Copyright, Transformative Fiction, and Value
Continuing the series of responses to the Dear Author series on fanfiction; this is Part 2 of a 3-part response to “Fanfiction and Morality.” (Part 1 is here!)
To recap, the author of this post, Has, argues that “Taking an entire fanfiction story and turning that into a published book is:”
- ethically wrong [in part because the fan code of conduct is never to profit off fanfic]
- a cynical ploy to market books… an easy way to cash in because there’s already a built-in fanbase that is able to market the book via word of mouth
- [an indication] that the author does not believe what they wrote is strong enough to stand on its own merits but decided to publish it so they could profit by exploiting their fanbase
- disappointing
- might start off an ever-crazier circle of fanfiction based on fanfiction.
- very detrimental to fandom and fanfiction
The CoC (my oh-so-hilarious abbreviation for ‘fan code of conduct’) is a lie meant to keep fandom protected from copyright holders, but the reality is that it’s the copyright holders who aren’t protected—not because of any malice on the part of fans, but because of the fact that modern copyright law upholds the value of transforming existing works.
Copyright will always deter straightforward derivative rip-offs of your work, but it doesn’t guarantee your work can’t be really transformed and that money won’t be made off that transformation. The copyright holder can be legally subject to having their work taken and revamped and published in (at least?) 4 ways:
- The copyright holder can have their work revamped and published as parody under the Fair Use clause—which allows, of course, for the commercial sale of parody, even when works aren’t parodies but are in fact serious, like the famous case of Alice Randall’s bestselling African-American critique The Wind Done Gone.
- The copyright holder can have their work inspire a new universe with new settings, contexts, and characters, the way Twilight inspired 50 Shades.
- The copyright holder can have their copyright expire and enter the public domain—at least 50 years after their death for countries following the Berne Convention.
- The copyright holder can drop off the face of the earth and be unreachable when the remixer comes calling. This is called the orphan works clause, and it allows for your copyright to be overruled if no information about the work can be traced back to you as the creator after a good faith effort has been made to find you.
Obviously the law doesn’t think transformative fair use threatens the copyright holder. And historically the copyright holders themselves haven’t seen it that way either. I just happen to be re-reading Jerome K Jerome’s classic satirical memoir Three Men In a Boat (To Say Nothing of the Dog), which was originally published in 1889, sold a bajillion copies, and has never gone out of print since. For the 1909 edition (which is printed in my copy, which incidentally was published by Barnes & Noble), Jerome writes:
The world has been very kind to this book. Mr. Arrowsmith speaks only of its sales in Great Britain. In Chicago, I was assured by an enterprising pirate now retired, that the sales throughout the United States had exceeded a million; and although, in consequence of its having been published before the Copyright Convention, this has brought me no material advantage, the fame and popularity it has won for me among the American public is an asset not to be despised.
I find it wondrous and wonderful that one hundred years ago the concept of copyright could so amiably co-exist alongside the idea that monetary value was not the only kind of value that mattered in the dissemination of an author’s works and reputation throughout the world. And it still can and does.
In contemporary Japanese culture, copyrighted manga is sold in stores right next to fan-produced doujinshi of that manga. Wiki notes that doujinshi artists “rarely secure the permission of the original creator,” and that the largest doujinshi con has over a million freaking people in attendance. Nothing about the practice of fanwork is secret or hidden, and neither are fans prevented, either legally or socially, from making money off what they do. As MB’s own Brigid Alverson writes:
Current copyright laws allow publishers to tolerate a certain amount of remixing of copyrighted characters. …on balance, many observers think that the doujinshi phenomenon is good for the manga market, because it builds interest for the series and characters and provides a training ground for new creators—perhaps the best known being Rumiko Takahashi, creator of InuYasha and Ranma 1/2, who got her start creating doujinshi under the guidance of Lone Wolf and Cub artist Kazuo Koike.
Let’s make this even clearer: in Japan, E.L. James could write and sell Twilight doujinshi and no one would prosecute her for it because the culture, production, and sale of doujinshi adds value to Stephenie Meyer’s original product. In Japan, she wouldn’t even have to change the names to a) profit off her work AND b) increase the value of SMeyer’s work.
