Some arguments against fanfic
The Organization for Transformative Works was recently mentioned in several blogs; http://community.livejournal.com/otw_news/15044.html has links.
It's fascinating watching the anti-fanfic crowd; here in my niche in fandom, I tend to forget what a lot of people think about our beloved hobby.
Scalzi's blog has a rich discussion. I saw several different viewpoints about why people believe fanfic is not transformative work:
1: FANFIC IS NOT TRANSFORMATIVE ENOUGH; the implication here is that some fanfic is transformative, but not most of it.
Scalzi said:
The OTW site suggests “[a] story from Voldemort’s perspective is transformative,” presumably because Voldemort is not a point of view character in the Harry Potter canon. I doubt a lawyer from Scholastic would agree, and would likely cite the many remaining non-transformed aspects of the story - including setting, the character’s relationship with other Potterverse characters, etc - as evidence against the claim (and also, to be picky about this particular example, there’s Voldemort pov in Chamber of Secrets, via Tom Riddle’s diary, and in Order of the Phoenix, when Harry sees Voldemort’s attacks on other characters through Voldemort’s eyes). A good lawyer would try to make the case a Voldemort pov is not transformative, merely derivative, and therefore perfectly well-protected under copyright.
Odd. I'd expect a writer to be aware that Riddle's diary was not a "Voldemort POV," but, like the rest of the series, Harry's point of view, showing Voldemort giving a monologue. The closest we get to another character's POV in the entire series is Snape's, in Chapter 29 of DH. And even that is Harry watching Snape's memories; at no point does anyone who isn't Harry get a controlling voice in the storyline.
But aside from that… I hadn't considered that some people would think a rewrite from a different perspective "wasn't transformative." After all, The Wind Done Gone won its case on that grounds-that the different perspective, combined with additional details implying aspects of characterization that had not been in the original, served as commentary and enhancement of the original story.
He also expresses concerns about the commercial issues: If you’re suggesting that OTW is going to attempt to thread the legal needle so that non-commercial derivative/transformative fannish work is seen a fair use but commercial derivative/transformative fannish work isn’t, that’s fine; I’ll be interested to see how you do it.
So he acknowledges that the problem may not be so much with "is fanfic legal" but "would that legality instantly translate to a level of commercial viability that currently doesn't exist?"-which would indeed be a major change in legal understanding, and I would expect is beyond the scope of what OTW is attempting.
2: FANFIC IS A SLEAZY BACK-ROOM PERVERSION AND DOESN'T DESERVE LEGAL RECOGNITION; the implication in this one is that fanfic, being tacky or perverse, is disrespectful of the author… and that if you want to commit such atrocities in your own little corner of the universe, that's fine, but don't ask for legal permission to do so.
Ed Bartlett, who is my new special friend, said:
If fanfic is indeed more about social interaction and acceptance than it is about dollars and cents…
And if fanficcers are truly interested in taking the authors wishes into account…
And if they just want to have fun without hurting anybody…
Then perhaps we need to create a technological version of the video store’s back room, with thick red curtains and a sign that says “Anyone who gets creeped by Kirk and Spock fondling each other should stay the hell out“. If it’s compartmentalized, I doubt many people would object.
I did point out that many fanficcers would be plenty content with this approach. After all, that backroom in the video store is not hidden from public view-just the contents are. Everyone knows it exists; the room itself is completely legal. It may have limited access to minors (a subtopic that the discussion thankfully dodged), but providing such a room, or getting stuff from it, doesn't make anyone a criminal.
Later, discussing reinterpretations of "A Christmas Carol," he approves of the movie Scrooged, and adds:Now if instead at the end Scrooge says “Screw you Jacob Marley, I don’t give a crap if Tiny Tim dies or not,” then the story has been fundamentally altered. The same also holds true if the Ghosts of Past, Present, and Future all rip off their cloaks and start going at it like a bunch of crazed bunnies.
Therein lies the difference between an homage and fanfic, legalities aside. One honors the source, the other doesn’t.
So he's claiming that fanfic is only okay if it's respectful to the author, and it can only do that if it carries the same message as the original story. (As decided by whom? Umm…. that's undeclared. Apparently, he thinks it's obvious what the author "really meant" and "definitely did not intend." No comment on what he thinks of Wicked and The Wind Done Gone.)
But he later admits:A big part of my problem with fanfic is slash. I’m not going to tell anyone who they should be sleeping with, or even fantasizing about, but Kirk/Spock is just freakin’ creepy.
