Is FanFiction Illegal?

[Potemkin_Prod]

MirrorKes7 wrote:

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On the other hand, I think fanfic promotes the franchise overall and helps keep interest and loyalty alive. Fans who band together and form creative communities like this one are never a bad thing for a franchise. That kind of loyalty and enthusiasm is a big deal. It wouldn't be tolerated if it wasn't beneficial on some level, IMO.

As someone who's published fanzines since 1979 and written for them since 1975, I can assure you that during the 70's, fanzines and fan fiction were quite beneficial to the franchise. The studio was well aware of it (how could they not be with Star Trek Lives! extolling its virtues, and Star Trek: New Voyages publishing fan fiction from fanzines?), and even used it to their advantage (during the 80's, fanzines would receive letters from Susan Sackett, Gene Roddenberry, Harve Bennett, Sylvia Rubenstein, etc., often to request we write and support this or that or the other thing).

In fact, I chose not to answer the poll because, to me, the choices of "beneficial to the franchise" or even "very beneficial to the franchise" aren't provided to select. In fact, the question itself is somewhat biased against fan fic.

And to answer the question, "Is it illegal?" Certainly. It's by the grace of the studio that they've never once shut me down for either the fanzines we produced or the fan films we're begining to produce. As my wife has pointed out time and again: it's good for the studio, otherwise we'd've been given C&Ds years ago.

[SonsofSoong2338]

The last message is absolutely right. I should have included "beneficial" to the poll options, but until everyone had given me the idea I hadn't considered that it would actually be beneficial to the franchise. But, you're right. Trek fans don't want to believe it's over, so to continue through fanfiction would keep profits alive from canon materials=)

[TiberiusMaximus]

The Klingon Ghoul wrote:

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This would say otherwise:

Both of those are from different parts of this page: http://en.wikipedia.org/wiki/Legal_i...th_fan_fiction

And of course I'm sure there is wiggle room either way, but it seems that for the most part fanfic is ok as long as you don't try to make a profit on it outside the proper channels (Pocket Books for Star Trek as an example). Or, unless the copyright holder specifically says they don't want any fanfic (As Ann Rice has done.)

Hmmm...can something be considered illegal if it is allowed by those it could be seen to affect or damage - at least where it comes to copyright? Obviously I'm not talking about a situation like giving someone drugs or statutory rape or anything, in those cases 'consent' isn't the issue. But Paramount allows fanfiction and fan productions.

But what would happen if Paramount suddenly changed their minds about fan productions? They'd have a lot of lawsuits on their hands, although they'd win most of them. I think a lot of fans would be disgusted however, and that would be a huge problem, a lot bigger than any perceived profit loss. I say perceived because I don't think it's there but whatever. So part of the issue is that it would cause a massive uproar with the fans if TPTB no longer allowed it.

[Ensign_Redshirt]

Technically, it's illegal. Nobody will ever bother to enforce it though.

As for the poll options... it causes no damage.

[Goliath]

In his book Discipline and Punish, Michel Foucault talks about how, in every society, there is a "margin of tolerated illegality"--a gap between what is considered criminal and wrong, and what is considered merely illegal. This gap is often a site of conflict between the power of the state and the resistance of the people, arising from clashing value judgments.

During the Prohibition Era, for example, drinking fell within the margin of tolerated illegality for large sections of American society. It was illegal--but people did it anyway, because it wasn't considered wrong. And eventually, the law was changed (back) to reflect this judgment.

I think fan fiction falls within this margin. It is illegal--but since it causes no obvious harm to anyone, and may actually benefit the copyright holder, indirectly, it's not considered wrong--at least, not by its writers and readers.

The outright piracy of copyrighted material also falls within this margin, for many people.

On the issue of fair use--from what I understand, this post is an example of what fair use actually entails. I quoted Foucault's work, while giving proper attribution, instead of presenting the author's ideas as my own. I'm not sure what Foucault would have thought of people writing fanfic based on his work.

[Shatnertage]

^ I can't even imagine Foucault fan fiction (I suffered through a lot of his work in grad school), but the thought makes me smile.

And yes, that fits my definition of fair use as well, and if you were writing a paper wouldn't be considered plagiarism, though if you were turning it in for a grade I'd want to see a page number and the proper citation.

[bigdaddy]

SonsofSoong2338 wrote:

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So, I write fan fiction, and I was curious to know just how bad I was being. I asked a few people online if fanfiction was copyright infringement, even if one had no intention of making money from the writing. I got a great resounded "Yes". They said that fanfiction presented a "competing product" to the original, thereby infringing on protected material.

