The Briar Patch: Fic Writers on Publishing Fanfic

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Recent publishing trends have demonstrated there is money to be made on fanfiction. Publishing houses (Omnific and The Writer's Coffee Shop) have sprung from popular fic archives; the sale of self-published repurposed fics has become quite common; fanfiction contests have offered gift cards or other rewards; and, most recently, Amazon's authorized "fanfiction" licensing scheme Kindle Worlds has begun offering royalties for works that obey set conditions and rules. The most prominent (though least common) instances of former fic going pro have entailed the Big Five publishers taking on reworked fanfiction as "original" novels: Fifty Shades of Grey, Beautiful Bastard, Gabriel's Inferno, The Submissive, Wallbanger, Sempre, and Loving the Band.  

I've used scare quotes around the word "original" not to suggest that fanworks can't deserve the term, but rather to highlight the term as contestable--and much contested. In publishing, it often seems to mean "original enough" (not to be sued), and it seems to have meant that for a long time--not just since Fifty Shades. To lay readers, the meaning ranges from "unique" to "the product of my own labor" to "I think I can make a buck from this" to "the completely autonomous expressive content of my soul." "Original" means different things to different people in different circles--much like the word "fanfiction" itself. "Fanfiction" is often used synonymously with "derivative work," a phrase with copyright implications. Yet fanfiction is often better described as transformative, parodic, critical, and, yes, "original," in any of the senses above. And, while such distinctions may be the stuff of literary debate (is this really parody? Or is it just bad imitation? Isn't all work derivative of something? Does any piece of writing really "stand alone"?), these slippery terms are often used to distinguish the legal difference between "okay to profit from" and "infringing." 

The recent explosion in published fanfiction has occurred because publishing companies came to realize--very publicly, and on a large scale--that "fanfiction" was not a synonym for "derivative." It turns out that the publishing world and fanfiction communities had long been operating on assumptions about copyright law as it pertains to fanworks that were even more restrictive than copyright law itself.  

Fic contributor and intellectual property attorney Heidi Tandy offers a perspective on how and why at least some of this profit has been legal:

One of the fundamentals of U.S. copyright law is that an author/creator can only protect the "expression" of an idea. Usually, that means the word-for-word text in a song, movie, or book. Since the 1950s it's also been possible to copyright a character, but the protection for characters is very limited; a character is only copyrightable when she's especially distinctive, or so central to the story that the character is essentially the ''story being told." Young, dark-haired boy wizards with scars and owls are not copyrightable; if they were, Neil Gaiman's Tim Hunter (in The Books of Magic) would have made impossible the existence of the Harry Potter we all know. But as Gaiman said in 1998:

>>It's not the ideas, it's what you do with them that matters. Genre fiction, as Terry Pratchett has pointed out, is a stew. You take stuff out of the pot, you put stuff back. The stew bubbles on.1

Tropes, oft-used character elements, character flaws, Mary Sues and Gary Stus-even when an author uses a lot of those elements all together, it doesn't make the character copyrightable, and therefore, if someone else uses those elements to tell a different story using different words (and different character names, because using the same names could be a trademark issue) the second author isn't automatically engaging in copyright infringement. The expression of the ideas-the specific words-aren't the same. 

Legal opinions, of course, vary on every subject, and Fic is not handing out legal advice. But the idea of copyright described above is very far from the one many fan writers understood. Fan writers often believe their writing lives exist at the pleasure of rightsholders, and while that may not be true, few fan writers have the resources to fight a legal challenge from a large corporation, and no case has ever been fought in court. Most fans take work down when asked. Many oppose attracting attention to fanworks in any way--let alone commercially, as Fifty Shades of Grey and its cohorts have--and this has been especially true of those fans who remember the "bad old days" of multiple cease and desist orders. 

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