And that may be the heart of it: it squicks me, therefore it shouldn't be officially legal, because then I might not be able to avoid it.
3: FANFICTION IS THEFT; ONLY THE ORIGINAL CREATOR IS ALLOWED TO DECIDE WHAT HAPPENS IN HIS/HER WORLD; the implication here is that fanfic somehow denies people the right to enjoy the original work, or that it "steals" people's attention or understanding of the original.
Chris Byrne says:Those characters are the authors original creations, they have the right to do with them what they please; and other than in my own head or on my own private property, I do not.
Chris seems to think intellectual property is a fixed and stable thing, that it has obvious boundaries that we're all aware of, and that those boundaries include all use of characters or settings without authorial permission. He assumes that all fanfic is outside of the range of fair use.
Jeff VanderMeer agrees, saying:But I don’t think you have the right, without permission, to reuse characters/settings. It’s not a matter of compensation. It just feels weird. And because I created those characters and settings, I don’t have to offer a logical explanation beyond that.
But Jeff doesn't bring up any legal aspects to support his claim: he insist that, as an author, since it bothers him if people use his characters, it must be (a) wrong and (b) illegal.
Back to Chris:If you want to write stories with someone elses characters, and keep them all to yourselves, fine. Sharing those stories though, that’s where the problem arises, because even if there is no harm, you are introducing a competing good into the marketplace of ideas.
And now we have it… the "marketplace" of ideas. As if concepts and understandings were something we buy and sell, as if we must replace an outdated interpretation of a story with a new, improved one. As if our attention were so limited that we cannot simultaneously enjoy the author's original story and another story with the same characters or settings (or both); as if fanfic drives out the original story, makes it less important or interesting to us, rather than enhancing our pleasure and comprehension.
As if our minds are like a physical bookshelf, with space for only so many books, and if we have 400 Harry Potter fanfics on the shelf, surely the originals will be thrown in the dustbin to make room for them.
I think OTW (and any group or individual that seeks to support and promote fanfiction) will need to consider how to address these three claims:
It's fascinating watching the anti-fanfic crowd; here in my niche in fandom, I tend to forget what a lot of people think about our beloved hobby.
Scalzi's blog has a rich discussion. I saw several different viewpoints about why people believe fanfic is not transformative work:
1: FANFIC IS NOT TRANSFORMATIVE ENOUGH; the implication here is that some fanfic is transformative, but not most of it.
Scalzi said:
The OTW site suggests “[a] story from Voldemort’s perspective is transformative,” presumably because Voldemort is not a point of view character in the Harry Potter canon. I doubt a lawyer from Scholastic would agree, and would likely cite the many remaining non-transformed aspects of the story - including setting, the character’s relationship with other Potterverse characters, etc - as evidence against the claim (and also, to be picky about this particular example, there’s Voldemort pov in Chamber of Secrets, via Tom Riddle’s diary, and in Order of the Phoenix, when Harry sees Voldemort’s attacks on other characters through Voldemort’s eyes). A good lawyer would try to make the case a Voldemort pov is not transformative, merely derivative, and therefore perfectly well-protected under copyright.
Odd. I'd expect a writer to be aware that Riddle's diary was not a "Voldemort POV," but, like the rest of the series, Harry's point of view, showing Voldemort giving a monologue. The closest we get to another character's POV in the entire series is Snape's, in Chapter 29 of DH. And even that is Harry watching Snape's memories; at no point does anyone who isn't Harry get a controlling voice in the storyline.
But aside from that… I hadn't considered that some people would think a rewrite from a different perspective "wasn't transformative." After all, The Wind Done Gone won its case on that grounds-that the different perspective, combined with additional details implying aspects of characterization that had not been in the original, served as commentary and enhancement of the original story.
He also expresses concerns about the commercial issues: If you’re suggesting that OTW is going to attempt to thread the legal needle so that non-commercial derivative/transformative fannish work is seen a fair use but commercial derivative/transformative fannish work isn’t, that’s fine; I’ll be interested to see how you do it.
So he acknowledges that the problem may not be so much with "is fanfic legal" but "would that legality instantly translate to a level of commercial viability that currently doesn't exist?"-which would indeed be a major change in legal understanding, and I would expect is beyond the scope of what OTW is attempting.
