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Fan Fiction, Plagiarism, and Copyright

Introduction:

CIvPlagiarism

The issues of plagiarism and copyright overlap in fan fiction (and fiction in general) causing a great deal of confusion and misunderstanding.  Wholesale copying without attribution (giving credit to the source) is plagiarism but not always copyright infringement.  Copyright infringement can happen even when credit is being given.  This piece attempts to talk about the two in a broad sense. None of the following should be considered legal advice.  If you have a specific legal question, consult with an intellectual property attorney.  This blog and the authors of the blog will not be responsible for any harm or damages suffered by one who takes action because of the contents of this post.

Plagiarism

Plagiarism is an ethical issue. Ethics are defined by the community. For instance, lawyers are bound by a code of ethics and while there is a “Model Code”, each state bar association sets out the rules of appropriate behavior for lawyers who are members in that state. Those rules can be completely different. I live in Iowa and we have very restrictive advertising rules. Nebraska and Illinois advertising rules are much more lenient. There has been a lot of campaigning by the attorneys in Iowa who live on the borders between the states to loosen the advertising rules.

Thus, what is considered ethical in the community of lawyers in Nebraska and Illinois is different than what is considered ethical in the community of lawyers in Iowa.

What the community of readers at fanfiction.net might believe is ethical behavior might be different than what binds students at Harvard University. Because ethics can depend upon the community, the definition of plagiarism can vary from person to person.

Most people can agree that verbatim copying is plagiarism but at universities, there is other examples of plagiarism. The Modern Language Association has adopted this definition:

 “Using another person’s ideas or expressions in your writing without acknowledging the source constitutes plagiarism…. [T]o plagiarize is to give the impression that you wrote or thought something that you in fact borrowed from someone, and to do so is a violation of professional ethics…. Forms of plagiarism include the failure to give appropriate acknowledgment when repeating another’s wording or particularly apt phrase, paraphrasing another’s argument, and presenting another’s line of thinking” (6.1; see also Gibaldi, MLA Handbook, ch. 2).

Thus plagiarism is not dependent upon exact or verbatim copying nor is it dependent on the size of the source reference used.  Plagiarism depends, in large part, on what amount of borrowing one does without attribution.  Fan fiction is almost always referencing the source work of their material and thus is less prone to be plagiarizing the original work.  Fan fics that copy other works including other fan works or other published works and passing it off as one’s own is also plagiarism.  Cassandra Clare is accused to have passed off someone else’s fan fiction as her own work, for example.

Copyright

Copyright isn’t well understood by fans or creators.  Essentially copyright is a bundle of rights that accompanies the fixed expression of an idea.  It’s the fixed expression that is protected, not the idea.  When an author writes a book or a television show is created and produced, there are a number of rights that develop known as intellectual property rights. These are not true property rights, like ownership of land (known as real property) or your car (known as personal property) but certain rights to distribution, reproduction, and derivative works belong exclusively to the original copyright holder.

In fan fiction and youtube, you often see disclaimers like “no copyright infringement intended”, but copyright infringement is not based on intent. The derivative work is either infringing or not, regardless of the intent of the creator of the derivative work

According to the Copyright Act, derivative works are described as follows:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

Copyright intersects with plagiarism when the original creator works are used regardless of attribution. In other words, in the Harry Potter case the lower court determined that the non fiction encyclopedia included too much of the original Harry Potter work.

Examples differentiating the two

Not every instance of plagiarism is infringement and vice versa. If I published Pride & Prejudice under my own name, I would be committing plagiarism, but because the work is in the “public domain”, I would not be infringing on copyright. Works in the public domain (mostly works published prior to 1923) are not entitled to copyright protection any longer.

If I published a work under my own name that contained a paragraph from 10,000 different novels and didn’t give any attribution, I would be committing plagiarism but probably not copyright infringement.  In the case of Craft v. Kobler, 667 F. Supp 120, the derivative work was found to be infringement when the passages were taken from 15 books written by the same copyright holder. In New Era Publications Int’l v. Carol Publishing Group, 904 F.2d 152 (2nd Cir. 1990) a biography which used passages from 48 different works but only a small percentage of the works were used was found to be permissible.

If I published Nora Roberts “The Next Always” under her name but without her permission, I wouldn’t be committing plagiarism, but I would be infringing on her copyright.

What I have always found fascinating about fan fiction and copyright is the conflict between fans wanting the fan fiction to hew close to the original source and the issue of copyright infringement.

More on Derivative/Transformative Works

In most cases, the closer the derivative work is to the original, the more likely it is copyright infringement. Many fan fiction and youtube creations contain a disclaimer that infringement is not intended. However, copyright infringement does not depend upon intent. George Harrison was sued for his 1969 song “My Sweet Lord.” In 1971, Bright Tunes filed a copyright infringement lawsuit alleging that it had been a copy of “He’s So Fine.” During testimony in the trial, Harrison said that he wasn’t thinking of “He’s So Fine” when he wrote the song. During the trial, the songs were compared, word for word, note for note, and the jury found Harrison guilty of infringement and was ordered for over $1.6 million in damages.

In the 1994 case of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), 2 Live Crew was sued for a parody of the Roy Orbison sung song “Pretty Woman.” The Acuff Rose case turns solely on a finding that 2 Live Crew’s song was a parody but it’s instructive because it sets out some of the elements in measuring fair use protection of derivative works. In evaluating whether derivative works are infringing, the methodology employed should be as follows:

Look to the nature and objects of the selections made, the quantity and value of the materials sued, and the degree in which the use may prejudice the sale, or diminish the profits or supersede the objects, of the original work.

