Fan Fiction: Should it be Illegal?
ENG 1020
Spring 2000Critics are divided over the question of whether fan fiction—fan-written stories based upon premises and characters already established in the popular culture medium—is a form of copyright infringement. Television companies, who receive profits from their copyrighted shows, are of the opinion that these fan writings are indeed a form of copyright infringement. They believe that fan fiction supercedes the boundaries of copyright law. Then there are others—predominantly fans—who believe that fan fiction should not be classified as infringement. They believe that banning fan fiction would inhibit the creative form of expression that it has become. Strong evidence suggests, however, that the positive effects of fan fiction outweigh the negative, and for this reason fan fiction should be exempt from the definition of copyright infringement. First, fan fiction does not fit into the strict definition of copyright infringement. Second, the existence of fan fiction causes relatively little harm to the television companies involved, and, third, it is in fact beneficial to both the fans and the television industry.
To understand more fully what fan fiction is one must take a step back and look at the concept of fandom, of which fan fiction is a part. The very first television fandom emerged in the late 1960s with the science fiction television show Star Trek. This show’s enormous fan following was the largest known, and still is. It was at that period that Star Trek’s fan following became known as the Star Trek fandom. Today, this show has become a significant cultural icon in regards to people’s hopes for the future. Another noteworthy item that emerged with Star Trek was fan writings, also known as fan fiction. Most fans use the abbreviated word “fanfic” in their everyday communications. Fan fiction as a genre includes stories that are written by fans, revolving around the characters of a particular television show, movie, or book. Instead of exploring all three, this paper will focus on the television-generated fan fiction.
Over the past three decades, the presence of fan fiction has increased immensely. Fan authors are no longer only a minority comprised of Star Trek fans; now fan writers for hundreds of different series are scattered across the globe, ranging from teenagers to middle-aged adults This drastic change in demographics has become more and more evident with the increasing popularity of the Internet. There are literally thousands of websites on the Internet that are home to many different types of fan fiction. Although the invention of the Internet heightened the popularity of fan fiction, its presence has been well established since the late 1960s when it was most commonly circulated in the form of fanzines. According to Fredric Wertham, fanzines “are uncommercial [sic], nonprofessional small-circulation magazines” (Wertham 33) that are composed and produced by fans. Fanzines generally contain fan fiction, poetry, songs, and art. There are different types of fanzines: those that are based on a single show, those that are based on a genre—like science fiction—, and those that are a combination of everything. Even with the large amount of Internet fan fiction, fanzines are still popular, and their production continues.
With the evident popularity of fan fiction a common question that might be asked is why do fans write fan fiction? Something must compel them to actively participate in a fandom instead of simply, passively viewing their favorite series. The reasons vary from person to person. There is, however, usually one underlying motivation for all fan authors; they write fan fiction out of love for and devotion to a particular show, be it Star Trek, The Sentinel, or The Magnificent Seven. These fans obviously feel that a particular show and its characters are worthy of their attentions and writing efforts.
Of course, there are a number of other subsidiary reasons why fan fiction is written. Several examples of these reasons were derived from a survey of thirty fan fiction readers and writers. The experience of those surveyed ranges from less than a year reading/writing fan fiction to thirty-five years reading/writing fan fiction. Several of the people surveyed listed one reason they write as a break from more professional writing. One fan explained, “I’m a writer. Fan fiction gives me a fun outlet from the more serious, structured work I do daily. I like to write, and working with characters who are well established is much easier than developing new characters from scratch--especially for little snippets [of stories]” (Porter). This holds true for a lot of fans. Writing about characters whose personalities and histories have already been set is a good break from the more professional, daily writing such as books, college papers, reports, etc. Fan fiction allows a person the freedom to write without worrying about deadlines or requirements.
A second common reason discovered in the survey was the use of fan fiction as a way to release stress after a long day at work or school. Taking one’s frustrations out on a fictional character in the form of fan fiction can be a wonderful form of therapy and can greatly improve a person’s frame of mind. One fan’s response confirmed this: “The main benefit, at least for me, is that its [sic] a good stress reliever. After spending 5 to 8 hours at college in stuffy class rooms I love to come home and just lose myself in fan fiction” (Beckner). The act of sitting down and writing fan fiction can be very relaxing. Indeed, even just sitting back and reading someone else’s stories can be a great way to unwind.
A third reason seems to be most common among writers, however. These fans write fan fiction to stretch their imaginations. In their stories fans can create new and exciting adventures for the characters they love that would most likely never occur in the actual series. Sometimes, it is the imagination that starts these fan stories; ideas for character development, plots, and/or alternative endings to episodes sometimes just won’t leave a person alone. In fact, it sometimes takes something as simple as the line of a song to inspire well-thought out, well-written tales that are often equal to, and sometimes better than, the quality of an episode.
