The Lawbringer: The trouble with fan fiction
by Mathew McCurley 
Sep 17th 2010 at 6:00PM
Finally, I return home after a bit of bliss. Fun is over -- it's time to get serious by talking about fan fiction. Sort of. You see, fan fiction is one of those areas that people love to hate, hate to love and everything in between. What is it about fan fiction that gets people so upset and so defensive? Is it the personal nature of the craft, the accusatory piggy-backing on other people's characters, or just that so much of it is mind-numbingly terrible? Who knows? Today, we're going to explore a few of the concepts of fan fiction in a very no-nonsense, barely legal way, to give you aspiring authors something to consider while writing your own fan fiction or even original content.
With my post-vacation bliss now completely out of my system, thanks to reading so much terrible fan fiction in preparation, I am happy to share with all of you a story that I've been writing for the last minute and a half. Don't be cruel, now. It's pretty much going to become the greatest story ever told. Enjoy.
Dargonarth Silversun the Exiled strode away from Silvermoon City on Sweeps, a mighty hawkstrider given to his family by Kael'thas Sunstrider himself. The Sunstriders and the Silversuns were always close, both great defenders of Quel'thalas throughout the ages. In times of peace and times of war, both families stood side by side, defending the great gates that protected the Sin'dorei's most sacred lands. On that dark day, Kael'thas sold his people to demons, and the Silversuns fled. Some were killed from within. Some were rounded up as traitors. Dargonarth was exiled, vowing to spill the blood of the demons who destroyed the very essence of his people.
The Silversuns were different from other blood elves, however. The matriarch of the Silversuns had been the human consort to the great dragon Knaakastrasz, of the proto-chromatic flight, forged as defenders of the light by Kris'ti the naaru, as champions of good. As Silvermoon descended into the horizon, Dargonarth's half-dragon, half-naaru, demon-infused (but really good, promise) blood ran through his veins. Vengeance would be his, and his family's honor restored.
If you read through those horrid two paragraphs, I salute you. There is no way that reading through the sordid tale of Dargonarth Silversun was harder than writing it. Dargonarth's story raises some pretty interesting questions, though. First off, the character does not exist in World of Warcraft, or the expanded universe, or any of the other games in the Warcraft series. Dargonarth is a figment of a very gifted and talented imagination. Second, is it even fair to expand on someone's work?
Copyrighted works exist alongside so-called "public domain" works. Simply put, works are considered in the public domain if they have no copyright status or laws that govern them. Shakespeare's plays, for example, have no copyright associated with them, since Shakespeare is long, long dead. World of Warcraft and the characters that exist in the fiction, however, are very much protected by copyright laws. One day, sure, Thrall and company will be in the public domain. Until then, there are rules governing the use of these characters.
Fair is fair
Fan fiction is one of those things that exist in a sort of nebulous world of "maybe" under the copyright laws of the United States. The Organization for Transformative Works (OTW) has been fighting the good fight for fan fiction for a while now, taking the position that fan fiction is a transformative work, i.e., the author of the fan fiction has added something new in an experience and mindset viewpoint, not actual cannon, to the original work under the fair use exception.
Money, money, money
There's a four-part test that courts use to decide if something is covered under the fair use exception, but as most things in the legal world are concerned, it mostly comes down to the first factor: profit. Arguably the most weighted question is whether the work was being created to garner some profit off of someone's characters, settings, etc. Let's look at two different fan fiction authors.
First, we've got Jimmy. Jimmy loves him some Warcraft, so he pens an artistic tale of love and redemption for his favorite character in the game, "Silvermoon" Harry. "Silvermoon" Harry's story involves the band of pirates he hangs with out at Scalawag Point, and the back-and-forth, romantic, cat-and-mouse relationship he has with his dashing "blood elf" mistress, probably instrumental in Yogg-Saron's imprisonment. Jimmy wrote this wonderful story on his laptop, printed out a few copies and handed them out to his friends. No profit, no problem. Does Blizzard really care enough to sue little Jimmy for using its characters when, really, it's not hurting its brand? (Well, maybe among Jimmy's circle of friends. Or maybe it's just hurting Jimmy's reputation ...)
