Rethinking the MZB case
You know, I'm finding the current slow evolution of fanfic into something resembling legitimacy to be absolutely fascinating to watch. And with all the discussion currently going on about fanfic due to Gabaldon, the Marion Zimmer Bradley case is popping up a lot, and forcing me to completely rethink it.
When I first got into fandom, fanfic was seen as illegal and scandalous and something a lot of authors really didn't care for. And that verdict was generally accepted in the circles I hung out in as fairly accurate. I got as big into anime fandom as I did at least in part because the copyright holders were much less likely than authors to start spamming fanfic archive owners with C&Ds, as I vaguely remember being around while either Anne Rice or LKH went off on fanfic and got a shitload taken off the internet. Any author who said anything about fic was a hell of a lot more likely to say "Take that crap off the internet" than "Awesome! The lawyers sadly tell me I can't read it, but have fun with that!" And that was accepted as the risks you run when you're doing something technically illegal and potentially infringing on someone else's rights.
And a lot of that acceptance of fanfic's moral dubiousness, I think, did come from the MZB case. Fanlore actually has a pretty good write-up of it here and here, if you want to check it out. I was pretty big into MZB's anthologies at the time, and so I got my information pretty much straight from the author's notes in her S&S anthologies, and it sounded dreadful. An author had a similar idea as a fanfic author, and it stopped her from being able to write a plotted out book when the fan threatened to sue! And then it killed the Darkover fanfic anthologies and oh, it was all so very dreadful. And now every lawyer in publishing warns authors off fanfic and it badly hurt fanfic's chances for legitimacy.
Except when you read it more clearly, it's abundantly clear that the whole incident was started by MZB trying to buy some kinds of rights to the fanfic, and maybe it was just a CYA thing to cover the use of the idea but...maybe not. And when you put it into the context that she was making money off editing fanfic anthologies and all her books at the time were being ghostwritten due to her health failing... it starts looking really skeevy to me. At the time it happened, MZB's version was pretty much the only one that got heard since, you know, she was the pretty-well known author versus the tiny unknown, but only hearing one person's side in a complicated and contentious story is never going to get you the right answer. And the more I hear, the more skeptical I am that it was the fanfic author who was the more wrong one.
First off, writing fanfic in someone's universe does not mean that the original author has any right to use the fanfic for their profit without the fanfic author's consent. In addition, just because fanfic authors are writing in your universe does not mean you're entitled to use their work for your profit without giving them fair recompense, and being willing to accept no. MZB was running very close to that line, and it sounds like she crossed it at some points.
I mean, honestly? If I wrote a fanfic, and the author's health had failed and they seriously needed money, and wanted to edit up my fanfic to their standards and sell it and give me a very small cut...well, it would depend on the author, but I'd be inclined to agree. I mean, it's already written, and I was writing in that universe without any expectations of making a profit already, so on the whole, I think it would be fine unless the author was a giant douche. But it sounds to me like after MZB's health failed, some people were looking at fanfic as a way to keep making her money by...at best, giving her ghost writers ideas, and at worst, by publishing rewritten fanfiction under MZB's name. And actively pressuring fanfic authors to help with that and let MZB and her associates keep most the profits.
And that is just no. Fanfic authors could, willingly, consent to helping their favorite authors through essentially donating their work. I don't know about the ethics of presenting that to the public as the work of the original author, but hell, ghost writing's a long established tradition. But the second you start thinking you're entitled to use the fanfic written in your series to make a profit is the second you've stepped way over the line. And yeah, if you're writing a book based off someone else's fanfic before they've agreed to it, you're not necessarily feeling completely entitled to other people's work, but you're definitely feeling entitled.
And the context in which these fanfics were being written makes it more complex, because I remember reading the S&S anthologies and being impressed at how many new-ish published authors were first published there. MZB's anthologies were seen as a good career stepping stone at a time, especially for women authors who, let's face it, were almost certainly subtly discriminated against by other publishers. Mercedes Lackey wasn't the only one who got her start there, though I can't remember any other names. Maybe Jo Walton was another? I don't remember now, to be honest. I think at the time I read this story (which was several years after it happened - all my S&S were bought used) there were about 4 or 5 authors whose books I regularly saw in the bookstore who'd gotten their start in MZB's anthologies who regularly still published there.