Id. at 576.

If the work fulfills the test set forth, it is no longer derivative. Instead it is transformative or has become an original new work itself.  “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id. at 579.  Parody is considered transformative. “Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. “ Id. at 580.

The first element of the methodology is looking at whether the work is looking at the nature and objects that were utilized in the secondary work.   When the secondary work does not critically examine the original work, the other factors become more important. “If, on the contrary, the commentary has no critical bearing on the substance or styel of the original compisition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work dimisnishes accordingly (if it I does not vasnih), and other factors, like the extent of its commerciality, loom longer.” Id. at 581-82.

The value of the materials used is less important when comparing works of fiction against each other. Althought, if comparing a short work of fiction against a longer work of fiction, this can mitigate against infringement.

The third factor refers to the quantity and value of the material uses. In other words, how much of the source material and of what important is the source material before it is infringing. In looking at 50 Shades, the characters of the Twilight series are very important whereas I would argue that the settings are less important. I.e., the Twilight series takes place primarily in Forks, Washington and the 50 Shades is also set in Washington. What makes it curiouser, however, is that Bella and Edward honeymoon in a remote paradise island and, alas, so do Ana and Christian. In Twilight, the paranormal aspects of the story are quite important and in 50 Shades, those elements are replaced with dark sexual desires. Possibly replacing a core element of the Twilight series is sufficiently different.

Finally, is the issue of commercialism. The court acknowledges that a good parody can essentially kill the market for the original however “the role of the courts is to disginuish between biting criticism [that merely] suppresses demand [and] copyright infringement,[, which] usurps it.” Id. at 592.

The aforementioned methodology, however, is a fair use defense for a derivative work.  James et al could argue that her work is not derivative but original (although given MOTUs existence this is an incredibly difficult argument to make). If the work is not derivative, then the measurement is whether the other work is infringing based on the substantial similarity standard (which is tested by a number of different concepts such as abstractions test, total concept and feel, pattern, subtractive, “extrinsic/intrinsic”, among others).

Post Acuff Rose Cases

Two post Acuff cases of interest deal with non fiction works:

Castle Rock Entertainment Inc v. Carol Publishing Group

Castle Rock, the copyright owner of Seinfeld, sued Carol Publishing over a non fiction trivia book published about the events and characters in Seinfeld. Castle Rock Entertainment Inc v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998)  There was no parody defense here. Instead, the non fiction trivia book was said to inappropriately copy creative expression rather than facts.  In other words, the Senfield characters and their words were creative expression unlike the number of at bats a baseball player may have or the number of times it has rained in September in California for the past twenty years.

Harry Potter Lexicon case (Warner Bros. Entertainment, Inc. v. RDR Books)

J.K. Rowling sued to prevent the publication of the Harry Potter Lexicon.  This was a work based on a website that was run by the Lexicon author with the stated approval of JK Rowling herself.  Rowling argued in her complaint, however, that  “[T]here is a big difference between the innumerable Harry Potter fan sites’ latitude to discuss the Harry Potter Works in the context of free, ephemeral websites and unilaterally repackaging those sites for sale in an effort to cash in monetarily on Ms. Rowling’s creative works in contravention of her wishes and rights.” Complaint, Warner Bros. Entertainment, Inc. v. RDR Books, (No. 07 Civ 9667), ¶ 4.  In issuing the injunction in support of Rowling, the court found that the work was not derivative, but contained too much copying of Rowling’s material to be considered fair use.  In employing the methodology in the Acuff Rose case, the judge determined that the balance of factors weighed in Rowling’s favor.  In December 2008, a rewritten version was published by RDR Books.

Fanfiction and Commercialism

Professor Rebecca Tushnet who will be on hand to answer questions later this week, argues that fan fiction is not infringement because there is no commercial aspect to fan fiction. It is written and distributed freely without renumeration. In Let Everyone Play: An Educational Perspective on Why Fan Fiction Is, or Should Be, Legal, the authors argue that a footnote in Suntrust Bank v. Houghton Mifflin (268 F.3d 1257 (11th Cir. 2001)), suggests that not for profit writing mitigates against finding fan fiction infringing:

Of great importance with respect to fan fiction is footnote 24 attached to that statement: “Randall did not choose to publish her work of fiction on the internet free to all the world to read; rather, she chose a method of publication designed to generate economic profit” (Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1269 (2001)).

Disclaimers v. Cease and Desist Letters

Like the ineffectiveness of copyright disclaimers by fan fiction writers so to are many of the cease and desist letters/emails/blog posts written by authors lacking in legal support.  Merely because the original creator doesn’t like slash fiction or AU fiction that is loosely based on their work doesn’t mean that the fan fiction work is infringing. In other words, the author of the original work does not decide what is infringing. C&D letters are not legal determinations of wrongdoing either. Often C&D letters are used simply to scare someone into taking an action that the author of the C&D letter desires.  A C&D letter should not be ignored, but whether a work is copyright infringement depends on the actual text of the secondary work.