Second, we've got Thrall and Friends, publishers extraordinaire. These guys compile fan fiction stories into volumes and sell them at trade shows. Things become more interesting because profit is now involved. Let's say a random author writes "Thrall's Story: The Real Truth," a tell-all narrative about the life and times of Thrall included in a compilation. An original character is created to be his buddy in this Kerouac-esque movement piece set in Hillsbrad. The book sells for cash. The profits of this book can be directly linked to the inclusion of a copyrighted character. Further, one could argue that this book's audience now sees this copyrighted character in a canonical new light, hurting Blizzard's brand.
Take the profit motive to the next level. A site like Fanfiction.net, for instance, is ad-supported through Google's ad programs. This repository of all types of fan fiction includes copyrighted characters and stories for which no authors or companies have given permission for their characters' use, but the site still makes money. Fanfiction.net has a copyright policy akin to the Digital Millenium Copyright Act's "takedown" notice, which allows copyright holders to ask for the infringing works to be taken down. You've seen it in action before -- YouTube regularly pulls down copyrighted material at the request of the copyright holders.
So what are some guidelines for safe fan fiction production? Here are some tips to consider when writing your own adventures of Dargonarth and his best buddy Kael'thas Sunstrider. First, don't sell it. Selling your works based on other's copyrighted characters might land you in trouble, if only because profit is a huge factor in most intellectual property cases. If you're doing it for the fun of it, keep it free and flowing, letting the world see your work. Remember, though, that this alone doesn't safeguard you. It is still a violation to use a copyrighted character, but the profit factor is a big issue.
Second, don't pretend it's yours. One of the worst things you can do with someone else's copyrighted material is pretend that it's yours. It's not. We know it's not. You're not fooling anyone -- unless you are fooling people, which lands you with a hefty fine and a whole bunch of legal bills. Pay deference to the characters you include in your own works, but don't pretend that they are yours.
Fan fiction has been both lauded and trampled on in the publishing community for some time. Notably, J.K. Rowling of Harry Potter fame has come out saying she was flattered by people creating in her universe. Naomi Novak, author of the Temeraire series of novels, also believes fan fiction has a place online, even a crucial nature. Other authors believe that fan fiction is damaging to their brands. Representation does exist on both sides of the debate.
By no means is this a comprehensive discussion of the legality of fan fiction, mind you. We're talking about the grand scheme -- the big issues, just asking some questions. Broad strokes with a broad brush. Take the discussion for what it's worth -- a quick look at some of the odder aspects of the stories you write. Because, one day, you're going to create something absolutely amazing and you'll want to protect it. And you'll want to sell it.
This column is for entertainment only. I hope you laughed at least once, right? Are you not entertained? If you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wow.com.Filed under: Analysis / Opinion, The Lawbringer
Reader Comments (Page 1 of 3)
reswab Sep 17th 2010 6:09PM
Use of passive voice in Fan fiction makes me cry.
Rakah Sep 18th 2010 5:13AM
As long as Fan fiction is clearly marked as such i don't see a huge deal. It's as if everyone is stupid (as much as you might believe otherwise).
Dreyja Sep 17th 2010 6:19PM
The whole thing was demonstratively hilarious but THIS made me LOL: "Knaakastrasz, of the proto-chromatic flight," - snerk! I can think of a more fitting name of tribute than Knaakastrasz. X-)
Anathemys Sep 17th 2010 6:22PM
I just noticed that, nice!
Just putting it out there, great article; horrible fan-fic. The fan-fic was just about as bad as the article was good, which is saying a lot. 'Cause, no offense, that fan-fic was TERRIBLY AWFUL. Good job!
traptinacivicsi Sep 17th 2010 6:25PM
I heard hating on Knaak was the cool thing these days.
Christie Golden is so much better... /sarcasm off
Dreyja Sep 17th 2010 7:13PM
Well I think she is actually. :D But, obviously I formed my opinion based on other people's opinions... /sarcasm off. X-p
Amaxe Sep 17th 2010 10:04PM
I haven't read Knaak yet, but I have read DiCandido's "Cycle of Hatred" which was the worst WoW novel I ever saw.
