Published in Canadian Bookseller, Volume 4 2008:
     At BookExpo Canada’s June 13 session entitled “The New Copyright Horizon,” Grace Westcott, a lawyer focussing on copyright, media and the cultural industries, gave a presentation on fair dealing and fan fiction. Fan fiction is material that fans have written using characters and settings from works they love. It can be considered “user-generated work” and in our increasingly participatory culture, is seen as the “emerging voice of the user.” Put simply, it is the taking of other people’s work and reworking it.
     The phenomenon is not entirely new. Jean Rhys’s wonderful Wide Sargasso Sea is a sort of prequel to Jane Eyre, and Rosencrantz and Guildenstern Are Dead is an offshoot of Hamlet. Both are brilliant creative works, masterfully written.
     In her seminar, Westcott mentioned the novel The Wind Done Gone by Alice Randall, which is a slave perspective on Gone With the Wind, in which Cynara, the daughter of Gerald O’Hara and Mammy, tells her life story. A quick reading of the first page of The Wind Done Gone reveals a serious slip of narrative tone. While the voice on the page is effective in suggesting that of a barely-literate person using simple short sentences, one sentence stands out harshly for being too poetic and grammatically correct. Describing her white half sister, the narrator writes “She was not beautiful, but men seldom recognized this, caught up in the cloud of commotion and scent in which she moved.” Clearly, some fan fiction is better than others, a point Westcott elaborated on later in her seminar.
     In an essay entitled “Friction over Fan Fiction” that Westcott published online at the Literary Review of Canada July/August 2008, she wrote of fan fiction, “it is at the heart of a ‘free culture’ movement that celebrates the making of user-generated works and ‘appropriation art,’ and seeks to liberalize laws to let individuals remix and mash-up others’ copyrighted works to create their own. Not coincidentally, all this is happening at a time when debate over what is fair in the fair use of copyrighted works is receiving more attention than ever before.”
     In her seminar, Westcott explained that the roots of fan fiction are in the second season of Star Trek in the 1960s, when fans began writing their own episodes. An example is the depiction of a homoerotic relationship between Kirk and Spock. Originally printed cheaply on paper and assembled into “fanzines,” this growing genre of material has migrated to the Internet and grown enormously. At the time of writing this article, a Google search of “fan fiction” resulted in about 14,800,000 mentions. A specialized vocabulary has developed. See the sidebar for some examples.
Ideological Arguments in Favour
     Westcott explained the “everything since Homer is fan fiction” school of thought, which holds that all writing is part of the tradition of retelling stories, or a shared cultural tradition that dates back to Homer. Proponents of fan writers see them as active interpreters and not just passive consumers, added Westcott. They reject a romantic ideal of the author and regard originality as a suspect concept. Proponents also see a “right to interpret” other works, to engage with culture and talk back to “big media,” and that fan writers are not happy to remain in a passive role.
      “Advocates for fan fiction,” Westcott wrote later, “are trying to counter a perception that fan fiction is a marginal endeavour, a bizarre pastime for emotionally immature people obsessed with reworking ephemeral works of popular entertainment to produce amateurish, second-rate writing.”
Is It Legal?
     Westcott cannot say whether fan fiction is legal. “To date there have been no court decisions on the point in either Canada or the United States,” she writes, “so the legal status…is uncertain.”
     In her June seminar, she went on to explain U.S. and Canadian law pertaining to the copyright of characters. In the U.S., there is significant protection for distinctive fictional characters, extending to derivative works based on original work. Canadian law found copyright in fictional characters that are sufficiently creative, distinctive, thorough and complete.
     “Word portraits are harder to protect than graphics,” she said.
Fair Dealing
     Declaring that fan fiction falls outside of fair dealing, Westcott then explored some of the purposes that are considered fair. Fan fiction, with its tendency to emulation, cannot be considered as criticism. Writing fan fiction as a form of private study could be acceptable if it remained a private act of creation. Yet posting the work on the Internet moves it into the public arena.
