Is Fan Fiction Flouting the Law?

Fan fiction, in which DIY writers lift characters from books, films, TV shows, and other creative works and insert them into their own story lines, is booming–but its legality is murky, writes Canadian copyright lawyer Grace Westcott in the Literary Review of Canada.

U.S. law offers “significant copyright protection to distinctive fictional characters” and “derivative works,” reports Westcott, and in her view this would include most fan fiction. But she gives air time to an alternative argument put forth by Rebecca Tushnet, a Georgetown University law professor and a fanfic writer who argues that the form constitutes fair use. Tushnet founded the Organization for Transformative Works to push the view that fanfic is a “new expression of transformed ideas” and thus protected.

“It may be that [fan fiction’s] shadowy status–largely tolerated, but legally vulnerable–leaves it just where it ought to be, in a healthy state of tension between fans and authors,” Westcott concludes. “Because the fact is that fan fiction has so far been able to operate as a tolerated use, if not a fair use.”

Her lawyerly advice? Keep it out of the courts by establishing“an online code of respect that recognizes and addresses authors’ rights and legitimate concerns.”

Westcott doesn’t even consider the thornier question of fan fiction based on real and often living people, for instance, the “bandslash” or “bandfic” phenomenon (see the Utne Reader‘s recent “Slasher Girls”) built around rock-star characters and often homoerotic subplots.

Her hope for some sort of handshake agreement seems at once practical and unrealistic: practical because fanfic might lose ground in court, but unrealistic because the very sort of independent creative spirit that created fanfic will bristle against any sort of conduct code. And because any day now, Sting will Google himself, find an account of himself blowing Stewart Copeland, and phone his lawyers.

Thanks, Arts & Letters Daily.

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