I’m not making this point to argue that SMeyer shouldn’t get to prosecute people who infringe upon her copyright. I’m arguing that what’s happening here is not really infringement, because even when it is for profit, it still increases the value of the original product.
My friend Silvia Kundera has a quote on my ‘fanfic is okay‘ post that I think is relevant here:
I am actually the proud owner of an authorized & published One Tree Hill Brooke/Lucas, implied Peyton/Nathan novel that I bought at fucking Borders. And it’s ‘real’ fanfic, man. It’s a pairing-centric fix-it that does a shippy re-write on Season 2. for the author’s preferred couples. It’s exactly what I’d expect to bookmark on delicious when I’m in the mood for het. The only difference between this and a 50k Sheldon/Penny fanfic is that:
— one of these is on my bookshelf & someone got paid for it;
— one is on my computer & someone did it for love.
Has’s argument that publishing fanfic as origfic is “a cynical ploy to market books” fails to take into account the value-added worth of a book that can be tied back to a previous source. The One Tree Hill franchise obviously thought that paying an author to write a shippy fix-it fic would add value and meaning to its overall product. How, in theory, is this any different from EL James publishing 50 Shades and then linking it back to Twilight?
For that matter, in what kind of warped thought process does a for-profit novel with no obvious connection to a franchise get branded as less legitimate than a for-profit novel written directly for a franchise? One is a series tie-in, one is a bestselling novel that you would never connect to the Twilight series if you didn’t already know through word of mouth and the media that it began as Twilight fic. The book 50 Shades of Grey has literally nothing to do with the book Twilight.
I said I wasn’t going to tackle Dear Author’s examination of 50 Shades itself, because it’s a maddening, dishonest red herring of a post, but—okay. Look. Dear Author focuses a lot of time on attempting to decode how transformative the new, names-changed version of James’ fanfic is compared to the original version. They devote an entire post to the task of comparison which starts by doing a literal find/replace count on the character names. This is an EPIC example of missing the point. The side by side comparison never once considered how similar the work of fanfiction itself was to Twilight, and how far removed the characters may have been from Meyer’s to begin with. Because honestly, most people picking up 50 Shades of Grey would never be reminded of Twilight—prolly because Twilight is about TEENAGE VAMPIRES AND NOT BDSM PORN, JUST A THOUGHT.
And I’ll add: the DA side by side comparison is also an epic example of rudeness, since they obviously acquired their copy of the fanfic after the author had removed it from the web. In other words, they dug up her deleted fanfic just because they could. There is absolutely no reason for a side-by-side comparison of MotU and 50 Shades except to attempt to humiliate and shame the writer, and to imply that all she did was change some names around, AND to imply that changing some names is all ANYONE does when they convert their fic to original fic. That is. just. SO INSULTING. It’s so insulting that I’m not going to devote a whole separate post to responding to it because I think it’s completely duplicitous.
Because you know what words they didn’t do a find/replace on? VAMPIRE. WEREWOLF. SPARKLE. FORKS. Possibly because none of those central elements of Twilight are anywhere to be found in 50 Shades. Oh my god I just. okay. moving on.
Is the argument here honestly that the success of E.L. James’ novel is somehow a shameful thing because it dares to piggyback on Twilight’s success?
Um. Then what the hell has the publishing industry been doing since 2005?
Because correct me if I’m wrong, but I thought we’d spent the last 7 years seeing hundreds upon thousands of Paranormal YAs flooding bookstores. I thought I’d spent years seeing bookstore displays using “If you liked Twilight, you’ll love this!” as a promo to sell books. I thought I’d seen dozens of books being reprinted specifically to have iconic red and black covers. I thought I’d seen Wuthering Heights, Pride and Prejudice and Romeo and Juliet all being explicitly appropriated and repackaged for teenagers as books Bella and Edward love. Did I just make all these things up?
Er. No?