Understandably, peer feedback is important to fan fiction writers. Many times feedback is the only help a writer receives in regards to grammar, story effect, or character interpretation. Plus, to most writers, receiving a LoC—letter of comment—makes their day. They love to hear if their stories have been read, and whether or not they were enjoyed. It is customary in the world of fan fiction for the readers to encourage the writers with LoCs. Through this communication exchange between virtual strangers, commonalities are often uncovered such as tastes in music, hobbies, or other things, and friendships are often formed. In regards to this sense of community, one fan stated: “I was so relieved when I found there were others out there who were just as obsessed [about a show] as I was” (Straatmeyer). These new friendships make up just one more invaluable reason why fan fiction is so important to an ever-expanding audience. There are certainly other reasons why fans write fan fiction; these are only a few. The act of writing fan fiction holds unique significance for each individual. As stated by Jay Coakley, a professor of sociology, “It’s so easy to express yourself on the Internet … under terms of relative anonymity” (Simon). This is exactly what fan fiction is about: expressing one’s self and one’s admiration for a show in the friendly environment of that show’s fandom.
Despite the personal rewards of fan fiction, there is a certain amount of debate surrounding this type of fiction, namely whether or not it should be defined as copyright infringement. Upon considering it briefly, one might assume easily enough that fan fiction is indeed infringement. After all, fans do use copyrighted characters in their stories without the owners’ permission. Nevertheless, the issue is more complicated than that. According to professor of law Pamela Samuelson, “One way to conceive of copyright law is as a set of default rules to regulate the buying and selling of copyrighted works” (Samuelson 4). It can then be inferred that copyright infringement is the actual illegal buying and selling of those copyrighted works. When one considers this definition, two sides of the current issue are clear. On one hand, fan fiction housed on the Internet does not fit into this definition, because it is neither bought nor sold. Fanzines, on the other hand, are another story. It costs money to copy, bind, and ship fanzines, and while most fanzine publishers ask for only enough to cover those costs—and some even take losses—, money does exchange hands, and thus fanzine fan fiction does fit into the previously mentioned definition of infringement. So where, then, does fan fiction as a whole fit into the complexities of the law?
Most fans realize and acknowledge that what they are doing, writing fan fiction, is illegal. Even the newest of fan fiction authors are aware of this fact. Accordingly, whether the fan fiction is found on the Internet or in fanzines, there is one important, albeit unofficial, rule of fandom: the placement of disclaimers on each and every piece of fan fiction written. In these brief disclaimers, fans concede that the characters they use—excluding original characters created by individual fans—do not belong to them. Some disclaimers are short to the effect of “They don’t belong to me” or “Not mine, never were, never will be.” While these brief disclaimers are certainly better than if there were none, perhaps it would be more respectful to the copyright holders if other, longer disclaimers were used instead as many fans do. An adequate disclaimer should state exactly which characters are being used without permission, to whom they actually belong, and that no copyright infringement is intended. The intention of fan fiction writers is not to steal a television show’s characters, rather it is just to “borrow” them for the purposes of writing stories about them. Usually, the reason why short, non-descriptive disclaimers are used is out of humor, or perhaps due to the repetitiveness of the task. In either case, long or short, the writers do not take credit for the creation of the show or its characters, and that is what is most important.
Fanzines generate their own amount of debate to the issue of whether fan fiction as a whole should be illegal. Regardless of the fact that most, if not all, fanzine publishers make no profit, the exchange of money is still involved in the distribution of fanzines. In the technical sense of the word, then, fanzines are illegal. There is no way to deny that fact, according to Linda Hutcheson, a fanzine publisher as well as a professional publisher. Hutcheson believes that fan fiction is copyright infringement whether or not the exchange of money has taken place (Hutcheson). Her reasoning is simple; fan authors are using someone else’s characters and ideas without permission.
However, there is a very sensible reason why fan fiction should not be considered copyright infringement. This reason is known as fair use. This term refers to an exception to copyright law under which certain, qualifying works can be classified. Defined, fair use is “the use of an excerpt of a copyrighted work ‘as is’ and/or copyrighted image for purposes of parody, news reporting, research and education about such copyrighted work without the permission of the author” (Delgado-Martinez Valette). There are several rules that must be applied before something can be considered fair use, and fan fiction definitely falls within these specific criteria. According to an article from the Loyola of Los Angeles Entertainment Law Journal, there are four factors in determining fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. (Tushnet)
Because fan fiction meets these criteria, it can be argued that these fan stories should not be classified as copyright infringement. The first and most important factor is that fan fiction has no commercial purposes. While fan fiction is not actually educational nor has any educational purpose in the normal sense of the word, fan fiction is not produced for the public nor sold in any type of marketable environment. No gain other than that of a personal nature is made off of fan stories. In fact, many fans are of the opinion that the stories they write do not carry the same degree of infringement as if actual profits were made from them. The very fact that fan authors place disclaimers on their stories evokes “a general social consensus that noncommercial use is fair use” (Tushnet). The general opinion, derived from a number of fan disclaimers, is that as long as no profit is made off of fan fiction, then what fans are doing is not so terrible. Fan fiction, even fanzines, cannot be classified as a commercial entity and shouldn’t be considered copyright infringement.