If Knaak is worse than that, it seems we're talking Vogon poetry bad...
Arrowsmith Sep 17th 2010 6:27PM
Dargonarth?!
That little @#$% has been terrorizing my stable for weeks!! Oh, and now we're singing his praises?! Well let me tell you something, buddy, if I ever manage to see you through your leet stealthing skills I'm gonna take my skinning knife to ya, YOU HEAR ME?!
Signed,
a disgruntled, insignificant Dwarf Hunter
Throck Sep 17th 2010 10:02PM
"But as Silvermoon vanished under the horizon, it soon became clear that vengeance would never come. A disgruntled, insignificant dwarf hunter jumped out of the shadows with a skinning knife and quickly dispatched Dargonarth with a slice from ear to ear. The assassin muttered something about stables as he calmly strolled away from the fresh--and forever impossible to rez in all timelines--corpse. The End."
And here's the prologue:
"Since before birth, Dargonarth Silversun had been in a coma. He was even exiled while in a coma. Right after he was placed on Sweeps, he woke up, made a vengeful vow, and started striding away from Silvermoon City."
I'd like to thank my co-authors Mathew McCurley and Arrowsmith for the opportunity to tidy up Dargonarth's compelling and tragically limited life story.
Drakkenfyre Sep 17th 2010 6:37PM
Some companies will flat-out come after you for posting fanfiction.
Awhile back, Lucasarts was fine with fanfiction. Then they started going after fansites. People started getting ceast and desist letters. But sometimes it won't get you one. It seems to be going back and forth. Maybe Lucas only likes some fanfiction? If you write something unflattened you will be guaranteed a letter. He's even banned some of the offical EU (that's expanded universe, not European Union) writers from certain things.
This is oddly in contrast to Japan, where people will draw entire mangas and doujins using other people's copyrighted characters, and the original companies generally don't care. Alot of these doujins are porn, and it's still looked upon as fine. In fact many of the famous Japanese artists got their start doing exactly this. Where if in America this was done, the original company would be on them in a heartbeat.
And in an unrelated note, I was not amused when one of my YouTube videos got a copyright claim by Sony because one of their songs was playing in the BACKGROUND outside at a restaurant. It's still viewable, but blocked in some countries.
Juvorg Sep 17th 2010 6:45PM
Is there anyway to create fan fiction with the ability to legally profit from it if the opportunity arises?
Drakkenfyre Sep 17th 2010 6:55PM
That would be no.
Unless you worked out a deal with the original company, and got a license to do so, profitting from their copyright breaks copyright, and will have the company coming down on you hard. That's what this entire article is about.
If you change enuf of the elements so it's no longer 100% the original copyright, you can get around it. LFG, for example, the comic, is based on the game but not directly on the game. Reading the comic you see Blood Elves, Trolls, Gnomes, Humans, Undead, Dwarves, Tauren, and the familiar classes. But at no point do you see any copyrighted names or places pop up. "Dwarves" and "Gnomes" are pretty generic, and Blizzard can't copyright those. You don't see "Blood Elves" you see "Elves", and you don't see Ironforge, or Ogrimmar, or anything. The universe is unique from the game. And the creator profits from it in the form of ads and merchandise.
Another case with webcomics that's interesting is Shakes and Figet. Which is directly based on the game. Blizzard had no problem with these guys. But they sold the site and comic to another company which did comics and books. These guys (the new company) claimed copyright over EVERYTHING in the strip. And had plans to publish a game based on it. Blizzard said "no way", and stepped in and legally stopped them. The company had the balls to claim they had copyright over everything in the strip, when the strip itself was based on the game. As a result, they had to remove all references to the game.
Hierafel Sep 17th 2010 6:59PM
It depends...
On your country/state´s copyright laws
On the country/state´s copyright laws that where involved in the copyright of the original work
On whether the owner of the original work actually cares or not about you profiting from your fanfic
On whenever agreement you could reach with the owner of the original work
Claire Sep 17th 2010 9:23PM
The answer to this is yes, actually. You can write fanfiction for profit if you base your writing on something in the public domain. That's what John Updike did when he wrote "Gertrude and Claudius," which is basically a novella-length Hamlet fanfic.