Conclusion

From a purely intellectual standpoint, a case involving 50 Shades and Twilight would be fascinating. 50 Shades was fan fiction. It was written by an author who gives her direct source of inspiration to a copyrighted work. It has dozens of similarities with the original, particularly the emotional arcs of the characters and the characters’ traits, but it also deviates in major ways. It speaks to the issue of copyright of characters, rights of publicity of the actors like Pattison and Stewart, and the scope of transformative works. While the case would likely go to trial where a jury would decide it, the mere fact that a case like this makes it past the motion point would provide good precedent. It could clarify the legal bounds of fan fiction and identify more clearly the issue of derivative works.

(Of interest and not covered  here is to what extent James has protection over her unregistered work, Masters of the Universe.  While copyright exists for any fixed expression of an idea, it is not entitled to statutory damages until the work is registered even though under Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010), the Supreme Court ruled that registration is not a jurisdictional prerequisite to filing an infringement suit, but it does prevent the damages to which an unregistered work may be entitled.  It might not even be possible for James to register her work because it lacks originality without the unchanged names, locations, and the like. It might also limit the claims of piracy she could make against the freely shared MOTU).

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

62 Comments

  1. WeStandontheShouldersofGiants
    Mar 18, 2012 @ 07:20:02

    I was wondering if you were familiar with the web video series -Everything is a Remix
    It is a 4 part series that addresses these same issues.
    http://www.everythingisaremix.info/everything-is-a-remix-part-1/

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  2. mozzer0906
    Mar 18, 2012 @ 07:21:37

    Thank you for this. I found it to be very interesting and illuminating. I’ve really enjoyed the thought that goes into these articles.

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  3. WeStandontheShouldersofGiants
    Mar 18, 2012 @ 07:22:41

    You can watch the whole series on Vimeo – http://vimeo.com/14912890

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  4. Ros
    Mar 18, 2012 @ 07:35:31

    Really clear and helpful summary of the issues, Jane.

    I think the Cassandra Claire case was both copyright infringement and plagiarism, since she was using text from copyrighted works (Buffy, Pamela Dean’s books and others) without acknowledgment.

    Do you know anything about how copyright laws vary from country to country and whether authors are bound by the laws in their country or that of the source material or both?

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  5. A lurker
    Mar 18, 2012 @ 07:47:45

    Cassandra Clare is accused to have passed off someone else’s fan fiction as her own work, for example.

    I don’t believe that ever happened.

    She used to take lines from popular (at the time) shows like Buffy and Red Dwarf and Blackadder and incorporate them into her stories. She didn’t attribute them, she said, because it became a game for her fans to figure out where they came from.

    But the big incident that got her blackballed from fanfiction.net involved her lifting a several-page passage from a Pamela Dean novel, changing the character names as appropriate, and inserting it into one of her stories. After the fact, I believe, she got permission to use the passage, but when the chapter was originally posted, she never attributed the words to Dean.

    When caught out, Claire (as she was known then) claimed she’d copied the passage out in a notebook because she liked it, but forgot to write down the source. Later, when looking back over her notes, she came across the passage and forgot she wasn’t the original author.

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  6. Jane
    Mar 18, 2012 @ 07:53:59

    @Ros: I’m not at all familiar with non US copyright laws and I believe that they vary a great deal from country to country.

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  7. Jane
    Mar 18, 2012 @ 07:55:17

    @WeStandontheShouldersofGiants: No, but I will look at it. Thanks. Without looking at it, it reminds me of this NYTimes story which may be where fiction is headed.

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  8. Merrian
    Mar 18, 2012 @ 08:04:45

    I was wondering about the issue of jurisdiction when writers and fan ficcers might live in different countries and the website putting up the fan fic maybe in yet another. Is that in issue here as well do you think?

    Thanks for laying out the American legal framework so clearly. I know I have seen CI and plagiarism used interchangeably and probably done it myself in discussions.

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  9. Mireya
    Mar 18, 2012 @ 08:38:05

    @Jane: I just finished reading the NYT article. I find the notion HIGHLY disturbing. So basically, there will be no “original” anything the way things are headed? A world where it will be okay to “mix” work from others, verbatim, and publish it as yours? Excuse me while I go puke.

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  10. Maggie Robinson/Margaret Rowe
    Mar 18, 2012 @ 08:49:49

    I read the NYT article about the young German author, and find myself pretty appalled. I used to teach high school English, and would not have rewarded a student who lifted pages out of someone else’s work with a passing grade, to say nothing of an award nomination.

    As a writer, I try to avoid repeating even my own phrases from book to book. (Really, how many ways can a kiss be described?) I know there’s nothing new under the sun, but what’s the point of creating when you are really stealing/”sampling”? I enjoy a good parody as much as the next person, but as a writer I draw my own boundary lines over which I will never step. If I can’t think of my own ideas, I’ll stop writing.

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  11. Maili
    Mar 18, 2012 @ 09:17:15

    @Mireya: I don’t see how we could stop that when there are books like Pride & Prejudice & Zombies. It may give an impression that it’s all right to – as that teen author puts it – “mix” the old with the new, regardless of whether a work is in public domain. Eep. Interesting times ahead, I’m thinking.

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  12. Sarah Frantz
    Mar 18, 2012 @ 09:25:19

    Does a finding of copyright infringement rely on the infringer earning money from their infringing work? Or does it rely on the infringed work losing money because the infringing work is taking its audience? Or does it not rely on money at all?

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  13. Jane
    Mar 18, 2012 @ 09:34:24

    @Sarah Frantz: The fourth element of the fair use analysis is commercialism. Tushnet and others have argued that fan fiction does not impair the market for the original work.