It is intellectually dishonest to handwring about undue influence because a few dozen of Twilight fandom authors are owning up to doing, explicitly, what the publishing industry has been blatantly encouraging the entire industry to do for years. Why on earth shouldn’t E.L. James market her book’s appeal to Twilight fans, given that that’s exactly what publishers want a book to have?
And the thing is you usually never know what the sources of influence are as long as they aren’t disclosed and aren’t completely overt or apparent in the work itself. What if Left Hand of Darkness really is a Star Trek fanfic? What if Inception really is unauthorized Paprika fanfic? After all, Nolan calls it one of his “principle influences.” What if “Firefly” really is unauthorized fanfic of “Cowboy Bebop? After all, Joss said it had anime influences. I’m pretty sure no rights or attribution was ever given in these cases. Does that mean the influence wasn’t felt? Nolan even said he based the character of Ariadne on the main character of Paprika. But it’s okay, because clearly they’re just general tropes, right? Much like the character trope of a young spunky heroine falling in love with a seductive, dominating hero….
In all of the cases I mentioned above, there is a documented influence because the creator was familiar with the previous work and its genre conventions. Are these things fanfiction? A better question is how aren’t they fanfiction? And what’s more, how don’t they add value to the original work? I like these specific examples because I watched Cowboy Bebop after I heard Firefly was based on it. I watched Paprika and the film Dark City because I heard Inception was based on them both. I finally decided to take the plunge and watch Original Trek after I read Left Hand of Darkness. Even when influence isn’t openly claimed and owned up to, value still reflects upon the original inspiration.
And whether or not Twilight fans and critics want to admit it, there’s nothing harmful about 50 Shades’ success. Stephenie Meyer’s fans aren’t going to stop being fans of her books just because 50 Shades exists. But fans of 50 Shades might decide to go back and read Twilight, if there’s anyone out there who hasn’t yet. These two different novels can co-exist, just like they already do in Japan. These works amplify each other, to the credit of all.
Later: Part 3—the “morality” of all this, and new ways to think about creative autonomy!
anatsuno says
March 24, 2012 at 3:07 pmYou very nicely debunk how much bull is involved in trying to shame 50 Shades for doing what the publishing industry is doing in terms of marketing books, but there’s another thing I would like to point out here as well, and it’s that trying to shame 50 Shades (or indeed, anyone, profic writers and book publishers alike) for daring to try and make money seems to be built upon an underlying idea that there are things it’s okay to do for love and things it’s okay to do for money, but the twain shouldn’t meet or cross, or something.
Which, okay, NO. I imagine that the people over at DA would not actually support this idea once laid out like that (surely they know from “doing what one loves” and I’m pretty sure they’re generally supportive of people becoming romance novel writers from their love of romance novels?) – yet the unspoken opposition between doing it for love/for free and doing it for money (uncool) is super pervasive in their whole approach. And I mean, not only is this dichotomy silly – I despise it – but also, do I need to mention that’s it’s rooted in puritanical thought, or point out how it looks/feels when you replace it with sex? Yeah, no thank you. If we’re going to underscore a system of ethics with the madonna-whore dichotomy, I’ll always end up (proudly) in the whore’s camp.
This might not be coherent enough – I’m distrated by my hunger. I might regret some hastily chosen wordings here, but I hope it makes at least a little sense.
Aja Romano says
March 24, 2012 at 3:58 pmThe criticism about fandom on this front comes from two directions, I think. First there’s the “what? you’re wasting your time writing fanfic instead of trying to get paid? why would anyone want to do this for free?!” which is something I’ve heard directed at myself a lot, especially by people outside of fandom. And that’s not something you ever hear amateur musicians or artists or photographers getting asked. There seems to be a default assumption upon the part of the writing community that anyone who can write should naturally want to throw themselves into writing for a career, despite the many difficulties and struggles that entails and the many issues the publishing industry has. This is, I think, what ironically causes the existence of that faction of fans who think if you’re not in fandom because you’re working toward publication, then you’re wasting your time. I also think this feeling is what causes a culture of fans who run their own e-publishing business to spring up in the middle of fandom, so I’m not saying that impulse is a bad one at all. But it’s not some kind of LAW.