And, really, that's what guaranteed that this entitlement towards fanfic authors' stories would lead to legal issues in my opinion. I have no idea what kind of mix of authors the Darkover fanfic anthologies drew, but my guess is that there were a lot of hopeful pro authors who wanted to use this as a stepping stone, a lot of people who just wanted to play in her universe once or twice, and a lot of people in between, who kind of wanted to play but also kind of wanted to get published. But once authors with a publishing contract in hand started getting letters offering a pittance for all rights to their fanfic novel (and I am inclined to believe that side on that particular aspect, even if they really did just want the right to the idea, if only because the party with more power always tries to claim way too much for themselves when dealing with legal issues just to be "safe", especially if they're too cheap to hire a lawyer for something this minor and don't really know what their rights are and just want to cover all possibilities and figure anything illegal will be thrown out anyway so why not) - yeah, eventually they were going to get turned down. And that got complicated on both sides due to miscommunications and the fact that the fanfic author saying no seems to have been previously unconceivable to them, which yes, will hamper communication.
And yeah, it killed the official Darkover fanfic anthologies, and it should have, because the combination of all books being ghostwritten and official fanfic anthologies where people are encouraged to send in their fanfic to be published is going to be an ongoing temptation to feel entitled to fanfic author's work that some people aren't capable of handling, and my very strong impression is that MZB and/or some of her associates are some of them. It's one thing to say "I don't want someone to randomly publish a fanfic on the internet and then sue me because they think my next book is too similar". It's another thing entirely to say "I have turned writing fanfiction for my series into a legitimate career step that has helped a fair number of people succeed in a competitive business, and am mining it for, at very least, ideas and expect the people sending in fanfic as a potential step in becoming a published author to be always okay with that."
I should also note that ideas aren't copyrighted, so...there's something going on there. It could have just been a stupidly paranoid CYA thing that she probably shouldn't have done, because making the offer legitimizes the saying no. The idea could have been so detailed and would have involved so much stuff that she felt that she couldn't use it without permission at which point...yeah there's a lot of room to argue the legitimacy there. I'm not as sanguine about, say, saying it's okay for an author to take a pre-existing fanfic novel, lifting the plot and and how the characters develop and the OCs as a very detailed outline, and rewriting it in your style as I am saying that fanfic authors don't have the right to sue about the plot being generally the same. I think...that's getting actually into early HP fandom territory about what kind of right you have to basically remix works (I'm thinking of the fic where Draco was rewritten as Sara from The Little Princess, here, where there were still plenty of chunks lifted straight from the novel), and...really if it went that far, the fanfic author would have had the absolute right to refuse. If it's somewhere in the middle, who knows. Or the third major possibility I see is that the author was right and she was planning on using the whole thing. And frankly, if someone's asking me for permission to use an idea and demanding I sign over the whole kit and kaboodle, I'd be pretty skeptical of their good intentions too. Especially since I know ideas aren't copyrighted.
To be fair after all that skepticism, I don't think fanfic anthologies are going to necessarily be abusive. But, as a general rule of thumb, I probably wouldn't send in fanfic for an official anthology where the author drips entitlement and unprofessionalism in every story I've heard about them and every publicly available rant, because an amateur editor who created the world in which you're playing and who's still churning out a book a year for it to pay their mortgage is driven by entirely different things than a real publishing house, and there's a lot more potential for abuse. I hate to sound even remotely like one of those nutjobs who think "omg the publishing house will STEAL MY IDEA OH NO" but...yeah. The reason publishing houses are trustworthy is because they don't have a dog in the game - they make all their money through publishing, and stealing authors' works would hurt their profits. Authors acting as editors to fanfiction about their series as a sideline from writing their own work have a whole freaking pack in the game.
And now, the tide seems to be very slowly turning towards giving fanfic some degree of legitimacy as this fades from memory and the internet grows more legitimate and enables more fanfic authors to talk to each other than they ever did in MZB's time. More and more new authors came out of fandom, there's now an organization arguing for fanfic's legitimacy as an unofficial art form, and I do think it's only a matter of time until more authors start dabbling with encouraging fanfiction and legitimizing it again. Eric Flint already publishes fanfic anthologies set in his 1632 universe, after all. Overall, I like this, but I do anticipate there being some more sticky situations as both fanfic authors and the original authors establish what rights they have and don't have.