You can also try to convince a judge that your work is transformative and culturally relevant enough. "Lo's Diary" and "The Wind Done Gone" took this route.
Dankie Sep 17th 2010 10:02PM
There was a great harry potter fanfiction author known as "Cassie Claire". She wrote "the Draco Trilogy", which was love by all. She decided to plagiarize her own work, remove 'the draco trilogy' from all popular websites, and turn it into her own novels: 'City of bones', 'City of ashes' and 'city of glass'. Large portions of the novels are lifted from her own harry potter fanfiction, which - as it has been removed from most places except harddrives and portions of archive.org - has her in a bad way with harry potter fanfiction fans, but with the works unavailable, she has been able to profit from it.. and win awards.
So...
1. Write fanfiction
2. Become well loved.
3. Bright idea!
4. ............
5. Remove works from internet.
6. Profit!
Devilution Sep 17th 2010 7:13PM
Robert Jordan is one author that has said, hands down fan fiction is not okay. There is the issue of further works by the owner of the IP or in Robert Jordan's case; his wife and Brandon Sanderson. What if someone happens to come up with a story about the Age of Legends that is very close to the concepts stated in his earlier works? Then his wife and Brandon use his notes to come out with an official version that is similar to the fan fiction story? Now you are in a quagmire.
Jack Draven Sep 17th 2010 10:30PM
All of the comments that I ever read that Jordan made in regard to fan fiction was that he didn't want anyone using his characters, but that was it. So no love story between Rand and Egwene, but if you want to write about some random person and their adventures in Randland then you are okay, as long as you didn't lift any of his characters.
MusedMoose Sep 17th 2010 7:48PM
"The Organization for Transformative Works (OTW) has been fighting the good fight for fan fiction for a while now, taking the position that fan fiction is a transformative work, i.e., the author of the fan fiction has added something new to the original work, under the fair use exception."
As a writer of both original fiction and fanfic, I take some serious issue with the OTW's position.
Fanfic does not, in any way, add to the original work. While they're obviously related in a derived sort of way, they're separate. No matter what anyone else writes, the original work remains as it is, and only the owner(s) of the work can change that. While many people may enjoy reading fanfic, perhaps even more than the original work, fanfic does not change that original work or make it more than it was before. The original work would be the same no matter who else wrote about it, or if no one else wrote about it. Only the work's creator(s) can add something and make it part of that work.
In other words, thousands of Thrall/Jaina fics do not make them a couple in canon, and no effort on my part will make it so the world my favorite anime series takes place in was the creation of a being from one of Neil Gaiman's works.
(Note that I'm not talking about things where more than one person writes canon, like the Star Wars extended universe or even WarCraft's own books. I'm only talking about published canon vs. fanfic.)
Xantenise Sep 17th 2010 8:39PM
They don't add to the original work itself - but I'd argue it adds to the reader's experience of the original work. Fanfic has often inspired me to take a different look to the canon and see things I didn't notice before, whether it's my imagination or not.
I do see your point though, and agree. (Which is what personal canon's for! ;) )
MusedMoose Sep 17th 2010 9:57PM
@ Xantenise:
I generally agree. I'm reading an alternate-universe (AU) fanfic right now that takes things in a radically different direction from the canon series and yet keeps the characters in character and the developments believable, and it's just plain awesome. It is interesting to see how things might have been different.
However, I really, really don't like the concept of "personal canon", as to me it always sounds too much like someone saying "I didn't like what happened, so I'm going to say it didn't happen." No matter how much a fan likes something, that doesn't give them the right to say what did or didn't happen; that right's reserved for the canon's creator(s). I didn't like some of the stuff that happened in the latest novel in my current favorite series, but there's no chance I'll try to say it didn't happen and claim it as 'personal canon'. *eyeroll*
(If that's not what you meant by "personal canon", then I apologize for misinterpreting. ^_^)