Cross-posted on the Washington Lawyers for the Arts website, http://thewla.org/blog/.
This weekend I had the opportunity to participate in a panel at Geek Girl Con on “Fanfiction: Sharing, Creating, and the Law,” put on by the Washington Lawyers for the Arts. It was a great experience! It was fun to work with the knowledgeable and friendly panelists, and I got answers to questions I’ve had for a long time. I’ve spent a lot of time researching the concept of fair use and learned a lot of legalities, but less about how I could apply them in a practical sense. Now I’m armed with a lot of knowledge and a solid sense of direction. Very helpful!
Just being at Geek Girl Con was amazing in itself. I brought my spouse and children, and we all spent some time exploring the con, dressed as characters from Doctor Who or Nancy Drew. Who knew you could find a life-sized robotic Dalek standing next to a woman in a TARDIS costume singing along to “Let it Go”? Or make a pocket-sized model of the solar system?
The panel was moderated by Allison Durazzi, Executive Director of the Washington Lawyers for the Arts, and the participants were Kristin Ann King (myself); Rachel Buker, WLA board member; and Brian Rowe, chair of the WLA Board of Directors. Our goal was present both creative and legal perspectives on creating fan fiction.
I went first and talked a little about my background. I write short stories, blog posts, and critical essays. My first book, Misfits from the Beehive State, was published last year. It’s not fanfiction — it’s a book of surreal short stories set in Utah, all about people who aimed for perfection but fell down the rabbit hole instead. I also write fanfiction, mostly for the Doctor Who fanfiction site A Teaspoon and An Open Mind. That site has tens of thousands of stories, all put out there for free by fans, mostly using a pen name. It’s a wonderful avenue for storytelling, but I do often wish I felt free to put it out under my own name. I’ve had many questions over the years about the practicality and legality of borrowing others’ work. What happens if someone thinks I’m infringing? Is it possible to know for sure whether my use of a copyrighted work is protected by law?
Rachel went next, and she covered the fundamentals of copyright, including thorough definitions of copyright and the public domain. In brief, copyright is a bundle of rights that protects “original works of authorship” that are fixed in a tangible form of expression. It has to be creative expression — for example, ideas and facts are not covered by copyright. Those kinds of works, works whose copyrights have expired, and certain other types of work are in the public domain. She gave links to tools for determining whether a work might be in the public domain. For a fuller explanation of these concepts, check out the PowerPoint slides from the talk .
Then we broke for a little bit of Q&A, and the audience asked thoughtful, interesting questions.
Next Brian discussed ways that people can legally use copyrighted works. Free speech is a first amendment protection, and it’s also built right into copyright law in the form of “fair use.” When courts are considering whether or not it’s fair use, they consider four factors: the purpose of the use, the nature of the copyrighted work, the amount of work used, and the effect of the use on the market of the copyrighted work. Brian covered several cases in which that the courts decided whether or not fair use applied, as well as a few cases that were settled before a decision could be handed down. He encouraged the audience to create transformative works and pointed out that every creative work is a remix of one kind or another. Star Wars, for example, borrowed heavily from other movies. Brian also provided a list of legal resources, including the Washington Lawyers for the Arts, free and low cost resources, and organizations that help defend these free speech rights, such as the ACLU and the Electronic Frontier Foundation.
These resources are in the slides, but they’re worth adding here as well:
We finished up with more audience questions, and once again they were thought-provoking.
I learned a lot from this panel that I can take home and use in my writing and publishing endeavors. Here are just a few of my key takeaways:
- The fair use clause of the copyright is extremely fuzzy and open to interpretation by the courts.
- If a copyright holder thinks someone is infringing on their work, it does not always go straight to court, and most cases end up being settled. There are specific steps that can be taken, such as a “cease and desist” letter or a “takedown request,” and specific right and wrong things to do in that situation.
- There are organizations out there that provide free and low-cost legal assistance, depending on the situation.
I also came out of this panel with a whole lot more hope for the future of fanfiction as a legal activity. Fanfiction writers always have a cloud hanging over us: we think our specific use of copyrighted material is legal, but it’s impossible to know for sure unless it goes to court.
But maybe this situation can change. Other countries treat copyright and fair use differently. For instance, in Japan, fan works has more respect, and there are more specific rules for whether or not they violate copyright.
One of the audience members asked about the possibility of having a Hugo Award for fanfiction. The idea has been kicked around, but people are a little concerned. Rachel took the question, and of course, there was no definitive answer. But she did ask whether there was a monetary prize given out, and the answer was no, just a statue. She then inquired as to what the statue was made out of, joking, “If it’s chocolate, that might be OK!”
I would be delighted to see a Hugo award for fanfiction. I would love to see a world where fanfiction can be freely shared and professionally respected.
Thanks to the WLA for the opportunity to participate on this panel!