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  14. LG
    Mar 18, 2012 @ 10:52:35

    @Mireya: According to the arguments I’ve seen defending authors accused of copyright infringement, nothing is original anyway, so what’s the big deal? There doesn’t seem to be any recognition that deriving inspiration from many sources is not the same as deriving inspiration primarily from a single source, although at least in most cases lifting a large chunk of text from another work is usually seen as wrong (not to mention illegal). That NYT article is just horrifying.

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  15. KZoeT
    Mar 18, 2012 @ 11:30:34

    @Jane: I’m curious what Prof. Cushnet has to share with us!

    Since 50 Shades is fanfic that has been made commercially available, would that negate any kind of fair use of the original source because it is now a for-profit work?

    This is all so fascinating, Jane, and one of the best series and ongoing conversations I’ve read on DA.

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  16. KT Grant
    Mar 18, 2012 @ 11:49:07

    So if someone writes fan fiction on MOTU and James wants to sue them, she can’t because she didn’t copyright it, although MOTU is 50 Shades of Grey is still in essence because it hasn’t been editing enough to be very different from MOTU?

    And if Meyer or say Summit sues (if an when James sells the movie rights) and this is taken to court, how long would it take for the case? Years? And during that time would James still get royalties for the sale of the 50 Shades of Grey books or would there be something like a cease and desist until the case was finished?

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  17. Li
    Mar 18, 2012 @ 12:01:23

    Meyers’ publisher issued a statement saying they had no plans to pursue a case against James, which seems to indicate they don’t think they would prevail in court. Of course, that doesn’t address the moral issues raised by using another author’s characters to inspire an original work. This isn’t anything new, of course. Look at Wide Sargasso Sea, The Wind Done Gone, Death at Pemberly, etc. for examples of authors who appropriated characters from another novel. In the case of Sargasso Sea and Pemberly, the book was out of copyright so no legal issues involved, but with The Wind Done Gone the author lost her case. All very interesting, and will continue to be an issue going forward thanks to the internet and fan fic communities.

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  18. Maili
    Mar 18, 2012 @ 12:17:44

    @KT Grant:

    So if someone writes fan fiction on MOTU and James wants to sue them, she can’t because she didn’t copyright it

    As a Brit, it’s copyrighted as James’s the moment she created it. I thought that was the case in the US as well? Gah.

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  19. KT Grant
    Mar 18, 2012 @ 12:20:35

    @Maili:

    Can fan fiction be copyrighted? I’ve written and have fan fiction up on Fan Fic net. So if someone writes a fan fic of the fan fic I wrote of a book or movie, etc… and publishes it and makes money off of it, they can’t because the moment I posted my fan fic, it’s copyrighted? *heads hurts*

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  20. Author on Vacation
    Mar 18, 2012 @ 13:10:50

    @A lurker:

    I find it hard — VERY hard — to believe an author can look back on a passage s/he DID NOT write and believe the work was his/her original work. I just don’t buy it.

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  21. Maili
    Mar 18, 2012 @ 13:36:25

    @KT Grant: Heh. MOTU is recognised as James’s creation, isn’t it?

    I’m operating on basis of a fact I’d worked in accordance with publishers’ house guidelines, which had something like: do not use fan translations (e.g. comix scanlations, fan subtitles of anime/films and similar) for publication or used as a basis of own translations. Even though those fan translations were made without publisher/creator’s permission and authority, they’re still copyrighted to fan translators/fan groups. Whether it’s legally enforceable (such as, can a fan subber sue a production company for using his or her fan translation?), I have no idea. I suspect the house guidelines were written along the line of ‘better be safe than sorry’.

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  22. Lynn S.
    Mar 18, 2012 @ 14:07:20

    @Jane: The brain just about explodes with the possibilities or lack of them. Would intellectual property be covered by misappropriation? Even if the use isn’t deemed copyright infringement or plagarism, it certainly smacks of misappropriation to me. But all of art is a quick bit of thievery and I suppose if an original thought is priceless, then authenticity must be the new Mastercard.

    I will say that Ms. Hegemann has some serious obfuscation skills for someone so young, although she might want to learn that the strongest defense shouldn’t include an apology.

    @Author on Vacation: It would seem wise to make a note to yourself that those were someone else’s words. If you’re hand copying several pages of text, is it that much harder to also write the source? Perhaps Ms. Clare’s subconscious wanted her to have deniability.

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  23. A lurker
    Mar 18, 2012 @ 14:16:18

    @Author on Vacation: I didn’t want to editorialize, even if I agree with you. I was just reporting what she claimed at the time.

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  24. AH
    Mar 18, 2012 @ 14:19:25

    I think someone may have brought this up already, either here or on another thread. What happens when someone writes a fanfic of Fifty? Then what? It would be interesting to see what she would do with that.

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  25. Lou
    Mar 18, 2012 @ 14:46:58

    @Li: Have you got a link to share for that statement please?

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  26. Snailmail
    Mar 18, 2012 @ 15:19:14

    @Author on Vacation: Funnily enough I had a short fanfiction plagiarised where someone simply changed the character names and lifted the whole story. To your question as to how can someone not know they copied a work? My first inkling she was delusional or a good liar was to find her on her blog responding graciously to reviewers and chatting with them about the inspiration for her story. It apparently came to her in a dream, then she said she’d based it on one of her former failed loved affairs, then when backed against the wall she claimed her account had been hacked by an ex lesbian lover who’d planted the story there to discredit her. When I contacted her to ask what was going on, she rounded the whole sorry saga off by threatening to cut her wrists at which point I told her to quietly take it down and carefully backed away. This author not only managed to convince herself she’d written the story (right down to chatting with readers and reviewers about it) she also managed to convince herself of some plot to blacken her name by making her out to be a plagiarist. I couldn’t have made all that up if I’d tried. Must add that I’m with you – how on earth do you imagine you wrote a whole story you actually didn’t?

