BUS303: Strategic Information Technology

What's This All Mean for Fanworks?

As a matter of technical definition, fanwork  –  fanfiction, fanart, fanvids, the whole kit and kaboodle  –  is derivative work. So, it's either a fair use or an unlicensed violation of copyright, depending on your perspective and the fine details.

No fanworker wants to be the test case for this, and most creators (there are exceptions) don't really want to be seen as the big bad guys. As a result, there's mostly an unwritten rule in this sphere, which boils down to "don't make money from it, and don't show fanfic to the author".

The first part of that is, you might say, a side deal layered on top of the copyright deal. This was most famously the deal that Lucasfilm had regarding Star Wars fanwork: they would countenance pretty much anything as long as it wasn't done for profit. Hell, in some cases they even hired the creators! (Look up Ryan vs. Dorkman.) And, of course, if you were doing something through a sanctioned outlet like the Star Wars Fan Film Awards, of which there have been many, well, you're sanctioned.

You may have noticed that I was talking about Lucasfilm regarding Star Wars fanwork, and as you might perhaps be aware, Star Wars is now owned by a different company that is historically not as…sanguine about copyright and ownership issues. The fact is, to the best of my knowledge, Disney has not cracked down on Star Wars fanwork any more forcefully (ha, ha); they also haven't done it with Marvel. But rest assured, people are watching.

The second rule applies more to smaller creators, but what it boils down to is that a number of content creators, especially low-margin ones like authors, are scared of taking risks and even more scared of lawsuits (with good reason!). See, even an unauthorized derivative work can have a new and independent copyright in whatever new elements the derivative work added, and the idea of a tangled copyright suit involving a fanfiction creator suing the author of the work upon which the fanfic was based for infringing the copyright in the new elements in the fanfic are the stuff of publishing lawyers' nightmares.

In the early- to mid-1990s, there were two reasonably well known examples in fan circles. One involved the late Marion Zimmer Bradley and a Darkover novel, the other an episode of the television series Bablyon 5; in both, the industry got concerned about similarities between fan work and the "official" work and took corrective, some might say overcorrective, action. The novel got spiked, the episode got shelved for two years while the producers tracked down the fan and got a signed release. There's plenty of online discussion of both cases: I'd start with Jim Hines's analysis of the Bradley matter, and J. Michael Straczynski's own words for the B5 case.

The point is, in the wake of those, a lot of creators, particularly authors, have adopted a "hands and eyes off" policy on fanfiction: they don't mind if you write it, but they won't read it. This, of course, only generally applies to stories and story ideas; fanart tends to be much more relaxed. And, again, this is mostly a matter for individual authors. If you're dealing with corporate-owned stuff like, say, Mickey Mouse (or Iron Man, or Leia Organa), this is less of a concern. But it tends to be the most common rule I've come across.

Another issue that can come up in fanwork is fanvids, where there are multiple overlapping copyright concerns  –  the source video material issues is separate from the song issue. Those are still being worked out, but smarter source video owners are seeing the video as free advertising for the source, while the song owners…well, given the changing nature of the music industry, and the prevalence of video sites, it's a bit tricky for all concerned. In general, there seems to be a live-and-let-live policy developing, thankfully.

What About Facebook's Terms of Service?

I'm including this one because I know I'll get flack if I don't. Yes, every once in a while there's a flap on social media about some copyright licensing term in the terms of service of Facebook or the like. In short, this is bogus.

I would like to include a Snopes link and move on, and if you want that, here. But in short form, you own what you post on Facebook, and all you're giving Facebook at any point is the right to post it. Which, because that's what you want Facebook to do in the first place, is perfectly reasonable.

End of lecture.

Where Can I Go for More?

You mean I haven't bored you to death yet? Wow. OK…

The Electronic Frontier Foundation is the "ACLU of the Internet", the leading organization advocating for civil rights, including free speech rights, online. They tend to be at the forefront of debates about copyright being used to censor or about overly restrictive IP terms harming the Internet, and I urge you all to support their work.

The American Civil Liberties Union is the ACLU of, well, everything, and they do work in this area as well, frequently alongside the EFF.

Techdirt does good reporting on tech/legal issues, especially IP, when they hit the news.

Lumen, formerly the Chilling Effects Clearinghouse, archives DMCA takedown notices and other requests to remove information from the Internet.

The Creative Commons has developed an alternate system for protecting some IP ownership rights while encouraging a sharing and remixing culture.

Some of my favorite scholars in this field include (with their Medium names, or else Twitter handles): Lawrence Lessig, Casey Fiesler (@cfiesler), Tiffany Li (@tiffanycli), Rebecca Tushnet (@rtushnet), Henry Jenkins, danah boyd, Jonathan Zittrain, Bruce Sterling, and John Perry Barlow. I know I'm forgetting some, but that's a starter for you.

Oh, and to all those people I just namechecked?

There, that should do.

Final Words

Thank you for reading this far. Even I'm shocked and I wrote the damn thing. I hope you learned something. Please share this link as widely as you can. If I've managed to use Medium correctly, it should be licensed under a Creative Commons BY-SA license.

Oh, and if I've made any mistakes or missteps, please let me know.