Another determining factor of the fair use exception is the “nature of the copyrighted work” (Tushnet). According to Tushnet, this refers to whether a work is fact or fiction, as well as if it is published or unpublished. Cases of fiction are more likely to be prosecuted than fact based works. This reasoning is probably why the questions over fan fiction’s status as copyright infringement are so confusing, to both fans and the television companies as well.
A third important factor in determining whether or not a work is fair use is the “amount and substantiality of the use” (Tushnet). The extent to which a character is used helps to define its status as copyright infringement. It is, in a sense, the actors or actresses who bring a character to life. Fan authors do not “take” for the purposes of their stories these actual flesh and blood characters portrayed on the screen; they merely use words to put down their interpretations of said characters.
Finally, the fourth fair use factor is the effect the fan fiction has on the original copyrighted work’s market value (Tushnet). Fan fiction, however, does not hinder the original television show’s potential market value. In fact, the copyright owners actually benefit from fan fiction in many ways, namely because it “keeps its consumers excited about the official shows, receptive to other merchandise, and loyal to their beloved characters” (Tushnet). Fan fiction is essentially free advertisement for a television show, and it would be foolish to not accept this gift from fans.
Another copyright term is “transformative use” (Tushnet). To qualify as transformative use, a work must have developed and added to an already existing work’s ideas. That is exactly what fan fiction is. Fan authors do not simply copy the original work, i.e. the television show that inspires their stories. Instead, they expand on the already existing premise of a given show. In their stories, fan authors take time to explore established characters. They write these characters into new situations and new problems that are all the product of the authors’ imaginations. Though based on a television show’s existing framework, the stories themselves are the original efforts of the fans.
Even though it is possible for a given show’s characters to be copyrighted, the founding ideas behind the show cannot be (Terry). The characters created are tangible entities. They have names, personalities, and physical characteristics, and therefore have an established existence that can be legally copied. The ideas behind the show, however, are intangible, meaning they are hard to ground with solid characteristics. One cannot copyright ideas.
Another reason why the use of these conceived ideas should be freely allowed is because of the fact that they were conceived for the sole purpose of being viewed on television. An audience cannot be told how to interpret what they see on the television screen. Once a show has aired, these conceptual ideas become fair game. Each individual thinks about what he or she sees and derives personal meaning that is in some way important to him or her (Jenkins 23). Interpretation is an entirely subjective notion. It is up to each and every individual to obtain their own meaning from something. While watching a particular scene of a certain episode of a specific series, two people might have entirely dissimilar viewpoints, each believing that the purpose behind the scene was something else. Meanwhile, the intentions of the show’s writers may have been something altogether different.
Because such ideas are publicly aired for all to see and ponder, the audience cannot be blamed for doing just what the purpose of the show intended: thinking about the show and considering aspects of the premise and characters that remain unexplored. It is not the fault of the fans that this pondering leads to their imaginations creating new situations and problems for the characters to solve. These new ideas—based off of the notions behind the actual show—deserve a medium of expression. The original themes were expressed in the television show; fan fiction is the creative outlet for those whose imaginations need more than thirty to sixty minutes a week of their show.
There are, of course, some ways that fan fiction could be construed as bad publicity. Take, for example, a piece of fan fiction from any fandom. One actor might read that piece of fan fiction and find the use of his character extremely distasteful. This actor might then lodge a complaint or initiate legal action against the author of that story, or—in an extreme case—fan fiction as a whole. On the other hand, replace the character in that piece of fan fiction with another character portrayed by a different actor. This second actor might not be as bothered by the representation. He may simply dismiss the story with a shrug. Once again, it all depends on individual tastes and interpretation. Another way that fan fiction could be considered in an unfavorable light by a television network is if the stories turn away potential viewers. For instance, a person browsing the Internet stumbles upon a piece of fan fiction for a show with which she is unfamiliar. If, however, if this person decides that the show and its characters are written in an unflattering and unappealing way, she may find the series not to her liking, and not give it a chance. In this example, a single piece of fan fiction may have cost the television show potential support from a new viewer.