It’s also very tied to capitalism and the idea that the only kind of value that matters is monetary value. I’m sorry, but it’s so much more than okay to want to write purely for love, affection, kudos, and fanart. And I think this attitude is extremely threatening to the publishing industry, because not only are they losing their status as Gatekeepers to literature, and losing money in a digital culture, but they’re also losing large swathes of potential bestsellers to fandom, to the idea that it’s okay not to SELL your work.
And I think that kind of leads to the need to form some sort of mental divide between them/us. The “how DARE you sully the pureness of your love by trying to get paid for it!” mentality is really, I think, about *preserving* that divide. Because if fandom remains a purely harmless primordial soup of mediocre writers, then the publishing industry doesn’t have to change or adapt or deal with it, right? But if fandom actually evolves into an autonomous group of people who a) not ONLY reject traditional publishing and the idea that things have to be done for profit 100% of the time, but b) ALSO become capable of producing, marketing, and generating bestselling works that are for profit, well, then, the whole system of traditional production and the motivations that get people writing traditional literatutre—all of that is at risk. All of that has to be re-thought.
So the kneejerk reaction, I think, is to simultaneously sneer at fans for not being “good enough” or ambitious enough to write original fic, and then attempt to keep them in their place with a “how dare you have the audacity to try to be one of us.”
pesky fans get off my lawn, etc :D
anatsuno says
March 24, 2012 at 5:40 pmRight, it’s about preserving a division that we as fans mostly claimed, as you say, for self-preservation than any other reason. I’m just… not interested in preserving that divide, and even less when it amounts to implying that there is any purity anywhere that can be sullied. That just— never sits well with me.
Aja Romano says
March 24, 2012 at 6:37 pmoh! let me clarify: i meant, when i referred to the creation of the “us/them” divide, that the creation and preservation of it, in this sense—the literary merit sense—was being done by those in the publishing industry. (Not everyone — I know there are lots and lots of publishing industry denizens who are also fans and who also support what we do.) And we, for our own protection, feed into it by insisting that we don’t *want* literary status conferred on us for our creative efforts, really, we don’t!
So, even though we’re being truthful—most of us don’t want to get paid for our fic—the fact that we don’t want to get paid for it gets turned into yet another reason fanfic is inferior. Because, oh, well, if it’s not good enough to pay for it’s not good at all, right?
Shelly says
March 24, 2012 at 7:23 pmWhile doujinshi are sold side by side in Japan with originals, it’s with the understanding that dj artists will not try to sell large amounts and make money. One artist who ignored this and produced and sold 15000 Doraemon djs found herself sued for it.
http://comipress.com/news/2007/02/04/1456
It was a warning that the publishers don’t mind fanworks, but do mind when someone else is making too much with their properties.
Aja Romano says
March 25, 2012 at 1:01 amYeah. The truth is this is not the first time that a book that started out as a fanfic became a major bestseller. I know of one that actually won the John W. Campbell Award. But it’s the first time a book that the general public *knew* was a fanfic became a major bestseller, which is the real issue, I think.
The difference between fanfic and doujinshi is that obviously fanfic getting turned into original fiction actually then *does* become original, unlike doujinshi where you know it’s derivative work based on the source material. But my point is just that if doujinshi can exist and thrive without normally hurting its canons, then surely, how much more can a fanfic that actually gets converted into new material do the same thing?
Travis says
March 25, 2012 at 4:21 amYeah, doujinshi are generally sold at prices that cover the cost of producing them, not to make a profit.
