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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!

Hello, MB! First off, in response to requests to expand on a few of the terms I’ve been using in these posts (and thank you all so much for your comments!), I’ve created a glossary here! I will update it as new terms come up, and I will try to give more clarity in posts where concepts may not be clear. :D

Also! I have to say thank you to everybody for giving me such a warm welcome and providing such great comments! I really, really appreciate it and I hope that the gargantuan post I’m about to drop in your lap isn’t enough to permanently put you off this column. IF IT HELPS I am also subliminally recruiting for my cult.

Welcome to the second (or, really third) in a series of posts rebutting this week’s Dear Author series on fanfiction. The post I’m going to address today is a doozie: “Fanfiction: A Tale of Fandom and Morality.”

Not gonna lie, this panda is me writing this commentary. I am this panda.
It’s been a few days of oh god please let the horror end / oh god how is this still not done

The entire Dear Author series on fic was prompted by the success of the novel 50 Shades of Grey, which began its life as a Twilight fic called “Masters of the Universe.” This novel is not the first Twilight fanfic to “go pro”—there are in fact a shitload of other ones. I have a more general post about the Twilight pro-fic phenomenon over at The Mary Sue today, so in this post I won’t focus on it so much as the argument around it. Fanfiction has for a long time existed as the elephant in the editorial room, and the wild success of 50 Shades is finally, for better or worse, forcing the conversation about whether or not fanfic is legitimate to move foward after a steady decade and a half of rapidly advancing the argument in fanfic’s favor. Suffice it to say that people on both sides of the argument, within fandom and outside of it, are up in arms about the fact that Twilight pro-fics have the audacity to openly link to their fannish origins and then sell different, “original” versions of themselves.

Things I’m Happy About (A Brief List):

• that the author of the DA post, Has, is someone on my end of the spectrum of perspectives about fanfiction.
• I’m happy that finally!!!! there is a NEW ARGUMENT about fanfiction! :D
• I’m happy because Has’ argument illustrates how overwhelming remix culture is, how it’s confusing everyone, how it’s rapidly calling for paradigm shifts in the way we think about intellectual property, property law, copyright, publishing in the age of digital media, and collaborative creative culture.
• I’m happy because this whole discussion can be seen as as a call to renegotiate copyright in the age of remix culture.

Things I’m Not Happy About (A Slightly Longer List):
Has makes a wide-ranging argument that for-profit fic converted from fanfiction is immoral. These are all direct quotes from the source post but I’m going to bullet-point them in the interest of simplicity. Has argues that “Taking an entire fanfiction story and turning that into a published book is:”

• ethically wrong
• 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

Okay, so. We have a number of different arguments being made here about why specifically profiting from fanfiction is dangerous, unoriginal, and immoral. There’s also another argument that’s not explicit, but which gets discussed repeatedly by fans in comments: that profiting off fanfiction is a violation of the code of ethics of the fan community. As commenter “S” articulates: “It’s an unwritten contract – fanworks are not to be made for profit.” Has herself is an active, proud member of fandom. She says that “Fanfiction is a great medium where fans can enrich and be a part of the world that they love.” Then she notes that, “historically, however, fandom has not been about making money, and any attempts to do so by fans were frowned upon.”

I want to start by examining this code of conduct in relationship to copyright. Then, in Part 2, I’ll talk directly about the value-added status of works published for profit under Fair Use, and then in Part 3 we’ll discuss the fears that all of this could hurt fandom. And finally we will cycle back around to morality. But first I’m going to give you a gif which illustrates your horror at realizing how involved this argument will be:

you won’t see the copyright infringement coming til it strikes

Which Came First, the Fandom or the Fic?

Fandom developed in the margins of pop culture; western media fanfiction in particular is tied to a sense of illegitimate production, subversive content, and bootlegged distribution. As U.S. and European fans have grown more open about what we do, we all insist that we do what we do for love and not for profit. And it’s true, we absolutely do, and will keep on doing so. But what gets forgotten is that this tacit ethical code grew out of the need to protect ourselves against the stigma of being thought of as “plagiarists;” as “unoriginal,” “untalented,” “only interested in porn,” “immoral.”

In other words, it was a code of ethics that grew out of marginalization, shame, and fear. Keep silent about what we do. Don’t give the creators/rightsholders any reason to care that you exist. Stay underground. KEEP IT SECRET. KEEP IT SAFE.

But all of this was before the age of the internet; before music sampling became commonplace; before Henry Jenkins published Textual Poachers, the first seminal academic work to argue that fanfiction was actually amazing; before Comic-Con became cool and creators started routinely interacting with fans; before fans started creating a discourse around what they did which challenged the pre-existing idea of fandom as shameful; before Youtube made fan response to a previous work literally just a click away; before it became clear to many of us that we are currently living in the middle of a remix culture where the gatekeepers of creative works are being more or less obliterated by the nature of global connectivity and the spirit of communal collaboration. And many fans, having grown up in this culture, naturally don’t see why they should keep fanwork secret and safe. It’s not hurting anyone, and it arguably is helping to create a more diverse world and inject multiple perspectives into discourse about creative works. What’s there to be ashamed of? This is a drastically different view of fandom than many people, fans included, hold even now, because the stigma of shame attached to geek culture is so high. But for a rapidly growing number of fans, what we do isn’t subversive at all. It’s creative, inventive, time-consuming, fulfilling, and cool.

