jurisdiction. American law only applying in America might seem incredibly obvious, but I've had to deal with enough misconceptions about law and legal systems that the idea of a fan outside of the United States believing they can claim fair use over their fanfiction is a real concern.
Case in point: the copyright laws of my home country, Australia. In Australia we don't have fair use, we have fair dealing (sections 40-42) which is a lot narrower than fair use in that fair dealing is a list of specific circumstances under which an unauthorised use of a copyright work isn't considered an infringement, namely: for the purposes of research of study, for criticism or review, for parody or satire, or for reporting the news. Canadian copyright law has the same fair dealing provisions, only without the parody/satire exception, and United Kingdom law also refers to fair dealing setting out a specific list of what acts are permitted in relation to copyright works (again, no specific exception for parody/satire). Fans in these countries need to try and fit their fanfiction into one of these exceptions in order to be excused of copyright infringement, and unless your fanfiction is parody/satire and you're in Australia, it's unlikely to do so.
Which brings me back to fair use and fanfiction, and all the posts of people confidently claiming that fanfiction is legal and allowed by fair use (in the United States). Personally I'd say it's less certain than that, in that while there is a very good and strong argument that fanfiction is a fair use of a copyrighted work, the legal status of fanfiction is still unclear for the simple reason that no court has made a decisive ruling on the question. What's more, from my understanding of United States law fair use operates as a defence to copyright infringement, it's not a right to do whatever you please with a work under copyright, and it certainly won't stop anyone from suing if they're determined enough. It also means I find it hard to accept the sweeping statement that all fanfiction is allowed under fair use because fair use is decided on a case by case basis ie., some fanfics may be more 'fair' than others.
3. Moral right of integrity
Reading Diana Galbadon's original post about how she thinks fanfiction is immoral as well as illegal makes me wonder how fanfiction would fare if the United States recognised artists' moral rights. Moral rights are rights personable to the author, and protect the author's reputation and integrity of their work. Australia recognises three moral rights: the moral right of attribution so authors have a right to be attributed as the author of the work, the moral right against false attribution so authors can take legal action is someone else's name is put on their work, and the moral right of integrity in their work. What that last means, is that authors have a right not to have their work subjected to derogatory treatment ie., you cannot deal with an author's work in such a way that is prejudicial to the author's honour or reputation. Similar right of integrity provisions exist in Canada and the United Kingdom, both of which refer to distortions, mutilations or any other treatment that is prejudicial to the author's honour or reputation.
This is where I repeat my observation that most of the online discussion around the legality of fanfiction seems to be driven from the United States, because while most fanfiction writers eventually run into the concept of fair use in fan communities I can't think of any occasion off the top of my head where the moral right of integrity has been raised. Theoretically at least, the existence of a moral right of integrity means that even if fanfiction was found to be excused under fair dealing an author could still potentially take legal action simply because they find your fanfiction offensive or insulting. Emphasis on the theoretical, because in Australia at least there hasn't been any court case looking at the moral right of integrity, and if there's been any action over in the UK and Canada I want to hear about it.
... All in all, the only resolution I have thus far between my fanfic personality and my lawyer personality is this: I love fanfiction. I love it for the gems and treasures I find amongst all the dross that make me view characters in new ways, that make me think, or simply just make me happy for giving characters a quiet moment of peace or a happy ending. I truly believe that fanfiction has value and is a good thing to keep fan communities alive and vibrant, and that it should not be stifled. That being said, even if I can empathise and/or agree with criticism against a vehemently anti-fanfiction author I do want to point out that authors and copyright holders have a duty to protect their intellectual property rights, otherwise they lose them, and really at the end of the day, fanfiction writers are using without permission material created by someone else and the jury's still out as to whether or not that's permitted or not. Additionally, there are valid concerns raised about people creating fanfiction to auction off and raise money for charity as this could make fanfiction skate very close to (if not actually cross into) commercial territory. For all that I love fanfiction and think it's fantastic to give to a good cause, I can't say I'm comfortable with fanfiction being used to generate money because it starts weakening any fair use argument, is far less easy for a rights holder to overlook, and in a serious case may be the step too far that forces an author to take legal action. Which would be fascinating to me from a professional and academic point of view (legal clarity at last!) but I'm not so sure how good it would be for fan communities generally.
...I have a weekend away from work, really.