Clare-Dragonfly says
March 25, 2012 at 4:33 pmThis is really interesting—I’m looking forward to the next part! The examples of profic that are or could have been considered fanfic also made me think about The Hunger Games. I’ve heard a lot of complaint/controversy from people who think that Suzanne Collins ripped off Battle Royale. Now, Collins has said she wasn’t influenced by Battle Royale—and of course the concept is much older than either work—and I’ve used that argument myself, but at the same time it bugs me because, so what if she was? How would it make The Hunger Games any less legitimate if it was inspired by another work? I never thought of it in fanfiction terms before. Of course, if I’m having an argument with somebody who thinks The Hunger Games did rip off Battle Royale and is therefore less legitimate, bringing up fanfiction probably won’t help my case, but it’s interesting nevertheless!
hostilecrayon says
March 26, 2012 at 3:57 pmEvery time you list the bulletpoint “might start off an ever-crazier circle of fanfiction based on fanfiction.” My first thought is “Remix Redux! TOO LATE.”
This is probably one of the issues I am the fuzziest on, and love seeing you hash it out in a way that makes sense to me.
Let me explain. Before I started writing fanfiction, I wrote original fiction. In fact, from my youngest ages, I knew then that writing was something I wanted to do for the rest of my life. I’ve had many interests that I’ve pursued, but writing was something that was constant. Of course, it’s trained into us from a young age that to be a ‘writer’ means to either choose to be a starving artist type trying to make money and failing, or to in fact publish and sell a zillion books and tour the world to sign mountains of books in dinky bookstores everywhere. Outside of fandom or original fiction hobby writers, I have never had anyone give even the slightest inclination that it had ever dawned on them that to be a writer is simply to be someone who writes. Always, money and publishing and the like are what they think of, and they always ask ‘have you been published yet?’ or ‘have you submitted anything yet?’ or ‘when do you plan to publish?’ This says so much about how people feel about writing – apparently, it is work, and why would anyone willingly do work for free? (Nevermind that their idea of free and my idea of free is different – but you’ve addressed this concept several times.) Growing up always answering the question “What do you want to be when you grow up?” with “I want to be a writer/author!” I was one of those who chose to write fanfiction to hone my skill – it was my go to excuse when someone asked me WHY FANFICTION? I’d never submitted anything for profit, but even at 18 I knew I had some serious issues and could not tackle the project that I plan to finally undertake again in a few months (nine years later), so when I found fanfiction, I thought, hey, I can write all I want and never feel badly because I suck so much I can’t get published.
Imagine my complete surprise when I found out that the majority of my very prolific fandom friends, people who wrote things better than most books on the shelf at Barnes and Nobel, had absolutely no desire to publish. I still remember the shock learning that was to my system. And I had some embarrassingly horrible thoughts about this, because at the time, I couldn’t separate the concept of ‘writer’ from ‘person working on publishing’. Did they not think they wrote well enough? Had they been rejected and now they’re discouraged? Are they afraid to go through the publishing process? Cowards. All of them.
Obviously, I feel very, very differently about this now, and I know that I thought they were cowards because I was a coward.
I always loved fandom, but I went into it thinking it was a crutch. It was a hobby that would eventually be discarded when I became a real writer. I was everything you speak out against, which is why I love your posts so very much – it is people like you who make the difference to people like me. I came into fandom with years of societal training telling me that what I was doing wasn’t legitimate, that I could not be a real writer unless I was trying to publish, and that any writing not for publishing should specifically be written to hone your craft so that you could publish something later. For the love? For the community? For the inherent value of creation? I knew nothing of these things. I knew that I loved to write, but I thought that part of loving to write meant I had to have a single-minded focus on publishing, because that is the only thing a writer can do.
The best way to learn about the value of writing is to write it for the love without letting the other things interfere, and this is something best learned by doing. This is the gift that fandom gave to me. Before, I only loved my work with the contingency that people had to think it was good enough to publish. Now, I just love my work. I learned the value of writing what I wanted to write, of answering my own questions, of pushing myself just to see what I could do because I wanted to explore my limits, to push and break my boundaries just to better learn to express what is in my head. If I wrote only to publish, I’d never have done the things I’ve done – some of which are the best pieces of fiction I have ever produced – because I would have been too afraid it was not publishable. I loved to write, but I didn’t write for me. And how ironic is it that joining a community that primarily deals in exchange taught me how to write for me?