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  27. Has
    Mar 18, 2012 @ 15:32:40

    @Li:

    I can’t find any mention to this either – I’ve google fu and this would have been picked up by the press and online. Also Meyer and her publishers will be smart not to comment about suing or not suing to keep their options open and I’ve never heard of an author or a publisher stating they wont sue when something like this has cropped up.

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  28. greenjasmine
    Mar 18, 2012 @ 15:34:08

    Fanfiction exists and now we know that there has been and probably will continue to be monetization of fanfiction. I’m still trying to my head around that because I am fairly traditionalist in this issue that if it is fanfiction, abide by the disclaimer or go to literotica or fictionpress.com and slog it out as an original creation.

    But obviously, the amount of money and notoriety from this story and what it has exposed is changing the game.

    So perhaps the question for original creators/copyright holders now is “How much of the repurposed fanfiction/fanwork do I own as the source material creator? What is my percentage of ownership? Am I owed compensation for that percentage?”

    In the case of sampling music, I believe that is one of the criteria. Is the piece of sample recognized to a specific song/music piece? If yes, are royalties due to the original songwriter?

    Perhaps that is where we are heading with this situation. Because the paper trail exists for MotU and FSoG (and to degrees, FSD & FSF), then perhaps Meyer could ask a court, “The 50 Shades series is X% similar to MotU and MotU is Y% similar to my work and the series would not exist without that Y%. As such, I own Z% of the 50 Shades as source creator/copyright holder of the series that it takes from and deserve compensation for that.”

    I don’t know if she would be successful or if she’d even attempt it. I have a feeling that Meyer just wants to pretend that this isn’t happening OR she has been advised against taking any action as yet. I suspect she’s not in the best spot right now. Legally, she may have a case but the PR may not be worth it.

    However:

    “It could clarify the legal bounds of fan fiction and identify more clearly the issue of derivative works.”

    Should she choose to take the challenge, the above may end up being her legacy for writers/creators and fans.

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  29. Courtney Milan
    Mar 18, 2012 @ 15:46:24

    @Li: I’m pretty sure everything you’re saying is based on incorrect facts.

    First, I don’t think that a statement from Meyer’s publishers that they would not sue has been forthcoming. I haven’t seen that anywhere, and Google has nothing. I’d love to see a link, but I doubt it happened. It would be a dumb thing for a lawyer to approve.

    Second, I don’t think it’s relevant. Her publishers would only have the right to sue if they had the exclusive right to derivative works from Meyer–which would give them the right to object to derivative works being made. When first asked this question, I figured it was up to the publishing contract–although contracts that give the publisher rights to derivative works and the characters in question are usually not ones sold in heated auctions that get far into the six figure range. But upon further thought, I think it’s pretty obvious her publisher doesn’t have that right–otherwise, Meyer would not have been able to release Midnight Sun, Twilight being told from Edward’s, rather than Bella’s point of view, as a PDF on her website without one iota of legalese from her publisher.

    Finally, what you say about The Wind Done Gone is also factually inaccurate. No final ruling on the merits was reached in The Wind Done Gone case, as the parties ended up settling, but the 11th Circuit vacated the injunction that the district court had entered against publication of the book on the grounds that the plaintiff had not proven a likelihood of success on the merits.

    You can read the 11th Circuit’s opinion here, but this is the money quote:

    In light of the admonition in Campbell that courts should not judge the quality of the work or the success of the attempted humor in discerning its parodic character, we choose to take the broader view. For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work. Under this definition, the parodic character of TWDG is clear. TWDG is not a general commentary upon the Civil-War-era American South, but a specific criticism of and rejoinder to the depiction of slavery and the relationships between blacks and whites in GWTW. The fact that Randall chose to convey her criticisms of GWTW through a work of fiction, which she contends is a more powerful vehicle for her message than a scholarly article, does not, in and of itself, deprive TWDG of fair-use protection….

    TWDG is more than an abstract, pure fictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War….

    As the district court noted: “The earlier work is a third-person epic, whereas the new work is told in the first-person as an intimate diary of the life of Cynara. Thematically, the new work provides a different viewpoint of the antebellum world.” 136 F.Supp.2d at 1367. While told from a different perspective, more critically, the story is transformed into a very different tale, albeit much more abbreviated. Cynara’s very language is a departure from Mitchell’s original prose; she acts as the voice of Randall’s inversion of GWTW. She is the vehicle of parody; she is its means–not its end. It is clear within the first fifty pages of Cynara’s fictional diary that Randall’s work flips GWTW ‘s traditional race roles, portrays powerful whites as stupid or feckless, and generally sets out to demystify GWTW and strip the romanticism from Mitchell’s specific account of this period of our history. Approximately the last half of TWDG tells a completely new story that, although involving characters based on GWTW characters, features plot elements found nowhere within the covers of GWTW.

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  30. Rosy
    Mar 18, 2012 @ 16:13:26

    Is it legal to reference other works (without citing the source) when writing a book?

    I’ve seen it done before in published literature – Christopher Paolini, in one of the books in his Eragon series, has a character talk about a “lonely god”, which is a shout-out to Doctor Who.

