Construction Literary Magazine

Fall 2020

Copyright Infringement Legislation and the Future of Fan Fiction

Copyright Infringement Legislation and the Future of Fan Fiction

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In January, the Internet exploded with apocalyptic prophecy. The Stop Online Piracy Act and Protect IP Act were heralded as looming threats to online socialization, and big companies like Wikipedia and Google were warning every user of the impending disaster. Amidst the flurry of commenters decrying the impending death of Facebook and Twitter, a few Internet users timidly stepped forward with their own concern: how would Internet copyright infringement legislation affect fan fiction?

Popularized in the mid-1960s by ambitious Star Trek viewers, fan fiction is an umbrella term used to describe stories and novels that use the characters, basic plotline, and settings of a popular work but (with some exceptions that I’ll get to later) tweak and transform it enough to constitute genuine pieces. Think of fan fiction as a writer’s fantasy baseball league or amateur beauty pageant. And in turn, consider its writers to be as varied as those who participate in fantasy baseball or amateur beauty pageants—some spend years on 500-page Lord of the Rings novels, some produce meek three-page Portlandia scripts.

Fan fiction has come far from the minute zine-bound community it was half a century ago; there are now hundreds of thousands of fan fiction stories written about every conceivable series., one of the largest fan fiction hubs online, boasts over two million users. Writers create fan fiction for community and for socialization but, most of all, for themselves. When the TV seasons end and the last page of the latest book is read, fan fiction writers make up their own sequels. In the words of Time’s Lev Grossman, fan fiction writers are “fans, but they’re not silent, couch-bound consumers of media. The culture talks to them, and they talk back to the culture in its own language.”

At 13, I fit neatly into fan fiction’s classic creator and consumer mold—an adolescent female with pent up artistic energy. Writing original short stories was fun but unrewarding and stressful. “Real writing” was supposed to be polished and eventually published. It required research. It required editors. It required time. Fan fiction, on the other hand, was far less intimidating. Easy, fun, and filled with a like-minded, supportive audience, fan fiction is many a person’s introduction to the world of creative writing. It’s easier for a young writer to find her voice when the pressure is off.

The genre is undoubtedly creative, but it’s a borrowed kind of creativity. A writer might weave a narrative that places Batman, Iron Man, and Wolverine in George R.R. Martin’s Winterfell, but as inventive as that premise might be, the rights still remain with DC Comics, Marvel, and Martin respectively. Fan fiction is arguably copyright infringement—the legal ground on which it stands is shaky at best, and transformative use doesn’t negate a creator’s trademark rights. But if fan fiction is copyright infringement, it’s largely the harmless, beneficial sort. And if authors decide they would rather amateur authors not borrow their characters and settings, hosting websites often oblige and take down the relevant work.

The problem lies in the extremes. Most fan fiction poses no threat to professional authors, but some takes advantage of the art’s borrowing and adapting. Uninventive authors have been creating stories nearly identical to ones already in existence, and some even borrow pieces of dialogue or scraps of descriptive language. In a relatively new phenomenon, some writers copy entire passages of novels and scripts with only minor changes. This latter trend—called “The Characters Read” (or sometimes, “The Cast Reads”)—is what should be of chief concern to writers worried about fan fiction’s future in the face of pending efforts to curb piracy. “The Characters Read” phenomenon should raise alarms for any person who felt concerned for the fate of Internet artists during January’s SOPA/PIPA battle—especially since easy comparisons can be made between fan fiction’s repeat plagiarists and the music industry’s worst pirates.

What distinguishes “The Characters Read” from the usual fan fiction is not just lack of transformative use, but also the quantity and type of material being borrowed. The typical story in the genre begins thus: pre-made and beloved characters are prodded into a room together and one character is appointed to read the source book or script aloud. The other characters (who for some reason have only limited knowledge of the text’s events) react with angst and aplomb to every literary revelation. It’s a genre built for meta tastes, similar to the framed narratives used in the cheap direct-to-DVD holiday specials so beloved by makers of children’s movies. The fiction’s audience, naturally, are those who read the books and are looking for a similar product to fill the void. They want more of the same—so much so that spotting sizable differences between the two works requires zealous squinting on the part of the reader. In essence, it is not a big stretch to say that “The Characters Read” is to literature what The Pirate Bay is to music—a way of disseminating copyrighted material wholesale, without added value either for readers or for the original creator.

If it were granted that lawmakers would distinguish between those who steal material and those use minimal borrowing as a springboard (a tactic protected under fair use), this discussion would be moot. But during the heat of the SOPA pushback, borrowing became a major talking point. Many argued that as the law was written, artists who got their start by recording covers of popular songs at home (such as Justin Bieber) would be in jail. There was also nothing to distinguish artists who borrow small snippets of songs from artists who borrow large sections and recognizable themes, such as the mashup artist Girl Talk. And as always, discussions boiled down to money—if Internet users were able to get music for cheap or for free, the argument went, then they would eventually feel music was worth nothing at all, essentially killing the industry.

If fan fiction was a universally enjoyed medium, it would have been under the same fire, with the same comparisons. Under policies like SOPA/PIPA, there’s no difference between writers who metaphorically sing songs in front of a web cam and those who pilfer large chunks of material. And although these bills were knocked prone earlier this year, copyright violation continues to be a global concern. The Anti-Counterfeiting Trade Agreement, SOPA’s International doppelganger, is still being debated by the European Parliament, and many predict that if the bill passes it will pose just as large of a threat to Internet autonomy.

The comparisons are not just legal. Fan fiction faces not only the same inapt comparisons from outsiders, but also lacks an internal social policy that frowns upon such works. While few would argue “The Characters Read” does not constitute plagiarism, fan fiction authors are often more focused on popularity than on prudence. And the precedent for careless plagiarism had already been set by trends common in my generation. In the early 2000s, song lyrics and poetry ran rampant through the homespun stories, and an offhand attribution was used as a copyright infringement “get out of jail free” card.

As fan fiction continues to become more visible through media coverage and popular fan-fiction-turned-original-fiction works like Fifty Shades of Grey, what protection the medium gained through invisibility will slowly chip away. Authors such as J.K. Rowling have threatened lawsuits against writers who used unoriginal characters in ways deemed inappropriate, such as works that include scenes taken explicitly from their books. Recently, J.D. Salinger filed a lawsuit against author Fredrik Colting for writing a novel that contained three of his most recognizable “Catcher in the Rye” characters in a setting wholly different from the original plot. Several authors and publishers have already expressed their displeasure with fan fiction and implied that lawsuits would be pursued against offenders. With the UN’s International Telecommunications Union calling for central management of the Internet and U.S. senators still squabbling over how best to balance Internet autonomy and copyright protection, it is not a good time to be indistinguishable from Internet thieves, nor a good idea to harbor them under your virtual roof.

Popularity is a tantalizing call, but also a siren’s song. Fan fiction authors will either realize that the art’s strength lies in its ability to aid budding writers by encouraging creative and original derivative works, or it will devolve into a hack community filled with lazy plagiarists. Either way, the genre cannot survive intact without first placing subgenres like “The Characters Read” under heavy scrutiny. Lack of attribution and nonchalant stealing was the unwatched and unwise trend of my generation. But that is no longer an option, much less an ethical one. When we fail to respect the line between transformation and transcription, creators can rightfully question whether we should have the privilege to play in their sandbox. And if writers allow “The Characters Read” to become the most notorious component of the fan fiction community, then we risk sabotaging our position before the battle even begins.