Embracing Fan Fiction in Publishing

Fan fiction is a massively popular outlet for fans to engage and respond to the source text through derivative writing. Writers create their own stories using the universe and characters of the original creator’s work. The nature of fan fiction presents the continuous debate over whether fan fiction infringes on copyright, and if there can be no doubt to whether it should be protected under fair use. While some authors and publishers embrace fan fiction, some do not. There exists a wide range of acceptability despite current copyright laws. Traditionally, publishers have not embraced fan fiction titles. However, this has begun to slowly change due to fan fiction entering the mainstream. Therefore, Fan fiction can be useful to publishers because it retains fan engagement beyond the lifetime of the original work­­­­­.

Publishers and authors who take strict control over their works limit the potential for a strong fanbase to grow. In Aaron Schwabach’s book Fan fiction and copyright: outsider works and intellectual property protection, he presents three interests of the author that conflicts with fan fiction. First, that the owner may object to how their work is used or depicted. Second, that the body of fan fiction surrounding their work may expose them of copyright infringement in their future work. Thirdly, because it borrows too extensively from their original copyrighted work.[1] However, Schwabach argues that many of these objections authors may have over fan fiction is short-sighted. The suppression of fan fiction and fandom in a larger picture takes away free advertising and marketing that is more valuable than any publisher could ever buy.

Strict control over fan fiction is counter intuitive. Similarly, Viktor Mayer-Schonberger and Lena Wong argue in Fan or Foe: Fan Fiction, Authorship and the Fight for Control that suing fan fiction authors holds the “risk of alienating some of their most devoted fans and wiping out an entire genre of writing that often helps to promote their work.”[2] By going against the fan base that is invigorated by fan fiction, publishers and authors suing their customers is bad business.

Ultimately, it is not in the best interests of the authors or publishers to sue authors of fan fiction because fan fiction could pass existing fair use exception to copyright infringement that balances the rights of both owners and users. Fair dealing laws in Canada generally does not encompass fan fiction or derivative works in general into its exceptions, but in the U.S. fan fiction can be judged under the Four Factor fair use test.

The Four Factor test considers: the purpose and character of the use such as whether it adds value or new insights to the original[3], the nature of the copyrighted work[4], the amount and substantiality of the copyrighted portion used[5], and the effect of the use upon the potential market.[6] The majority of fan fiction bears no economic threat to the copyright holder, and rarely compete.[7] Under the Four Factor test, the fair use defense may not completely protect fan fiction against infringement claims. It largely depends on a case-by-case basis. Therefore, it is up to the publishers and authors to be more lenient on enforcing their copyright of the work. Pamela Kalinowski argues in her article, The Fairest of them All: The Creative Interests of Female Fan Fiction Writers and the Fair Use Doctrine, that “the fair use factors should better consider noncommercial motivations” and that “economic incentives and concerns should be part of the fair use balance, but […] should not overwhelm it.”[8] The Four Factor test exists to protects the user. While fan fiction is a derivative work, it should not be dismissed that there is unique, original interpretation involved. Instead of immediately favouring the copyright holder, it would not be in the best interest of the court to go after the little guy in the legal system because it takes away from the integrity of the court. It could be seen along the same terms for the publisher or author, where they go against their own fans by suing them, or restricting the potential for a loyal fanbase to grow.

Publishers can learn a lesson from video game companies’ policies on fair use to attract customers and potential readers. A majority of video game companies encourage live-streamers and professional gamers to broadcast their games to massive audiences on Youtube and Twitch because they recognize that it as free advertisement amongst the gaming community. However, there do exists some video game company exceptions. One of the most notable being Nintendo. Many gamer and online personalities regard Nintendo’s strict policies for fair use as behind the times while the majority of other video game companies encourage it. As a result, Nintendo prohibits gamers from celebrating them as a company that would result positive word-of-mouth. Similarly, fan fiction can be regarded as the text medium for word-of-mouth advertising just as video game livestreams are. If a publisher or author targets fan fiction writers, it can also turn against them because they are suppressing voices who may want to share their enthusiasm. Being the outlier publisher or author who does not support fan fiction is regarded as being out of touch with the fanbase just as Nintendo is.