When I first got into fandom, fanfic was seen as illegal and scandalous and something a lot of authors really didn't care for. And that verdict was generally accepted in the circles I hung out in as fairly accurate. I got as big into anime fandom as I did at least in part because the copyright holders were much less likely than authors to start spamming fanfic archive owners with C&Ds, as I vaguely remember being around while either Anne Rice or LKH went off on fanfic and got a shitload taken off the internet. Any author who said anything about fic was a hell of a lot more likely to say "Take that crap off the internet" than "Awesome! The lawyers sadly tell me I can't read it, but have fun with that!" And that was accepted as the risks you run when you're doing something technically illegal and potentially infringing on someone else's rights.
And a lot of that acceptance of fanfic's moral dubiousness, I think, did come from the MZB case. Fanlore actually has a pretty good write-up of it here and here, if you want to check it out. I was pretty big into MZB's anthologies at the time, and so I got my information pretty much straight from the author's notes in her S&S anthologies, and it sounded dreadful. An author had a similar idea as a fanfic author, and it stopped her from being able to write a plotted out book when the fan threatened to sue! And then it killed the Darkover fanfic anthologies and oh, it was all so very dreadful. And now every lawyer in publishing warns authors off fanfic and it badly hurt fanfic's chances for legitimacy.
Except when you read it more clearly, it's abundantly clear that the whole incident was started by MZB trying to buy some kinds of rights to the fanfic, and maybe it was just a CYA thing to cover the use of the idea but...maybe not. And when you put it into the context that she was making money off editing fanfic anthologies and all her books at the time were being ghostwritten due to her health failing... it starts looking really skeevy to me. At the time it happened, MZB's version was pretty much the only one that got heard since, you know, she was the pretty-well known author versus the tiny unknown, but only hearing one person's side in a complicated and contentious story is never going to get you the right answer. And the more I hear, the more skeptical I am that it was the fanfic author who was the more wrong one.
First off, writing fanfic in someone's universe does not mean that the original author has any right to use the fanfic for their profit without the fanfic author's consent. In addition, just because fanfic authors are writing in your universe does not mean you're entitled to use their work for your profit without giving them fair recompense, and being willing to accept no. MZB was running very close to that line, and it sounds like she crossed it at some points.
I mean, honestly? If I wrote a fanfic, and the author's health had failed and they seriously needed money, and wanted to edit up my fanfic to their standards and sell it and give me a very small cut...well, it would depend on the author, but I'd be inclined to agree. I mean, it's already written, and I was writing in that universe without any expectations of making a profit already, so on the whole, I think it would be fine unless the author was a giant douche. But it sounds to me like after MZB's health failed, some people were looking at fanfic as a way to keep making her money by...at best, giving her ghost writers ideas, and at worst, by publishing rewritten fanfiction under MZB's name. And actively pressuring fanfic authors to help with that and let MZB and her associates keep most the profits.
And that is just no. Fanfic authors could, willingly, consent to helping their favorite authors through essentially donating their work. I don't know about the ethics of presenting that to the public as the work of the original author, but hell, ghost writing's a long established tradition. But the second you start thinking you're entitled to use the fanfic written in your series to make a profit is the second you've stepped way over the line. And yeah, if you're writing a book based off someone else's fanfic before they've agreed to it, you're not necessarily feeling completely entitled to other people's work, but you're definitely feeling entitled.
And the context in which these fanfics were being written makes it more complex, because I remember reading the S&S anthologies and being impressed at how many new-ish published authors were first published there. MZB's anthologies were seen as a good career stepping stone at a time, especially for women authors who, let's face it, were almost certainly subtly discriminated against by other publishers. Mercedes Lackey wasn't the only one who got her start there, though I can't remember any other names. Maybe Jo Walton was another? I don't remember now, to be honest. I think at the time I read this story (which was several years after it happened - all my S&S were bought used) there were about 4 or 5 authors whose books I regularly saw in the bookstore who'd gotten their start in MZB's anthologies who regularly still published there.
