link to: 12:38 [GMT-6]

1. Almost everything spewed forth in public about the legal status of fanfic — on both sides — is wrong.

There is no one legal theory that covers this area¹; there is no one set of national laws that covers this area; there is no perfect defense that covers this area; there is no bloody moral or legal high ground anywhere in this fetid swamp. There isn't even a resort to "common courtesy" as a default condition that somehow occupies the moral high ground, because some works so desperately deserve vicious parody via fanfic (I'm thinking specifically, but not only, of a certain notorious, pseudonymous "creation" and purported gedankenexperiment that I will resort to Wikipedia to identify) that even if a piece of fanfic "crossed the line" it would still, nonetheless, be morally — and perhaps even legally, if the lawyers were good enough! — justified.

Part of the problem is that the law is incredibly unclear on this. Copyright law may, or may not, cover it; trademark and unfair competition law may, or may not, cover it; and the ultimate problem is that everyone wants a proscriptive rule to argue about, when the inquiry is inherently fact-and-circumstance specific. The better (but not compelling and not universal) position is that fanfic that is "close enough" to be recognizable fanfic potentially infringes the original under both copyright and trademark/unfair competition rubrics, but may have some significant defenses available. The better (and probably compelling, but certainly not universal) position is that the parody/satire of works needs to have a completely new theoretical and actual rubric created for it that is not susceptible to post hoc rationalizations... or, at least, not as susceptible.²

For those of you who resort to "it's fair use!" as your default argument concerning fanfic, remember one simple thing about fair use: This particular castle rests on the sand (or, rather, swamp) of law developed around nonfictional works. Even the decisions that seemed to come closest to approval of fair use as a foundation for fan fiction — such as the analogous, but not directly on point, contrast between the Winter brothers on the one hand and Tony Twist on the other — have substantial connections to nonfictional elements, such as the identity and reputation of real persons depicted (or allegedly depicted) in the respective fictional works. Most fanfic, however, is based on much "purer" fictional referents... which changes the nature of and justification for fair use rather significantly. And far be it for me to suggest that the entire inquiry is flawed at the outset.

2. No matter how good their arguments or benevolent their intentions, fanfic writers do not get to decide what is in the creator's best interests and rely upon that decision as a post hoc rationalization for their own conduct.

This has both strong legal and strong moral components. The moral component is, perhaps, easier to see and explain: Unless the creator is literally incapable of deciding his/her/its (in the case of estates) best interests, that kind of paternalism has no proper place in private decisionmaking. It's one thing for parents to decide that going to a Catholic school is in an eight-year-old child's best interests; it's entirely another for an adult to decide that another adult must perforce attend Sunday Mass... even if that other adult was a lifelong Muslim/Jew/atheist; perhaps even more if that other adult just didn't care.

Legally, it gets even more complex, because authors of fan fiction (and, most of the time, the creators of works being fanficced) at minimum do not understand the legal context of what constitutes the creator's "best interests." There may be substantial tax consequences, particularly if there's an estate (bankruptcy, too) involved; some of the "rights" at issue may be subject to other legal claims, or result in diminished chances for the creator to do exploit those rights him/her/itself; it might result in independent harm to a third party that tarnishes the creator (ask Carol Burnett); it might be any of a million other things with legal consequences. Further, you don't get to decide what aspects of a creator's oeuvre getting "free publicity" from your fanfic efforts — however whimsical, or better than the original, or whatever — are in the creator's best interests. If the creator has decided to abandon that particular aspect — perhaps even is legally compelled to abandon that particular aspect — you, as a fanfic writer/consumer, don't get to second-guess that decision; you don't even get to make that decision in the first place if it's the result of neglect rather than a conscious decision.

For me, the key point is this:

The old meme that "it's easier to get forgiveness than permission" doesn't work anywhere with intellectual property of any kind; the more creative the nature of the intellectual property, the more one must resort to permission as the default. Of course, defaults have exceptions...

And if that hurts your feelings, all I can do is point out that it's an imperfect universe and that you're just going to have to live with it. If the object of your affections says "no fanfic," don't do it... unless, that is, you're an experienced scholar and really are engaging in critical commentary and/or protected parody, and in any event you're prepared to accept the consequences (especially, but not only, if you're wrong). If you, as a creator, say "no fanfic," be prepared for the opprobrium that will be coming your way (whether you see it or not). If you, as a third-party exploiter (such as, say, a certain somewhat disreputable social-networking nexus that places ads on viewed pages), think that you can shove all responsibility off on third parties when you're explicitly contemplating (and even encouraging) this kind of thing, you need to be prepared for some consequences, too. And if you, as a fanfic reader, want to pretend that you're not encouraging some pretty ugly stuff along with the "better stuff" that you no doubt believe you're restricting your reading to, there's not a lot I can do to stop you; all I can do is tell you to grow up.³

<SARCASM> Of course, if the various arms of the entertainment industry would just stop putting out such a load of crap in the first place, maybe that would cut down on fanfic... because an even lower proportion of the fanfic would be of comparable (or even superior) quality to its inspiration. </SARCASM>

1. For a barely-scratches-the-surface introduction to some of the legal framework, see my incomplete, still being revised essay on fanfiction.
2. For example, the "transformative use" meme flowing from the 2Live Crew case has pretty clearly demonstrated the intellectual dishonesty and bankruptcy of many of its proponents, precisely because it is a post hoc rationalization. It's an unfortunate turn of phrase that too often masks behavior more common to first-grade recess than anything else... and even the more levelheaded proponents of transformative use seldom understand that transformation in this sense is both tautological and solipsistic, which in turn means that determining that a particular use is (or is not) transformative provides no logical foundation for evaluating a different instance.

   I'm not claiming that I have the solution; I'm claiming that there is no general solution, just as there is (almost certainly) no general solution to the n-body problem. That's part of what makes creativity possible and fun in the first place.

3. And you won't, particularly not if you're elected to public office; some of the right-wing retellings of US history that are floating around right now are more childish than the worst fanfic, and the left has (historically) played that game, too. Sadly, this only demonstrates the problems with determining fair use in mixed fictional/nonfictional accounts even more clearly...

Labels: arts, copyright, culture, intellectual property, jurisprudence, mass media, publishing