Copyright and Fanfiction

The latest fanfiction community scandal seemed to start with an app called Pocket Archive Library. Twitter and Tumblr users started sharing screenshots of the app a few weeks ago, claiming that it illegally copied fanfiction from AO3, and that it was tricking users into paying for fanfiction. It was later clarified that the app is simply a skin for the AO3 website–it doesn’t “steal” fanfiction per se, it’s just a very specialized browser for the site. but Pocket Archive Library does show ads, and ask users to tip the app maker or to subscribe to pro features, with the money going back to the app maker. There’s also a group called Woodsign j.d.o.o. that has produced a slew of fandom-specific fanfiction apps, that do seem to be copying and redistributing fanfiction from Archive of Our Own, and charge for access to these works.

The primary concern with these apps is copyright. Aside from the ethically-dubious act of monetizing something that’s actually available for free, fanwork creators don’t want their work being distributed without their permission, or for others to make money off of something they made. While a number of users on social media have made various legal claims, some of them less than accurate, the concern boils down to the fact that fans believe they own their fanfiction in some way. It’s not necessarily a controversial idea, or a new one, but it is one that has evolved over time, and isn’t black and white. So let’s talk about fanfiction and copyright.

Most fans know that fandom has a contentious history with copyright; mostly, in the form of copyright holders attempting to control or eliminate fanworks, believing that they violate copyright in some way. Fanfiction, as we conceive of it today, started with the Star Trek fandom, and at first, reception was warm. Gene Roddenberry, the creator of Star Trek, was reported to be a big proponent of fanzines; some contemporary fans report writing to Gene Roddenberry’s office about fandom and getting fanzine recommendations in return. The Star Trek Welcommittee, a group committed to introducing fans to fanzines, conventions, fanart, and more, had its address in the front of a number of professionally published Star Trek novels from Pocket Books.

But that warm reception wasn’t universal, and other corporate concerns took a very dim view to fans and fanfiction. Lucasfilm had a hard time with the ‘zine scene; they wanted to be sent fanzines to make sure they were appropriate, and the president of the official Star Wars Fan Club, Maureen Garrett, further clarified in an open letter in 1981 that Lucasfilm did not want mature fanfiction out in the wild, and that it was only allowing Star Wars fanfiction to exist at all as long as it stayed relatively family friendly, like the films. And Lucasfilm was on the nicer side; a Disney executive once called the local sheriff over some slash fanzines at a local convention. In general, media creators and corporate interests generally seemed to ignore more general fanfiction, except in rare cases like Anne Rice. The primary target was usually mature and homoerotic work, for a variety of reasons, from the belief that it wasn’t “right”, the belief that it was “dangerous” to portray homosexuality positively, and the oft-repeated belief that mature works made the source product look bad, or could wind up in the hands of children.

Overall, it fostered a sense that, yes, fanfiction was both illegal and illicit, and it needed to be traded and created carefully in order to stay alive. And in some cases, fanfiction was very literally illegal. In the 1970s and early 80s, when fanfiction was flourishing, distributing pornography through the mail and homosexual activity were criminalized in most US states. Giving pornography to minors is still illegal. Fans would sometimes get around this by using age statements and publishing more privately and securely via Amateur Press Associations, but still.

It often created this sense that fanfiction was teetering on the brink of being taken away, all the time, and that fans had to write and act in a certain way in order to keep corporate interests from deciding they were doing something wrong. Many readers will be more familiar with how this expressed itself on the internet; in the 2000s, it was much more common for every fanfiction to include a disclaimer, avowing that the fanwriter A) knew that they didn’t own the characters and B) that they weren’t looking to make money off their work.

A central issue to this tension is that copyright is a very thorny and complicated issue; in the United States, copyright law was first established in 1909 and most of its most important rules and exceptions have been established via later court cases. In 1981, Melinda M. Snodgrass wrote a contemporary view on whether fanzines could be copyrighted; at the time, she noted that fair use, copyright’s built-in loophole system, had very narrow definitions, generally allowing parodies or criticism of copyrighted works to be created without violating copyright. She cautioned fans to use disclaimers, and to understand that putting a copyright © on the title page of their fanzine didn’t guarantee that the fanzines were legally their property. These days, the activism of The Organization for Transformative Works and court cases specifically addressing transformative works have paved the way for the general legal conclusion that, yes, fanfiction works are probably distinct, transformative works, not in violation of copyright and likely able to be copyrighted in and of itself. This is a better explanation than I can really write, and I’m not a lawyer, but it basically boils down to: until it gets decided in court, our best guess is that fanfiction is legal.

At Leakycon Dallas this past August, I was asked what I thought about the tension between copyrighted material and its fanfiction, and I said that I thought we were best off if we considered them almost completely unrelated, ultimately. I’ve thought a lot about that, if only because I ultimately felt my answer was true, but a bit simplistic. We’re at a point now where we’re no longer teetering on the edge of fanfiction being sued out of existence; the Organization of Transformative Works, the unpoliceability of the Internet, changing culture, and changing case law have all paved the way for a relative golden age, where fanfiction is omnipresent, significantly less taboo, and presumably legal. When I picture the future of fanfiction, I wonder if it won’t evolve to be a distinct literary genre, a way of writing, not just a way of writing copyrighted characters, that is seen as an entirely different creative endeavor to writing a conventional book or short story. Ultimately, I view fanfiction as a type of discussion, that uses the common cultural language of books, TV shows, movies, etc. to create worlds, ideas, and stories. And it’s a uniquely egalitarian discussion, freed from the pressures of profit, of society, of would/could/should. It should be considered separate from the copyrighted material because it actually serves a radically different purpose, even if they’re both ultimately creative entertainment mediums.

I think when we discuss copyright in regards to fanfiction, the real discussion we’re having is about the freedom of discussion, and our right to claim our thoughts and ideas, to share them in the ways we prefer. The internet has only exploded our fears about our inability to control what we say, how we’re perceived, and fandom as a whole still prefers that fanfiction stay private, separate, and under the control of its creators. Perhaps as fanfiction and the internet metastasize into our larger culture, what we will need to decide is not how and in what ways we can copyright that work, but how we should do so.

Talk to the author on Twitter at @yipp33kiyay. And read her other articles, both here and on! They’re just as nerdy but a lot more coherent.

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