And, really, that's what guaranteed that this entitlement towards fanfic authors' stories would lead to legal issues in my opinion. I have no idea what kind of mix of authors the Darkover fanfic anthologies drew, but my guess is that there were a lot of hopeful pro authors who wanted to use this as a stepping stone, a lot of people who just wanted to play in her universe once or twice, and a lot of people in between, who kind of wanted to play but also kind of wanted to get published. But once authors with a publishing contract in hand started getting letters offering a pittance for all rights to their fanfic novel (and I am inclined to believe that side on that particular aspect, even if they really did just want the right to the idea, if only because the party with more power always tries to claim way too much for themselves when dealing with legal issues just to be "safe", especially if they're too cheap to hire a lawyer for something this minor and don't really know what their rights are and just want to cover all possibilities and figure anything illegal will be thrown out anyway so why not) - yeah, eventually they were going to get turned down. And that got complicated on both sides due to miscommunications and the fact that the fanfic author saying no seems to have been previously unconceivable to them, which yes, will hamper communication.
And yeah, it killed the official Darkover fanfic anthologies, and it should have, because the combination of all books being ghostwritten and official fanfic anthologies where people are encouraged to send in their fanfic to be published is going to be an ongoing temptation to feel entitled to fanfic author's work that some people aren't capable of handling, and my very strong impression is that MZB and/or some of her associates are some of them. It's one thing to say "I don't want someone to randomly publish a fanfic on the internet and then sue me because they think my next book is too similar". It's another thing entirely to say "I have turned writing fanfiction for my series into a legitimate career step that has helped a fair number of people succeed in a competitive business, and am mining it for, at very least, ideas and expect the people sending in fanfic as a potential step in becoming a published author to be always okay with that."
I should also note that ideas aren't copyrighted, so...there's something going on there. It could have just been a stupidly paranoid CYA thing that she probably shouldn't have done, because making the offer legitimizes the saying no. The idea could have been so detailed and would have involved so much stuff that she felt that she couldn't use it without permission at which point...yeah there's a lot of room to argue the legitimacy there. I'm not as sanguine about, say, saying it's okay for an author to take a pre-existing fanfic novel, lifting the plot and and how the characters develop and the OCs as a very detailed outline, and rewriting it in your style as I am saying that fanfic authors don't have the right to sue about the plot being generally the same. I think...that's getting actually into early HP fandom territory about what kind of right you have to basically remix works (I'm thinking of the fic where Draco was rewritten as Sara from The Little Princess, here, where there were still plenty of chunks lifted straight from the novel), and...really if it went that far, the fanfic author would have had the absolute right to refuse. If it's somewhere in the middle, who knows. Or the third major possibility I see is that the author was right and she was planning on using the whole thing. And frankly, if someone's asking me for permission to use an idea and demanding I sign over the whole kit and kaboodle, I'd be pretty skeptical of their good intentions too. Especially since I know ideas aren't copyrighted.
To be fair after all that skepticism, I don't think fanfic anthologies are going to necessarily be abusive. But, as a general rule of thumb, I probably wouldn't send in fanfic for an official anthology where the author drips entitlement and unprofessionalism in every story I've heard about them and every publicly available rant, because an amateur editor who created the world in which you're playing and who's still churning out a book a year for it to pay their mortgage is driven by entirely different things than a real publishing house, and there's a lot more potential for abuse. I hate to sound even remotely like one of those nutjobs who think "omg the publishing house will STEAL MY IDEA OH NO" but...yeah. The reason publishing houses are trustworthy is because they don't have a dog in the game - they make all their money through publishing, and stealing authors' works would hurt their profits. Authors acting as editors to fanfiction about their series as a sideline from writing their own work have a whole freaking pack in the game.
And now, the tide seems to be very slowly turning towards giving fanfic some degree of legitimacy as this fades from memory and the internet grows more legitimate and enables more fanfic authors to talk to each other than they ever did in MZB's time. More and more new authors came out of fandom, there's now an organization arguing for fanfic's legitimacy as an unofficial art form, and I do think it's only a matter of time until more authors start dabbling with encouraging fanfiction and legitimizing it again. Eric Flint already publishes fanfic anthologies set in his 1632 universe, after all. Overall, I like this, but I do anticipate there being some more sticky situations as both fanfic authors and the original authors establish what rights they have and don't have.