    Or is this something to avoid?

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  31. Transformers: Fanworks and copyright | mediatedlife
    Mar 18, 2012 @ 16:33:29

    [...] a good, brief explanation of plagiarism and copyright as related to fanfic here, but I want to expand on that, and go into more detail about the legal issues behind different [...]

  32. Fifty Shades of Grey and The FanFic Question | Wine, Women and Wordplay
    Mar 18, 2012 @ 17:31:36

    [...] course, this is an ethical argument.  Legally, such things are very hard to enforce (see Dear Author for more on copyright and plagiarism). And in reality, most of the time, the question doesn’t [...]

  33. Sunita
    Mar 18, 2012 @ 18:27:34

    This article is great, and it helps me understand why there are so many disagreements about what constitutes plagiarism. Academic rules are pretty strict in terms of what has to be reported and the threshold for what meets the definition is lower. Someone coming from a teaching background may be likely to see plagiarism where others don’t.

    Courtney, thanks so much for that link and quote. I remember the case vividly when it was going on, but I’m not sure I ever read the opinion.

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  34. KZoeT
    Mar 18, 2012 @ 19:47:11

    The only statement from anyone involved with Twilight about 50 shades was back in January: http://www.publishersweekly.com/pw/by-topic/book-news/page-to-screen/article/50188-e-l-james-and-the-case-of-fan-fiction.html

    On fan fiction in general was this bit from Stephenie Meyer in 2010: http://www.twifans.com/profiles/blogs/stephenie-meyer-talks-twilight .

    Ooh! Meyer’s camp has a history of going after unauthorized fanfic. Russet Noon ring a bell to anyone? The fic seems to absolutely tread on copyright but the case is is an interesting read nevertheless: http://www.fanhistory.com/wiki/Russet_Noon

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  35. Liviania
    Mar 18, 2012 @ 21:53:39

    @Rosy: That would be an allusion – perfectly legal and usually regarded as rather literary.

    Oh, and lots of people seem to be linking to fanhistory. You might want to search for info and link to fanlore instead. Fanhistory is mostly made by scraping (aka plagiarizing other webpages) and not well edited. In fact, here’s fanlore’s article on fanhistory.

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  36. Ruthie
    Mar 19, 2012 @ 15:17:34

    Really interesting post, thanks!

    I haven’t read 50 Shades, but I think the question of how derivative a work of fiction has to be in order for it to be actionable is an interesting one, particularly in genre fiction. My understanding is that a lot of the derivative nature of 50 Shades is in the characters — that the heroine is very Bella-like and the (not-quite-)hero Edward-like, because they were originally based on Edward and Bella. But Edward and Bella are not themselves wildly original characters. Bella is a naive, jaded high school student stuck in a town she hates. Edward is a hundred-odd-year-old vampire with a chip on his shoulder and a hard-on for Bella. So if you take away the town and the paranormal element, is there really enough left that *is* derivative to matter? Is “naive, jaded heroine meets powerful older man who falls for her instantly” sufficiently derivative to constitute copyright infringement, particularly when it would be difficult to argue that the work affects Myers’s market?

    These aren’t ethical questions, mind you. That’s a whole separate deck of cards. I just get the impression that as fanfic goes, 50 Shades is sort of fanfic-lite. And I wonder if, by the time all the names and situations and places were changed, there was enough left of the original to make the offense matter in any real sense.

    If you wrote fanfic of The X-Files, but Mulder and Scully weren’t FBI agents, and they didn’t investigate the paranormal — if, say, they were two police detectives who were attracted to each other, and one liked to go by his gut, and the other liked to follow the book — well, it’s hardly derivative anymore, right? I wonder if the same thing isn’t true of 50 Shades.

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  37. Janine
    Mar 19, 2012 @ 17:25:12

    Thanks so much for the clear and concise explanation. So many people throw these words around without knowing exactly what they mean that it becomes easy to get confused. I really appreciate the clarity this post provides.

    ReplyReply

  38. greenjasminetea
    Mar 19, 2012 @ 19:11:00

    @Ruthie : 50 Shades borrows more than Edward and Bella characters. It has incorporates some specific events/moments from the series as well as incorporates other characters with similar characteristics from the original series. Sure, they are ‘reinterpreted’ as in EdwardChristian saves BellaAna in MotU/FSoG from getting hit by a cyclist instead of Edward saving Bella from getting hit by a van AND BellaAna’s (step)father (the only one she knows) just happens to as taciturn as Charlie AND the fathers of BellaAna & her good ethnic friend, JacobJose, just happen to know each other AND RosalieKate hooks up with EmmettElliot AND I could keep going on and on but you get the idea.

    So there are many instances of similarities and MotU is not fanfic-lite at all. It basically takes the canon and re-fits it for the main difference is that the characters are all human and instead of paranormal, there is the BDSM/sexual content.

    But having read the Twilight Saga and at least up to ch 14 of FSoG (and pieces of Darker and Freed), there is still a lot of Twilight in the 50 Shades series.

    I’d also say that people who say that 50 Shades is completely original are being disingenuous. Or maybe they are just skipping to the “good” parts of FSoG and since Twilight has no sex scenes, then there you go. But again, I only got to Ch 14 and I saw a lot of similarities and mind you, I haven’t read Twilight in over 3 years.

