Is FanFiction Illegal?

[SonsofSoong2338]

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.

I, however, argue with this. Since TNG is absolutely finished (there won't even be anymore books, I'm told), how can TNG fanfiction present a competing product? I want to hear everyone's views on this. Like so many things illegal things, is it even likely one would or could be prosecuted?

 

[JarodRussell]

It's a gray zone. If you don't sell it, you're fine. Some fanfic authors have become professional authors, too.

 

[Admiral Buzzkill]

Your poll doesn't match your thread title.

Does fan fiction "damage" the Trek franchise? Not measurably.

Is fan fiction a violation of copyright law? Yes, unambiguously.

 

[Nerys Ghemor]

You are not permitted to make profit from it. Also, the law states it is copyright infringement.

In practice, it is a grey zone. Many authors turn a blind eye to it, and a few even seem to encourage it. In other words, they are choosing for the time being not to enforce their rights...either because they don't feel it's worth their time or resources, or because they don't care. However, if an author decides they are going to take legal action, they are within their rights to do so, even if they were ignoring or encouraging it before that point.

As to whether it "damages" the Trek franchise, the only area that would have any potential to be "damaged" would be the books...if the Treklit publishers put out a product that a person finds inferior to the fanfics, and reads fanfics instead, then the publisher could essentially lose to the competition.

Now, my PERSONAL feeling is that if you are a professional author with access to professional editing and publishing, then you ought to be better than a fanfic writer who is acting alone or with a volunteer beta. If you aren't, then that's your problem, not mine, and the WISE decision (though not the one a business is likely to make in practice for the legal reasons stated above, as well as other legal reasons!) is to do what the government tries to do when they find a really, really good hacker: get them on their side.

 

[Kaziarl]

I always thought that, unless you tried to sell it, it fell under the Fair Use rules. Although it does seem the depend on the individual copyright holder. (LucasArts for example says fanfic is just fine, but does have some rules regarding content if I recall correctly)

 

[Admiral Buzzkill]

Nope, fair use has nothing to do with this at all, though some fan fiction authors advocate for some kind of exemption for it.

 

[Kaziarl]

This would say otherwise:

However, U.S. copyright law does allow for fair use of a copyrighted work by non-copyright-holders according to four tests. These tests take explicitly into consideration the purpose of the new use, nature of the copyrighted work, amount used in new work, and the market value effect of the new work. Whether a particular instance of use counts as "fair use" is determined by courts on a case-by-case basis.

Most major studios and production companies tolerate fan fiction, and some even encourage it to a certain extent. Paramount Pictures, for example, allowed the production of Star Trek: The New Voyages and Star Trek: The New Voyages 2 from Bantam Books, fan fiction anthologies which followed Bantam's Star Trek Lives! by reprinting stories from various fanzines; as well as Star Trek: Strange New Worlds, a series of ten anthologies from Pocket Books in which the short stories were selected through an open submissions process geared toward novice writers.

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

 

[Admiral2]

The answer is "Absolutely. It's stealing." You're using someone else's intellectual property for your own purposes without permission. Accept it.

 

[JarodRussell]

The answer is "Absolutely. It's stealing." You're using someone else's intellectual property for your own purposes without permission. Accept it.

Time to close the Fan Fiction forum then. As well as Fan Art and Fan Productions.

 

[Nerys Ghemor]

Yeah, and if you have that strong of an objection, quit writing and reading it so you are not inconsistent with your principles.

 

[Admiral Buzzkill]

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

Yes, and they're cherry-picked paragraphs. Reading the entire article, and even better the article on fair use itself, or even better than that by researching some of the more notorious cases of recent decades actually makes clear how limited the fair use rule is - it's an affirmative defense in court, not a recognized legal "right" as that article itself notes. Fans who want to justify this stuff harp on one part of the four part test usually applied in court - the part concerning money - as if their disinterest in or inability to turn a buck off of what they do effectively protects them. It does not - fan fiction is tolerated, like many other forms of piracy now, not protected.

 

[Kaziarl]

The "Cherry picked paragraphs" mentioned fanfiction specifically, which is what this discussion is about. I don't need to read the entire declaration of independence to have a discussion on the 1st amendment. Nor did I feel the need to quote the entire article since I gave the link so you could do so yourself if you were interested in the rest.

I also acknowledged the fact that there was wiggle room in the interpretation, and that it was tolerated and not specifically legal. So... I'm not too sure what point you're trying to make considering you essentially paraphrased what I already said.

 

[kes7]

I think the whole issue is just a murky mess, honestly. I largely agree with what Nerys says above -- that the only way fan fiction could be argued to be harmful is if the fans who would normally buy licensed Treklit choose to read fan fiction instead because they find it superior. However, I have seen very little evidence that this is the case. Most people I know who read fan fiction ALSO read the licensed novels. I know a few people who have chosen fanfic over the novels, but I think they would have given the novels up anyway, because they were so displeased with the direction the continuity went. (And yes -- if there's fanfic that is so good it's stealing readership from the pros ... perhaps the pros should consider hiring those authors to write novels.)

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.

Adding to the confusion are the people who have started in fanfic, ended up writing the licensed stuff, and then once they were "official," published the fanfic later. I don't know how common this is, but I've heard of at least a couple of instances of it.

Anyway, I fall on the side of "it's okay to do this," but obviously no one should make money off of it unless it's through official channels (so the owners get their cut). And if the author says "no, please don't do this," a la Anne Rice, then I think that should be respected.

 

[Admiral Buzzkill]

I don't need to read the entire declaration of independence to have a discussion on the 1st amendment.

That would be pointless. There is no reference to the First Amendment of the U.S. Constitution in the Declaration of Independence, since the former document would not be written until 1787, eleven years after the Declaration.

See, reading is good.

In any event, reading beyond the couple of sentences you copied doesn't support the contention that fan fiction is protected or even addressed by any relevant court rulings or body of law, so the point of presenting that material here was to demonstrate...what?

And if the author says "no, please don't do this," a la Anne Rice, then I think that should be respected.

Yes, rather like respecting the security guard stationed at the mall door when attempting to shoplift. It's a good idea to respect the owners of things who can have you up before a judge.

 

[Kaziarl]

Speaking of reading is good, did you read it? It gives you references to cases that have supported both sides of the argument. So how is it not addressed by any court rulings when it gives examples of such court rulings? One section mentions Suntrust v. Houghton Mifflin Co. which supports a creative work, in this case a parody, of gone with the wind. Another section mentions Anderson v. Stallone where Stallone actually won against an author who wrote a proposed Rocky IV script.

So please, again, tell me where it's not addressed?

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

 

[Potemkin_Prod]

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]

This would say otherwise:

However, U.S. copyright law does allow for fair use of a copyrighted work by non-copyright-holders according to four tests. These tests take explicitly into consideration the purpose of the new use, nature of the copyrighted work, amount used in new work, and the market value effect of the new work. Whether a particular instance of use counts as "fair use" is determined by courts on a case-by-case basis.

Most major studios and production companies tolerate fan fiction, and some even encourage it to a certain extent. Paramount Pictures, for example, allowed the production of Star Trek: The New Voyages and Star Trek: The New Voyages 2 from Bantam Books, fan fiction anthologies which followed Bantam's Star Trek Lives! by reprinting stories from various fanzines; as well as Star Trek: Strange New Worlds, a series of ten anthologies from Pocket Books in which the short stories were selected through an open submissions process geared toward novice writers.

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