Despite the few inevitable negative interpretations of fan fiction, it is clear that fan fiction’s benefits outweigh its potential downsides. Every television network desires high ratings. Whether or not a program succeeds and continues for many seasons or fails and is canceled is directly related to its ratings. To attain preferred ratings the networks need a large enough audience. They need people to watch their shows. The people responsible for bringing high ratings to a show are the Nielson families. Nielson boxes are given to a select number of families in the United States. These boxes record what television shows are watched in each selected household. The total combination of Nielson boxes represents, in a way, what America watches on television. Therefore, the more Nielson families who turn their channels to a specific show, the higher the ratings that show will have. By attracting people unfamiliar with a certain program, fan fiction can actually help increase a show’s ratings. In fact, many people become fans of a series by first reading the fan fiction and then actually watching it on television.
Aside from drawing in new viewers, fan fiction has other advantageous qualities. One of these benefits is the generation of excitement for a show. Fan fiction keeps a show “alive” by keeping fans interested and active during a hiatus or a summer of reruns (Ching). By doing so, fan fiction ensures that there will be an audience ready and waiting for the show’s eventual return. Another way that fan fiction is valuable to the television industry is through the revenue it generates. In short, fans that read or write fan fiction out of love for a show are probably more likely to go out and buy merchandise from that program than would a person who only watches the show once in a while. This constant source of capital is certainly reason enough why many television companies avoid taking legal action against fan fiction writers.
Apart from previously mentioned benefits, the most likely explanation for why television companies tolerate fan fiction is because to try to stop its circulation would, in the long run, simply cause too much trouble and cost too much money. The television industry greatly dislikes unfavorable publicity and tries at all costs to avoid it. However, once something bad is said about a show or a company, word often spreads quickly. If a company were to take legal action against fan fiction authors, the news would no doubt reach the ears of the critics, and it is the opinions of critics that basically determine the fate of a series. If the critics frown upon a demonstration of force against fans, their opinions on the matter will likely find their way into some media forum such as popular magazines.
While it is the opinions of critics that determine a show’s failure, it is the opinions of fans that determine a show’s success. However, if a television company were to threaten legal trouble and order fan fiction websites taken down or fanzine circulation stopped, it would greatly change the way fans feel about that show or the company. These fans might decide they do not want to watch a show that doesn’t care about its audience. It is quite possible that some—or many—fans would lose heart and abandon a program they had at one time loved. All of the above mentioned possibilities would have severe impacts on a show’s chances of success. It would not be in their best interest for a company to create a legal fuss over the existence of fan fiction. The outcome would not be beneficial to either the company or the fans.
In conclusion, the issue surrounding fan fiction is not cut and dry. Fan fiction could be considered copyright infringement for the pure and simple reason that fans use copyrighted characters without the permission of the authors. It should not, however, be classified as infringement. Fan fiction has been in existence since the 1960s with Star Trek, and its presence has grown dramatically in the past thirty years. Fan fiction has firmly entrenched itself in today’s popular culture and shows no signs of disappearing anytime soon. However, it shouldn’t have to disappear.
There is strong evidence that supports why fan fiction should not be classified as copyright infringement. First, fan fiction is a fun, creative form of expression that allows fans to stretch their imaginations. There are many reasons why fans write fan fiction, such as the love of a particular show, the release of stress and tension, and the sense of community that surrounds fan fiction. Fan fiction does not only benefit the fans, however. It benefits the television industry as well. By bringing in new viewers, keeping fans interested and active in a series, and generating revenue from the sale of merchandise, fan fiction has proven to be very advantageous. There are ways that fan fiction could be misinterpreted, but what constitutes “bad” fan fiction is entirely subjective. Because of the positive reasons and despite the negative, and because they are afraid of what may happen if they don’t, many television companies purposefully turn a blind eye towards fan fiction. Another reason why fan fiction shouldn’t be infringement is the fact that it meets the four determining criteria of fair use, an exception to copyright law. Yet another aspect of copyright law is transformative use; fan fiction falls under this category for the reason that fan stories add original material to an already existing copyrighted work: the television show. Finally, the intangible ideas behind a television show cannot be copyrighted. Interpretation of what people see on television is entirely subjective. Fan fiction is simply the culmination of original ideas based on themes already founded in a television show. All of the above evidence points to the conclusion that fan fiction shouldn’t be considered illegal. Its current “illegal” status simply causes too much trouble over something that is in fact valuable to both sides, the fans and the television companies.
Works Cited
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Jenkins, Henry. Textual Poachers: Television Fans and Participatory Culture New York, London: Routledge, Chapman and Hall, Inc., 1992.
Porter, Lynette. “Re: Senfic: Calling all fans/fic writers.” E-mail Response to Interview Questions. 11 April 2000.
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Terry, D.R. “Re: [FFSupport] Survey.” E-mail Response to Interview Questions. 10 April 2000.
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