    ReplyReply

  39. Ruthie
    Mar 19, 2012 @ 19:52:24

    @greenjasminetea: Thanks for the detailed response! I see your point. Many, many more similarities than it seemed from the scanty plot summaries I’d read. Thanks for the response!

    ReplyReply

  40. Alicia
    Mar 20, 2012 @ 00:54:31

    I don’t know why I read the comments, I want to respond to everything, haha. Great piece, Jane, I really appreciate the work you all are putting into this.

    ReplyReply

  41. Deee
    Mar 20, 2012 @ 12:03:21

    @Li: The lower court ruling re the Wind Done Gone was vacated on appeal; the U.S. Court of Appeals for the Eleventh Circuit vacated an injunction and the following year, Houghton Mifflin made a donation to Morehouse College, and the Mitchell estate dropped further appeals. So no, the case did not end in favor of the Mitchell estate because, as Wikipedia says, “the Court of Appeals found that the likely outcome of a full adjudication of the rights involved was a finding of fair use.”

    ReplyReply

  42. Aja
    Mar 20, 2012 @ 12:14:37

    @Li:

    Um, that’s actually not true at all; the author of The Wind Done Gone actually had their work upheld in court as an example of “parody” despite its being a serious work. This is one of the absolute clearest examples of fair use fanfiction being upheld by the courts.

    Quite frankly, I find the entire starting point for this post to miss the most fundamental thing about fanfiction, which is that it is only the latest, modernized incarnation of a centuries-old history of recursive literature, and is actually much older than the concept of copyright infringement.

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  43. Deee
    Mar 20, 2012 @ 12:15:30

    @Rosy: Why yes, it is! That’s because it’s not actually possible, in the US, to copyright a phrase! In fact, you can’t copyright any sort of concept at all! So make all the references you want! Join Neil Gaiman, for example, in doing so! Or Lev Grossman, who mentions Quidditch in his novel The Magicians! You don’t have to write in a cultural and interpersonal vacuum.

    ReplyReply

  44. Stumbling Over Chaos :: Looks like spring in linkity land
    Mar 23, 2012 @ 19:19:37

    [...] Author focused on fan fiction this week: Fan Fiction: A Tale of Fandom and Morality. Fan Fiction, Plagiarism, and Copyright. Are Fictional Characters Copyrightable? Fan fiction Q&A with a law professor. Fan fiction, [...]

  45. Creative Commons: The Answer to the Fanfic Question? | Wine, Women & Wordplay
    Mar 25, 2012 @ 15:04:20

    [...] Typically, Dear Author has some great posts on this.  A fascinating post on whether you can copyright characters here, an interview with a law professor on fanfic and US copyright law here and for those who didn’t catch it the first time, the very popular one about fanfiction and copyright, here. [...]

  46. Around the Common Room 3/31/12
    Mar 31, 2012 @ 14:23:37

    [...] Readers and writers of fan fiction may be interested in Dear Author’s piece on fan fiction, plagiarism and copyright. [...]

  47. Marie Lamba
    Apr 26, 2012 @ 08:31:40

    Wow, Jane, thanks for this concise piece about a complex issue.

    With the exchange of info becoming so fluid online, and writers influencing other writers, it’s all so mind-boggling. As writers, it’s sometimes hard to determine where our own rights begin and end. Honestly, it all sets my head spinning.

    Thanks for a this concrete post!

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  48. Mica
    May 25, 2012 @ 12:17:25

    @Author on Vacation: Well, if the text was written in the same way you use to write your own texts they can. It depends…I have a problem to recognize my own works. I’m a lawyer and I never recognize my own petitions and I remember a situation some years ago that I wrote a scene to a fanfiction my friend was writing (she asked me to write) and one or two years later I found a paper printed at my room and read and thought ‘oh, I loved this scene, who wrote this?’ and only some time later I found out I was the one who wrote that.
    I know it’s not common not to recognize your own work, but I think when you take notes indiscriminately you can not remember it was not you who wrote that.
    But if you’re a writer you have to pay attention to this things, specially if you know you’re the kind of person who usualy forget things (I am).
    (sorry for the bad English…not my first language).

    ReplyReply

  49. Everything Is a Remix « JW Loots
    May 31, 2012 @ 00:27:41

    [...] was reading an article about fan fiction, plagiarism, and copyright. Someone linked to these amazing videos in the [...]

  50. GRRRRRRRRRR!!!!!! (ranty random bits) « Her Hands, My Hands
    Aug 15, 2012 @ 18:33:46

    [...] Bears repeating: plagiarism is not always copyright infringement, and vice versa. Share this:TwitterFacebookLike this:LikeBe the first to [...]

  51. Jodi
    Nov 20, 2012 @ 19:31:43

    Given how much of this article draws from “Let Everyone Play,” it seems like there should be a legitimate citation for it, lest it mimic the topic it is attempting to explain. Though the article is noted, it is regarding a minor topic, despite also addressing the primary topic of this posting (if not the specific example) and despite the author clearly being familiar with it.

    Lewis, Black, Tomlinson. “Let Everyone Play: An Educational Perspective on Why Fan Fiction Is, or Should Be, Legal.”
    http://www.mitpressjournals.org/doi/pdf/10.1162/ijlm.2009.0007

    That said, the discussion of 50 Shades of Grey is a nice application of theory to facts.

    ReplyReply

  52. Jane
    Nov 20, 2012 @ 19:37:17

    @Jodi: hi Jodi. Thanks for commenting. I had not read that MIT article. My piece was drawn basest on research and experience that we have dealt with for several years here on DA. The law is a funny thing, all the relevant cases on point will be cited ad naseum because they are relevant and on point.

