Fan Fiction: Moral Rights v. Transformative Use

Fan fiction could be considered akin to the act of sampling in hip-hop or electronic music. And like sampling, fan fiction has never had the chance to prove itself in court as an act of transformative creation constituting fair use under 17 USC § 107. No sampling lawsuit ever reached the decision stage (defendants always settled), and the Organization for Transformative Works says it isn’t looking for a test case in which to argue its point. The OTW instead stakes its fair use claim on the precedent set for transformative use in Campbell v. Acuff-Rose, another hip-hop case.

Given the primarily non-commercial nature of their work (unlike the sample-based music that spawned litigation), writers of fan fiction, aside from the occasional cease-and-desist letter, are “generally left alone”. But even if the OTW isn’t spoiling for a fight, fierce battles still sometimes erupt over fanfic – in the court of opinion, at least. Some authors (Neil Gaiman and J. K. Rowling among them) have little problem with fans with creatively appropriating their work, but others seriously oppose it.

On May 3, 2010, Diana Gabaldon, a popular historical fantasy/romance author, published the first of three blog posts outlining her objections to fan fiction. The post, “Fan-Fiction and Moral Conundrums,” contends, among other things, that such work is often poorly written and/or pornographic; that using other writers’ characters is a crutch, or a weak ploy to gain an audience; and that people interested in the social/communal aspects of fan fiction should stick to discussion groups. She also asserts: “you can’t use someone’s copyrighted characters for your own purposes, no matter what those purposes are.”

This post created a furor in the fan fiction community, which took serious issue with her complaints. According to the fantasy writer George R. R. Martin, who contributed to the debate with a defense of Gabaldon and his own arguments against fan fiction, “all hell broke loose,” and the post and its follow-up received a thousand comments.

In her third post, Gabaldon further argues the protected status of “character.” She allows that ideas – whether themes, settings, archetypes, etc. – come from all manner of sources and are freely borrowed and shared. A fictional character, however, “the only truly vital part” of a story, is, if “fully described and developed,” not an idea but a “thing,” the expressive object protected by copyright law (and potentially trademark law, contract law, etc.). She posits: “Characters – good characters, ‘real’ characters – derive their reality from the person who created them.” Just as Flaubert once famously said “I am Madame Bovary,” Gabaldon claims here to “be” her characters. When practitioners of fan fiction meddle with a writer’s canon, they meddle with the writer herself. “When you mess with my stuff,” she says, “you’re not messing with my characters – you’re messing with me.”

It’s a pretty traditional view of fiction, and I’m more in the “Death of the Author” school, so I have a few problems with the argument, but let me address a few of her other claims first.

Yes, I’m sure a great deal of fanfic is pretty terrible. Here’s a site to prove it. (And I’m sure plenty of it is also pornographic. I won’t link to any.)

As for the assertion that you can’t use a copyrighted character for your own purpose, no matter the purpose: Gabaldon and Martin obviously recognize no transformative element in fan fiction and consider such works categorically derivative. Martin insists on labeling them “unauthorized derivative works” – and 17 USC § 106 does grant copyright owners the exclusive right to prepare derivative works. Gabaldon’s absolutist statement about purpose, though, overlooks the first factor of 17 USC § 107 (purpose and character of use), which provides for uses like commentary, criticism, and parody – and, OTW argues, additional transformative use. But as we’ve noted, while parody is protected, non-critical appropriation generally isn’t.

Gabaldon’s “moral” argument against fan fiction is a lot more tenuous – and interesting. She’s trying to build a case here, I think, for an author’s moral rights. She notes the “moral conundrums” of fan fiction, labels it “immoral,” and refers to the Berne Convention in relation to the protection of fictional character, which she believes to be a fixed “thing” derived from the author, part of the author herself. Tamper with character, and you hurt the author. Though she doesn’t quote it explicitly, I believe she’s arguing from Article 6bis of the Berne Convention (Moral Rights), the part granting an author the right “to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

Gabaldon may find it “immoral” and injurious to her reputation, emotions, and other bits of her psyche when fanfic writers meddle with her characters and sully the integrity of her canon, but US copyright law doesn’t protect her sensitivities and moral rights as such. Title 17 adopted some language from the article above in the Visual Artists Rights Act of 1990 – but only in relation to visual artists and their works; unlike textual works, content and container can’t be separated with most works of visual art, so modification leaves original expression unpreserved. And as we’ve discussed, US copyright law typically concerns itself with creators’ economic rights.

Given postures like Gabaldon’s, I’m glad that the US has left questions of moral rights, reputation, integrity, and so forth mostly to laws concerning defamation, libel, and slander, rather than copyright. It seems to me that integration of a moral rights provision for all creative works – especially one equating fictional work with its creator’s personality and sensibilities, as Gabaldon might have it – could potentially curb current fair uses like criticism and parody, to say nothing of other transformative use. And like the OTW, I’m for broadening the definition of fair use and the possibilities for transformative use, not limiting them.

As mentioned, OTW stakes it claim for fan fiction and fair use on Campbell v. Acuff-Rose, a case concerning parody – and it would be hard to argue that much fanfic is parodic. Even so, that case and the guidelines it established for transformative use were referred to in Suntrust Bank v. Houghton Mifflin, a copyright infringement lawsuit involving Alice Randall’s The Wind Done Gone, a work that appropriates characters, settings, and altogether a good portion of Margaret Mitchell’s Gone With the Wind. Randall’s narrative, told from a slave’s perspective, reinterprets Mitchell’s story, adding new themes, viewpoints, and implicit social commentary. A federal circuit court judge lifted an injunction again the book, finding that it offers “social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” It’s a transformative work – although one that’s been made, as the result of a settlement, to wear the ill-fitting label “unauthorized parody.”

There are types and uses of transformative work beyond strict parody. Many defenders of fanfic point to the mythic tradition and the continual repurposing and recontextualization of certain mythic and archetypal characters, from Odysseus and Robin Hood to Faust and Dracula. Successive generations of artists recast these characters in new settings and narratives and find in them new meanings and uses based on the artists’ perspectives and beliefs, which are informed by their sociocultural mores and milieus. One artist’s Circe may be an evil enchantress keeping our hero from achieving his quest, while another’s version may be an isolated figure limited by male dominance and misogyny. (Look at Martin’s Cersei Lannister, which many readers maintain is a riff on the mythic sorceress.)

And just as mythic characters can be reshaped according to current attitudes, repurposed characters can serve as access points to attitudes and perspectives in earlier works and as a means of re-examining them. Randall uses Scarlett O’Hara and company to explore slavery and present a far less romanticized view of the American south. In Wide Sargasso Sea, Jean Rhys appropriates Jane Eyre to address issues with nineteenth century colonialism.

Of course, both of those novels contain elements of criticism and commentary, while much fan fiction originates from a more participatory impulse. Gabaldon and Martin ask why fanfic writers don’t just develop their own characters, or at least appropriate old characters in the public domain (Jane Eyre, for instance), but I think they’re not accounting for this impulse, a desire to participate actively in the culture. Given the speed of current culture, our mythic figures – from Batman to Buffy Summers – spring up and coalesce into cultural touchstones at a rapid clip. And many people want to engage creatively with these characters and the worlds they inhabit. Some may want to give voice to certain erotic fantasies. Some just want to play around in the sandbox with characters. And some love a fictional world but perhaps don’t recognize themselves in it, or find themselves marginalized in it (as could be the case in the Lt. Uhura example quoted here), so they want to transform the world, if only a little.