How can it complete with the original if you aren't making money?

[Admiral Buzzkill]

The Klingon Ghoul wrote:

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Oh, and I like how you condemned me for "Cherry picking" and then do the same thing to my post.

Your post is just an opinion in a conversation, and everything in a couple of paragraphs isn't equally worthy of attention or response. That's not the same as rifling through pages of reference material to pick out a couple of things that taken out of context can be made to appear to support a position that they do not.

TiberiusMaximus wrote:

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But what would happen if Paramount suddenly changed their minds about fan productions? They'd have a lot of lawsuits on their hands, although they'd win most of them.

Precedent says that they'd win them all, except for the occasional instance where a lawyer made a case for parody (and there is very little in the genres of fan fiction or films that is truly parody, although many presentations are not meant to be taken seriously - parody is not defined as "this guy thinks he's funny").

Studios and publishers have gone after this kind of thing in the past - they simply shut it down for as long as they continue to pay attention to it.

TiberiusMaximus wrote:

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I think a lot of fans would be disgusted however, and that would be a huge problem, a lot bigger than any perceived profit loss. I say perceived because I don't think it's there but whatever. So part of the issue is that it would cause a massive uproar with the fans if TPTB no longer allowed it.

Fan fiction is not consumed or noticed by a "massive" or even "a lot" of fans as those numbers have meaning to an organization like Paramount. Neither 20th Century Fox nor "Buffy The Vampire Slayer" as a property suffered any noticable harm when the studio went after the webmasters a decade ago, nor would they now.

[Goliath]

spookytage wrote:

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^ I can't even imagine Foucault fan fiction (I suffered through a lot of his work in grad school), but the thought makes me smile.

Actually, IIRC, Foucault himself described his books as novels, of a sort.

So it might be argued that Foucauldian "scholarship" is fan fiction.

Now that I think about it...that sounds like a good idea for a conference paper...

Nah.

And yes, that fits my definition of fair use as well, and if you were writing a paper wouldn't be considered plagiarism, though if you were turning it in for a grade I'd want to see a page number and the proper citation.

Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (Vintage Books: New York and Toronto, 1995), 82-3.

[Kaziarl]

Dennis wrote:

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Your post is just an opinion in a conversation, and everything in a couple of paragraphs isn't equally worthy of attention or response. That's not the same as rifling through pages of reference material to pick out a couple of things that taken out of context can be made to appear to support a position that they do not.

As I already said, I quoted sections that directly talked about fanfiction within the whole article, which fits with the context of this discussion. I also linked the article so people could read the whole thing themselves if they were interested. When you brought up the claim that fanfiction under fair use was not addressed in the court systems, I gave references from that same article showing otherwise. So, again, I'd like to know how none of that has anything to do with this conversation?

It would also seem that you are trying to put words in my mouth. Insinuating that I am claiming fanfiction is completely legal under fair use. I have not once said that. I first stated that, to my knowledge it could fall under fair use. Then, when told it doesn't, I looked up the article you seem to have an issue with, quoted sections relevant to this conversation showing that it has been looked at under the fair use doctrine, and even said there is some debate about it, and that it generally falls to the copyright holder to make the final decision. So, quite frankly, I'm not sure what your problem is with what I've said.

[Nerys Ghemor]

bigdaddy wrote:

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How can it complete with the original if you aren't making money?

In an indirect manner--if the fanfic is good enough, what it can do is shrink the available market for tie-in literature. I myself rarely buy official Treklit anymore, because I think that there are fanfic authors out there who are offering a better product and at no charge.

As to the shows, movies, DVDs, and other types of merchandise, fanfic is fuel to my fandom. So really the question depends on if you're a Treklit publisher, or not.

[JarodRussell]

On the making money part... how illegal is it to post fanfiction and add a "Donate" button at the bottom of the page?

[Bry_Sinclair]

Ensign_Redshirt wrote:

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Technically, it's illegal. Nobody will ever bother to enforce it though.

As for the poll options... it causes no damage.

Would totally agree.

[kes7]

JarodRussell wrote:

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On the making money part... how illegal is it to post fanfiction and add a "Donate" button at the bottom of the page?

I wouldn't ....

[BolianAuthor]

It's illegal if you make money from it without being a published Trek author. Technically any mention of anything Trek or belonging to ANY show or film is use of that label without permission, unless you've asked for that permission, so in that sense, then yes, fanfic is illegal, just as two children playing Star Trek in the front yard would be illegal.