An important factor for publishers to recognize is that a visible, and active community surrounding the original story is an incentive to become interested in the source material. Henry Jenkins’s article, Textual Poachers, argues that “fans possess not simply borrowed remnants snatched from mass culture, but their own culture built from the semiotic raw materials the media provides.”[9]. The fandom surrounding the original work provides a sense of belonging to a community. Additionally, it presents the opportunity to become more involved in the original source, and deepens the connection to the original work. So when publishers discourage these communities from forming by going after fan fiction they take away the potential of those unaware of the work to recognize from the fan culture surrounding the work.

If publishers and authors discourage fan activity like fan fiction, new opportunities in connecting with the audience and community would not reach the level of growth or cultural consciousness that is seen in video game communities. Just as large, organized fandoms that create a body of fan fiction such as Harry Potter and Star Trek are in a dialogue between each other. These organized fandoms help push the original source out of its niche and into the mainstream because fan fiction helps to create buzz. If a reader likes a certain idea presented in an original work, they can look for a fan fiction that may expand on that idea which the original did not give sufficient time to. Fan fiction is shared through a variety of social media and website platforms including: Archive of Our Own, Livejournal, Fanfiction.net, Tumblr, and Twitter. The source is put out there for an audience to read, interpret, and provide their own meaning to. Fan fiction is part of the fan culture itself, and limiting this experience is only makes it a unilateral experience.

There is also the issue that the fans do not have the resources to defend themselves in court against copyright holders if sued for infringement. The majority are more likely to surrender than fight their case. As it is rare for fan fiction authors receive any monetary value in their work, it would also be a waste of time and resources for copyright holders. It would only alienate their readership and result in negative reputational consequences.

Many fan fiction writers are happy with posting their fan fiction online for free, for fans and by fans. While there are a few cases where writers have gotten published from their fan fiction, it is not prevalent enough to present a large threat to the publisher or author. Usually the monetary gain off fan fiction works is low and not seen as a primary source of income.[10] Fan fiction writers usually have no intention of selling their work, and requires zero or little monetary investment to give back to the fan base. Fan fiction could also be viewed as a training ground to becoming professional writers. While this may be true of some cases as well, the fan fiction writers themselves do not regard it as such, but rather as an outlet for their creative expression.[11] Publishers can recruit notable fan fiction writers from online, and there are cases where those works have become successful. For example, Captive Prince by C.S. Pacat, published by Berkeley an imprint of Penguin Random House that was originally posted on Livejournal but had gained such popularity that she became published. While it is an original work, Pacat had learned a lot from her years of previously being a fan fiction writer. Fan fiction is a powerful way for writers to practice their talents with established characters and universes.

Publishers and authors should take advantage of fan fiction as a participatory work to engage with the original work, to keep the source away from being so authoritative and a one-sided conversation. Above all, fan fiction consumers recognize the original work as the canon and that fan fiction is an interpretation. These interpretations can be just as unique as the original. Publishers and authors should view fan fiction as an opportunity, not a threat. It does not necessarily mean to start publishing fan fiction but at the very least it can be studied to see what is working with readers and what is not.

Bibliography

Burt, Stephen. “The Promise and Potential of Fan Fiction.” The New Yorker. August 23, 2017. Accessed October 30, 2017. https://www.newyorker.com/books/page-turner/the-promise-and-potential-of-fan-fiction.

Butke, Kristina Elyse. “Yes, fanworks are illegal: harsh truths about copyright & Fair Use.” In your write mind workshop. Accessed October 22, 2017. http://inyourwritemind.setonhill.edu/yes-fanworks-are-illegal-harsh-truths-about-copyright-fair-use/

Christian, Kaelyn. 2013. “Fan Fiction and the Fair use Doctrine.” The Serials Librarian 65 (3-4): 277-285. doi:10.1080/0361526X.2013.838726. http://resolver.scholarsportal.info/resolve/0361526x/v65i3-4/277_ffatfud.

Contrera, Jessica. “From ‘Fifty Shades’ to ‘After’: Why publishers want fan fiction to go mainstream.” The Washington Post. October 24, 2014. Accessed October 30, 2017. https://www.washingtonpost.com/lifestyle/style/from-fifty-shades-to-after-why-publishers-want-fan-fiction-to-go-mainstream/2014/10/24/825d6a94-5a04-11e4-b812-38518ae74c67_story.html.