In fandom, I learned what true beauty was. In fandom, we can dare to dream, we can dare to reach beyond what many published authors are willing to do (or perhaps even allowed to do by their publishers), we can touch something that mainstream fiction is sorely lacking these days – heart. We dare to stand taller than people believe we can because we’re not adhering to the limits being placed on us by others – we are too busy listening to our hearts to hear them; too busy being moved and awed by what we can do simply because we dared to try.
I’ve read many books that moved me. But before I learned what it was to be in fandom, I had never been moved by something I’d written. I had assumed that this was just what being a writer was about – I could get excited about ideas, but because I am the creator, I couldn’t actually be moved by it. I couldn’t have been more mistaken. In fandom, I have now felt what it is to have my heart lurch in your chest as I write a painful scene. I now know what it is to cry with my characters. I now know what it is to feel that amazed wonder when I somehow write so far above and beyond what I thought my ability was, I feel like I’ve channeled something, because there’s just no way I could have written it. Except I did, and I did it because fandom taught me how to write with my heart.
Fandom has immeasurable value to me, and I cannot think of anything that would change the world for the better more than spreading this feeling to everyone in the world.
Sorry, I sort of wrote a book. It’s just, I have so many feelings about this, and I have so much respect and admiration for your ability to write these posts, to articulate everything that is forever in a jumble in my head, and spread this intense love that fandom has given me as far and wide as possible. You’re amazing.
Spiced Wine says
March 27, 2012 at 3:41 pmYou speak for me.
I always wrote o-fic – just for myself. I am some-one who writes all the time, has done since the age of ten. I have never believed I was good enough to be published, and that was never a driving force, a dream, or a desire, to be frank. I *had* to write, and so I wrote. Reams. Millions of words. And then in 2007, I realized what I had wanted to do for more than twenty years was write in Tolkien’s universe. So I did, and still do. I’ve also discovered some fanfiction authors who produce the most superlative work, the kind of writing I want to read. Fanfiction has enriched my life, my writing and reading experience immeasurably.
hostilecrayon says
March 27, 2012 at 7:29 pmYES, that drive to write – that feeling that if I don’t, I might just explode – THAT is how I feel about writing. <3
Spiced Wine says
March 28, 2012 at 4:08 amFeeling you might explode. Exactly. Feeling snappish, restless, *itchy* when you cannot. I took to carrying a pad and pen around with me, even to work. In any free moment, or lunch-times, I would write. On holiday. if it was not writing, it was reading. I bought a weekly grocery shop last year, packed it, paid for it and got into the car without it, because I was writing a chapter of a current WIP in my head. I burn dinners quite regularly. My best evenings in my mate teens and twenties were not spent out at a pub or club, or with a b/f, but sitting at home with a glass of wine, writing. It’s a drive that only seemed to increase the more I did it. It did not burn itself out. I drew maps of fantasy worlds, thought about climate and trade and the peoples’ cultures. Now I honestly look on all those years of writing o-fic as practice for writing fanfic. And I’m still learning by reading authors who make many profic writers seem amateur.
When my family realized that I spent most of my free time with nose in a book or head bent over a pad, writing, naturally they began to ask me what I was writing, was I writing a book, and as I grew older, when was I going to submit it to a publisher. But that was not the reason I had begun writing, and it’s not why I write now. I have stories to tell. I am happy now that some people like them and follow the series, but I wrote for a long time without showing my stuff to any-one, writing to allow the ideas and characters to pour out of my head onto paper (or a monitor) . But all those years of writing o-fic I finished one story, One. When I started writing fanfiction I wrote, and finished, and started other stories, and finished, (although one might say none are finished as it is a series). I found my ‘zone’ in fanfic, and I love it. I’d write offline and privately if I had to, but I will always thank fanfiction for allowing me to write what I had wanted to write for twenty-six years, and *telling* me it was permissible to write for love, from passion within some-one else’s world.
Franzeska says
March 31, 2012 at 9:57 pmCowboy Bebop is what always gets cited, but Outlaw Star was what I immediately thought of when I saw the Firefly pilot… to the point that I couldn’t watch Firefly because it annoyed me too much.