I’m relieved that I don’t have to disagree with Has over the legitimacy of fanfiction; but I think we disagree about the source of this legitimacy. Has seems to feel fanfiction is legitimate because of the fact that it has a culture and community around it, because it has lots of people involved in creating an active thriving subculture. In other words, since lots of people are doing this thing, it’s okay.

I think this is completely backwards; and I feel like this is the crux of why so many arguments about fanfiction seem to many fans as though they’re being framed all wrong.

In my experience, most arguments about whether fanfiction is okay begin by examining the relationship of fanfics to copyright law. From this perspective, the Fannish Code of Conduct is always going to be front and center, because when we, as fans, are constantly seeing our activities framed with a view towards establishing their illegality, of course our first line of defense is always going to be “but we’re not doing it for profit!” and also “but look how many of us there are! You can’t sue all of us!” So endlessly the debate about fanfic cycles back around to the fact that since so many fans are doing it but they aren’t trying to profit from it, it’s okay to let them keep doing it.

But the impulse to expand on other people’s stories occurs on an individual level. It is a fundamental part of creativity. It happens whether or not you realize that it’s happening. I still remember reading an interview with Meg Cabot from years ago where she talked about how she wrote fanfiction on her own, privately, without ever realizing it was fanfiction. And Cory Doctorow claims to have written his first story at age 6—Star Wars fanfic. You cannot tell me, you will never be able to tell me that there are not millions of authors throughout the centuries who have not created books/stories/songs/movies/comics/art/parody in just this way. We don’t do it because we make a conscious decision to imitate other people’s styles, characters, voices; we do it because it comes naturally to us. We do it because we yearn to know more about what would happen if characters we love encountered new situations. We do it because imitation is how we learn to find our own voices. We do it because we want to see ourselves participate in something we love. And sometimes we do it because we get paid to do it.

You don’t have to have a community around fanfic to legitimize it. The community, as I talked about in the last post, just makes it that much more vibrant and wonderful, but the community doesn’t control or cause the flow of ideas. Stimulate, yes. Hamper, lol, often, as anyone who’s ever gotten sucked into Tumblr or TV Tropes and subsequently lost hours of their life will tell you. But the ideas exist apart from the community. Fanfiction will exist even if you take fans away from their fandoms. The fannish code of conduct—that we don’t do this for profit—was developed by our subculture to protect itself. It should not be taken as being some kind of literal restriction on the nature of creating fanfiction, because it can’t be. It is physically impossible to place a barrier between you and an idea simply because the idea might be linked to someone else’s.

Most people in the publishing industry know this, because, let’s face it, everyone knows about novels that began as fanfics, of authors who filed off the serial numbers, of fans who stopped writing in the middle of a work in progress to convert their fic into a novel because they realized they wanted to do something different with it. Some of us even know of editors and agents who explicitly seek out authors of fanfic and request that they convert those fics into originals. I have had editors approach me about existing fic; I have had friends approached by editors about their existing fic, as well as to request new fiction from them on the strength of having read their fanfic. These incidents have been happening for decades, and the only difference is that now a few fans are emboldened enough by the openness of the times we live in to actually claim their novels’ heritage as fanfics. They are actually attempting to give credit to the authors who inspired them, instead of changing names and contexts in secret and shame the way fans have had to do for years, all with the tacit complicity of the publishing industry.

When I say that framing fanfiction in the context of its relationship to copyright law is all backwards, I mean that the framework implies a causal relationship: copyright law exists, therefore fanfic is illegitimate. The opposing argument to this view has always been “but the fans are all right so let them keep doing it!” But transformative literature exists whether or not copyright exists, and the impulse to rework pre-existing stories is upheld and reinforced constantly in our society, be it through Pride and Prejudice and Monster Trucks or through endless revisions and retconnings of superhero myths and other comics universes, constant exploiting and profiting off works in the public domain, and literally innumerable examples of historical RPF which no one can copyright.

All of the agency, all of the sociohistorical evolution of narrative, all the power of creative impulse, stands behind the fanfic writer. It does not stand behind copyright. Just as you can’t place a code of conduct around the act of writing down an idea, copyright can never completely rein in the creative impulse to rework stories, because frankly that impulse is mightier than copyright law and will always be. You can’t order the entire of fandom to cease and desist, because even if you did, those works would all continue to be written. Only they would all be written a) in the privacy of their own homes, shared with no one, b) written and passed around via bootleg methods which would probably be impossible to control, and/or c) written and turned into “original” fic, exactly as they have been for centuries.

The code of conduct—fanfic is not for profit—is a lie. (Lol, THE CoC IS A LIE, GET IT /terriblepuns) It doesn’t suddenly erase an entire cultural history of reworking previous sources, or the publishing industry’s perpetuation of the practice, and it absolutely never has kept, never will keep, fans from turning fanfic into novels for profit. All it does is keep fans from admitting that they’re doing it, and it keeps the authors of the original work from receiving any kind of credit or residual benefit for having inspired the succeeding work.

OKAY I NEED A DRINK HOW ABOUT YOU GUYS.

Next up: looking at fair use works that make a profit and still fit within copyright. On to Part 2: Copyright, Transformative Fiction, and Value