Edidin, Rachel. “Publishers Are Warming to Fan Fiction, But Can It Go Mainstream?” Wired. June 03, 2017. Accessed October 30, 2017. https://www.wired.com/2014/02/fanfic-and-publishers/.

Jenkins, Henry. “Textual Poachers.” In The Fan Fiction Studies Reader, edited by Karen Hellekson and Kristina Busse, 19-26. Iowa City: University of Iowa Press, 2014.

Jones, Oliver. “Why Fan Fiction Is The Future of Publishing.” The Daily Beast. February 09, 2015. Accessed October 30, 2017. https://www.thedailybeast.com/why-fan-fiction-is-the-future-of-publishing.

Kalinowski, Pamela. “The Fairest of Them All: The Creative Interests of Female Fan Fiction Writers and the Fair Use Doctrine.” 20.3 Wm. & Mary J. Women & L. 655, 684 (2014)

Ore, Jonathan. “Does gaming on YouTube push too many legal buttons?” CBCnews. October 07, 2017. Accessed October 30, 2017. http://www.cbc.ca/news/entertainment/youtube-gaming-pewdiepie-fair-use-1.4309312.

Mayer-Schonberger, Viktor; Wong, Lena. “Fan or Foe: Fan Fiction, Authorship, and the Fight for Control.” 54.1 IDEA 1, 22 (2013)

Schwabach, Aaron. Fan Fiction and Copyright : Outsider Works and Intellectual Property Protection. Burlington: Ashgate,. 2011.

“Fan Fiction Becomes A Boon for Licensors and Publishers.” PublishersWeekly.com. Accessed October 30, 2017. https://www.publishersweekly.com/pw/by-topic/industry-news/licensing/article/66650-embracing-the-fans.html.

 

 

 

[1] Aaron Schwabach, Fan Fiction and Copyright : Outsider Works and Intellectual Property Protection., (Burlington: Ashgate, 2011), 93-94.

[2] Viktor Mayer-Schonberger and Lena Wong, “Fan or Foe: Fan Fiction, Authorship, and the Fight for Control.” 54.1 IDEA 1, 22 (2013), 11

[3] Pamela Kalinowski,”The Fairest of Them All: The Creative Interests of Female Fan Fiction Writers and the Fair Use Doctrine.” 20.3 Wm. & Mary J. Women & L. 655, 684 (2014), 675.

[4] Ibid, 677.

[5]  Ibid.

[6] Ibid, 678.

[7] Ibid. 679.

[8] Ibid, 682.

[9] Henry Jenkins, “Textual Poachers,” in The Fan Fiction Studies Reader, ed. by Karen Hellekson and Kristina Busse, 19-26. (Iowa City: University of Iowa Press, 2014), 42.

[10] Ibid.

[11] Ibid, 42.

One Response to Embracing Fan Fiction in Publishing

  1. aleenadeandra says:

    I would say that I really enjoy reading your essay, Shirley. Fanfiction possesses a greater deal than just a fanbase or a feedback. Like you said, it is both marketing and appreciation. Fictional worlds are riddled with plot holes and unexposed surfaces. It’s human nature to have the urge to cross the boundaries, to reach beyond what’s been written. “To say that a story stops after we close a book is absurd,” says Maltese, a fan fiction writer. “To say that we can think certain things about a story or what might happen next in a story or what might have happened if someone had turned left instead of right but that we can’t write them down is absurd,” she adds.

    Unfortunately, the people who create the works that fan fiction borrows from are sharply divided on it. Some authors give their blessing, but others consider it as a violation of their copyrights, their works, or even their ‘children’. They often feel as if their characters had been kidnapped and abused by strangers. George R.R. Martin, author of A Game of Thrones, writes on his website, “My characters are my children … I don’t want people making off with them, thank you. Even people who say they love my children.” Ursula K. Le Guin, a fiction author, also writes, “To me, it’s not sharing but an invasion, literally — strangers coming in and taking over the country I live in, my heartland.” They are not wrong, but those who write the fan fiction are also not at fault.

    You can see both sides of the issue. Do characters belong to the person who created them aka the author? Or do they belong to the fans who spend their spare time extending those characters’ lives for free? To make Harry Potter the boy who lived FOREVER? Modifying, cutting, mashing up things have become a way to express a culture, and fan fiction is standing right on the edge of that area. Is it? Or is it not? It challenges just about everything we thought we knew about art and creativity.

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