2: FANFIC IS A SLEAZY BACK-ROOM PERVERSION AND DOESN'T DESERVE LEGAL RECOGNITION; the implication in this one is that fanfic, being tacky or perverse, is disrespectful of the author… and that if you want to commit such atrocities in your own little corner of the universe, that's fine, but don't ask for legal permission to do so.
Ed Bartlett, who is my new special friend, said:
If fanfic is indeed more about social interaction and acceptance than it is about dollars and cents…
And if fanficcers are truly interested in taking the authors wishes into account…
And if they just want to have fun without hurting anybody…
Then perhaps we need to create a technological version of the video store’s back room, with thick red curtains and a sign that says “Anyone who gets creeped by Kirk and Spock fondling each other should stay the hell out“. If it’s compartmentalized, I doubt many people would object.
I did point out that many fanficcers would be plenty content with this approach. After all, that backroom in the video store is not hidden from public view-just the contents are. Everyone knows it exists; the room itself is completely legal. It may have limited access to minors (a subtopic that the discussion thankfully dodged), but providing such a room, or getting stuff from it, doesn't make anyone a criminal.
Later, discussing reinterpretations of "A Christmas Carol," he approves of the movie Scrooged, and adds:Now if instead at the end Scrooge says “Screw you Jacob Marley, I don’t give a crap if Tiny Tim dies or not,” then the story has been fundamentally altered. The same also holds true if the Ghosts of Past, Present, and Future all rip off their cloaks and start going at it like a bunch of crazed bunnies.
Therein lies the difference between an homage and fanfic, legalities aside. One honors the source, the other doesn’t.
So he's claiming that fanfic is only okay if it's respectful to the author, and it can only do that if it carries the same message as the original story. (As decided by whom? Umm…. that's undeclared. Apparently, he thinks it's obvious what the author "really meant" and "definitely did not intend." No comment on what he thinks of Wicked and The Wind Done Gone.)
But he later admits:A big part of my problem with fanfic is slash. I’m not going to tell anyone who they should be sleeping with, or even fantasizing about, but Kirk/Spock is just freakin’ creepy.
And that may be the heart of it: it squicks me, therefore it shouldn't be officially legal, because then I might not be able to avoid it.
3: FANFICTION IS THEFT; ONLY THE ORIGINAL CREATOR IS ALLOWED TO DECIDE WHAT HAPPENS IN HIS/HER WORLD; the implication here is that fanfic somehow denies people the right to enjoy the original work, or that it "steals" people's attention or understanding of the original.
Chris Byrne says:Those characters are the authors original creations, they have the right to do with them what they please; and other than in my own head or on my own private property, I do not.
Chris seems to think intellectual property is a fixed and stable thing, that it has obvious boundaries that we're all aware of, and that those boundaries include all use of characters or settings without authorial permission. He assumes that all fanfic is outside of the range of fair use.
Jeff VanderMeer agrees, saying:But I don’t think you have the right, without permission, to reuse characters/settings. It’s not a matter of compensation. It just feels weird. And because I created those characters and settings, I don’t have to offer a logical explanation beyond that.
But Jeff doesn't bring up any legal aspects to support his claim: he insist that, as an author, since it bothers him if people use his characters, it must be (a) wrong and (b) illegal.
Back to Chris:If you want to write stories with someone elses characters, and keep them all to yourselves, fine. Sharing those stories though, that’s where the problem arises, because even if there is no harm, you are introducing a competing good into the marketplace of ideas.
And now we have it… the "marketplace" of ideas. As if concepts and understandings were something we buy and sell, as if we must replace an outdated interpretation of a story with a new, improved one. As if our attention were so limited that we cannot simultaneously enjoy the author's original story and another story with the same characters or settings (or both); as if fanfic drives out the original story, makes it less important or interesting to us, rather than enhancing our pleasure and comprehension.
As if our minds are like a physical bookshelf, with space for only so many books, and if we have 400 Harry Potter fanfics on the shelf, surely the originals will be thrown in the dustbin to make room for them.
I think OTW (and any group or individual that seeks to support and promote fanfiction) will need to consider how to address these three claims:
- That only a tiny portion of fanfiction is non-infringing; the rest is too derivative, and has too much potential negative financial impact, to be legal;
- That fanfiction is essentially a "freak thing," and freakish activities don't get legal protections;
- That fanfiction steals essential control of the characters & settings from the authors, and robs them of some part or aspect of the attention the original works deserve.