    ReplyReply

  53. Jodi
    Nov 20, 2012 @ 19:53:25

    @Jane: It is true that the I article I noted and yours rely on the seminal cases, which are limited, but you did cite it (under the section on Commercialism), so it seems as if you’re familiar with it, and, hopefully, you read it! Regardless, best of luck.

    ReplyReply

  54. Jane
    Nov 21, 2012 @ 07:10:24

    @Jodi: When I pulled up the article, it didn’t ring any bells. I guess I was confused that you were suggesting I was engaging in plagiarism myself? I included the cite which was appropriate and gave attribution. But thanks for the link.

    ReplyReply

  55. Saturday Links | To the Pain
    Jul 13, 2013 @ 18:56:15

    [...] Fan Fiction, Plagiarism, and Copyright (Dear Author) – This is a really interesting topic for me and Eleanore, because it’s part of the reason we started this site. Our work was hosted elsewhere, and when someone started copying my story, the site owner dismissed it as an “homage.” Lovely. Anyway, this is a good start on some of these  principles, particularly for you fanfic writers and readers out there. Or, y’know, ANYONE. [...]

  56. Everything Is a Remix
    Aug 29, 2013 @ 13:26:24

    […] was reading an article about fan fiction, plagiarism, and copyright. Someone linked to these amazing videos in the […]

  57. Fanfiction: the great legal debate | Jonathan Tebble
    Oct 09, 2013 @ 17:15:36

    […] ‘Copyright isn’t well understood by fans or creators.  Essentially copyright is a bundle of rights that accompanies the fixed expression of an idea.  It’s the fixed expression that is protected, not the idea.  When an author writes a book or a television show is created and produced, there are a number of rights that develop known as intellectual property rights. These are not true property rights, like ownership of land (known as real property) or your car (known as personal property) but certain rights to distribution, reproduction, and derivative works belong exclusively to the original copyright holder.’-http://dearauthor.com/features/letters-of-opinion/fan-fiction-plagiarism-and-copyright/ […]

  58. Robert
    Feb 28, 2014 @ 00:31:37

    You should show this page to the creators of TAPIR (The Anti-Plagiarism Investigation Reports) on Fanfiction.net. They don’t seem to know about the legal definition of Plagiarism or Copyright!

    ReplyReply

  59. Robert
    Feb 28, 2014 @ 00:34:09

    It would deflate TAPIR’s heads!

    ReplyReply

  60. Curious
    Mar 11, 2014 @ 18:06:06

    I’m curious as to whether you have an opinion about the writers and supporters of “read-the-book” fanfiction, which produces verbatim enormous sections of copyrighted works, using your article **to defend** that activity. Yes, that’s how I was directed here. I don’t think anything you’ve said in any way endorses or supports their assertion that what they are doing is permitted by copyright law. Nor does my understanding of copyright law in the US allow them any ‘freedom’ to engage in the activity of complete copying of text belonging to other individuals.

    I would also like to point out that they argue that the reposting, verbatim, of an entire novel is not plagiarism simply because they are ‘crediting’ the author of the original book. They are basing this upon your stated definition of plagiarism: Plagiarism depends, in large part, on what amount of borrowing one does without attribution.

    But plagiarism also includes the reproduction of large *attributed* portions of text when that text makes up the majority of a work. That’s accepted in academic circles as well as the definition you have provided.

    ReplyReply

  61. Jane
    Mar 11, 2014 @ 20:05:27

    Copying text is plagiarism and it may be copyright infringement. Attribution doesn’t cleanse copying of infringement.

    ReplyReply

  62. Curious
    Mar 12, 2014 @ 23:02:36

    @Jane: That is my understanding of copyright law as well. These individuals are claiming that your definition given within the article, however, absolves them of any allegations of wrong-doing. Their statements giving abbreviated quotations from your article are being used to defend copying entire novels and placing them on fanfiction.net.

    So as to not be accused of misrepresenting this, what they are doing is taking a chapter of a novel, such as JK Rowling’s Harry Potter and the Sorcerer’s Stone, Rick Riordan’s House of Hades, Richelle Mead’s Vampire Academy, LJ Smith’s Nightworld series, etc ad infinitum – and posting the copyrighted content of the published novels under the guise of having someone read the story. While they provide “commentary” from characters in what they apparently presume to be a MST3K format (which I assume they’ve never seen given that the commentary is not satirical or any form of parody), they reproduce – verbatim – well-known copyrighted novels and distribute them via fanfiction.net.

    They are claiming that your definition of plagiarism allows for this behavior because they are stating that the novel they are posting belongs to whichever author’s name it was published under.

    Some examples of “read the book” postings:
    https://www.fanfiction.net/s/7588492/1/Book-Club-Frostbite
    https://www.fanfiction.net/s/7322102/2/Book-Club
    https://www.fanfiction.net/s/8194484/2/Lightning-Theif
    https://www.fanfiction.net/s/9350529/4/Room-of-Requirements
    https://www.fanfiction.net/s/6081922/1/Reading-Fallen

    This is a prolific issue which is plaguing the fanfiction community – these types of stories can also be found on Archive of Our Own and Wattpad (who remove them rather expeditiously once reported).

    Because the supporters of such postings are using your words in order to defend this activity, I wanted to ascertain your opinion on the matter.

    ReplyReply

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