     Promoters of fan fiction point out that it can increase the market for the original work by raising awareness and interest, benefitting its creators, publishers and booksellers. As Westcott articulated in her essay, fan fiction “is extremely unlikely to substitute economically for, or damage the market of, the original work.”
Moral Rights
     Although Westcott pointed out that moral rights tend to be overlooked in the U.S., she explains online that “in Canada, and much of the rest of the world, an individual author has the moral right both to be credited as the author (or to remain anonymous, if he or she chooses) and to have the integrity of the work protected. That integrity is infringed if the work is, to the prejudice of the honour or reputation of the author, distorted, mutilated or otherwise modified, or associated with any product, service, cause or institution.”
     She points out that poor-quality fan fiction can harm the writer’s reputation, as can an association with a cause that the writer doesn’t support. Westcott then posed questions about the effects fan fiction can have. “What about an innocent non-fan who finds fan fiction by a Google search? What if kids google Harry Potter and find a porn version?” Yet fan writers sometimes post disclaimers and do not try to pass themselves off as source authors.
Transformative Use    
     Westcott mentioned Rebecca Tushnet, a law professor and founder of the Organization for Transformative Works (OTW), who supports fan fiction. Westcott explains Tushnet’s claim as “non-commercial fan fiction is fair use…because it takes the source material as raw material and creatively transforms it in ways that copyright law is meant to encourage.”
     OTW’s mission states that it was “established by fans to serve the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms. We believe that fanworks are transformative and that transformative works are legitimate.”
     Westcott explained that arguments against fan fiction being transformative include characters and settings that are distinctly recognizable, and that it tries to emulate the original source instead of being critical of it.
     Westcott pointed out that fan fiction is not commercial, although The Wind Done Gone was a financial success. At the time of writing this article, Amazon.com listed it as temporarily out of stock. Some fan fiction can even be a critical success.
     Westcott spoke about George Norman Lippert, a Harry Potter fan who wrote and posted a novel about Harry’s parents, called James Potter and the Hall of Elder’s Crossing. Australian media speculated that it had been written by J. K. Rowling, which led to enormous attention for Lippert. Rowling even had to deny publicly that the work was hers. Westcott questioned whether fan fiction, even when good, dilutes the brand.
Fairly Intended
     Westcott also discussed whether fan fiction is fairly intended. She said it is strictly an amateur hobby, done for no profit and is no substitute for the original or its market. She then declared that “fan fiction remains legally precarious.”
     Westcott identified the danger of “reverse plagiarism,” which can arise when a writer who is working on a series, has seen fan fiction that explores an idea that is similar to the writer’s and the fan claims that the writer stole the idea. While the U.S. courts do not permit copyright to be used to “arm an infringer” Westcott explained, the result can still be “strike suits” in which a fan sues without hope of winning the case but may win money in a settlement.
     “Even without a lawsuit,” writes Westcott, “if a fan speculates online that the series writer plagiarized his or  her idea, it may be enough to seriously damage the author’s reputation.”
     Westcott touched on the notion of best practices in her seminar, but articulated a solution more clearly in her online essay: “fan fiction comes from basically ‘a good place’ [and] authors, media owners and fans…[should] develop a code of fair practices to define what is fair in fandom, to allow fans to engage creatively with the works they so sincerely admire.”
[sidebar]
Fan Fiction Terminology
the canon – original source
the fanon – fan-generated material
OTP – one true pairing
drabble – a 100-word story
drabblepots – collections of stories
beta editor – makes suggestions on stories
Sub-genres of fan fiction:
mpreg – a man gets pregnant
deathfic – a major character dies
curtainfic – characters, typically a gay male couple, become domestic, (buy curtains)
AU – alternative universe, or a new fantasy setting in which characters are placed
PWP – porn without plot
BDSM – bondage, discipline, dominance & submission, sadomasochism
Mary Sue story – a fan writer writes herself into the plot
[end of sidebar]