Reflection and Analysis

Fanfic and Fair Use (12/25/2016)

Let's start off with what fair use is.

According to Merriam-Webster, fair use is "a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner."

Why though am I reflecting on what fair use actually is?

Someone recently left a comment in one of the comment treads on an essay discussing plagiarism in fanfiction saying fanfiction is stealing, only to also lambast fanfic writing as lazy writing. Said person further purported the idea a writer using the characters and places created by another writer was enough to constitute plagiarism. They also argued adding new expression or meaning to another artist's work was disrespectful, because in their mind the original creator's art is word of god, and should be left as is.

However, they are far from correct in their claims.

In fact, what's really sad is this; I've found the writers who are anti-fanfic fall into two categories, those who are paranoid about their work being stolen because of the controversy regarding Marion Zimmer Bradley, or the writer is egotistical enough to believe their work is untouchable, but that as the writer, there is no way their work could be imperfect or even warrant criticism of any kind. However, I'm going to start off with why fanfic falls under fair use.

Note: Fair use is a legal defense one can use if someone is brought to court for copyright infringement. The fact something is in fair use does not prevent copyright holders from filing cease and desist orders for copyright infringement. In the same regard, someone deciding to pull instead of fight a cease and desist order doesn't mean the use wasn't in fair use either, but that someone didn't want to involve lawyers and pay legal fees. Fair use is argued case by case.

One - Fanfiction only uses portions of the copyrighted material, an amount that is not large enough to be construed as infringement.

One of the arguments the person put forth comes down to the fact they put a lot of work into their characters, and the places they made, thus the use of characters and place is not a small amount in their mind, but a large portion of the work. Other writers who are against fanfic find their characters very dear to their hearts, and find it upsetting that others would do things to their characters they would never dream of. The latter is why keeping characters in character, and not writing kink just for the sake of kink is important, the normal question here being whether you would do to another person's characters what you would do to your own. Answers will of course vary from writer to writer, but it is something to think of.

The argument this writer is making though is that place and characters are copyrightable, when the courts have ruled that in most cases they are not. The less developed a character is, the less protected by copyright they are. Same goes with place, which is even harder to copyright. In addition to this, setting and character only make up two-fifths of the story, the others being plot, conflict, and theme. The idea that setting and character make up a good chunk of the work is worrisome, as this means the writer is depending way to heavily on that two-fifths of the story to make their story work, so questions of how good the work is comes up.

For example, the Twilight series focused on characters, took place from real life places, and had weak plot, conflict, and theme through the entire work. Due to the low quality, many have created parodies of the Twilight series. The courts have ruled parody to fall under fair use, but when I speak of parody, there are works that qualify as parody, and those that don't. More on that in a bit.