Fan Fiction and The Law

Let me say first off, I am not a lawyer, nor do I have any training or education in the law. This page is meant as a very rough guide to the very grey area of the law that concerns fan fiction and the writing of it. It is what I have learnt and garnered from reading books, websites and newspapers, and may not be 100% accurate or up to date.

That said...

There are two areas of controversy and concern regarding fan fiction and its authors. The first is plagurism and copywrite and the second is defamation of character and libel.

Plagurism

This is not so prominant in Beatles fan fiction, but is in many other large fandoms of the moment, such as Star Trek, Harry Potter, and those of flims, TV shows and other books.

The Wikipedia says;

According to current U.S. copyright, copyright owners have the right to control or restrict the publishing of "derivative works" based on their material, though they do not receive ownership of those works. The owner of the original work (film, TV show, etc.) therefore may have some legal power over fan fiction, though the laws as written do not address the issue directly.

Writers of this type of fan fiction do have some protection though, that is the right to parody. This also extends to RP fan fiction, see below.

Most fandoms, though, tolerate fan fiction, as it is mainly non-profit making, and the advantages to the fandom outweigh any disadvantages. Some fandoms such as Star Trek and especially Harry Potter actively enourage it. Paramount film studios also encourage fan fiction, allowing several anthologies and even fan films to be produced.

J. K. Rowling, author of the Harry Potter books, says she is a reader and fan of fan fiction of all types and often reads Harry Potter stories (something for the HP authors to ponder when they post thier stories!) although she also says the rise of adult HP fiction concerns her a little. Douglas Adams, author of the Hitchhikers Guide to the Galaxy series was also reported to be a fan fiction reader.

However, not everyone enjoys this kind of flattery (and thats what it is, at the end of the day, isn't it?) Lucasfilms are famous for issuing cease and desists - a legal notice to stop what you are doing - against Star Wars fan fiction and fansites, and have even sued some. A little petty considering how rich they are in comparison to those they are suing.

Another author that fiercly battles against fan fiction is Anne Rice, author of the Vampire Chronicles. Perhaps thats one reason why that fandom is not as large as it could be.

To end on a posative note though, some fan fiction writers have managed to forge careers as such, like some lucky writers of Dr Who fan fiction who have been recruited by the BBC in the past. Unfortunatly, don't expect a letter from Apple tomorrow. There are some published Beatles fan fiction authors around, but I'm yet to meet one who can make a living from it. One day perhaps...

Libel

There are two areas of controversy surrounding libel and fan fiction - these being the actual legality of it and the moral debate.

Firstly, the morality. Personnally, I don't have a problem with writing fiction about actual people, dead or alive. However, I am not sure how I would feel if people wrote fictional account about me. Those are the two side of the debate.

Beatles fan fiction is affectionate however. I am yet to find a story that I think would offend John, Paul, George, Ringo or thier families, as by its nature, fan fiction is written by fans who adore thier subject. Here, too, in the majority of fan fiction, it is not the 'actual' person who is the subject, but rather thier public persona. It is Beatle John, Beatle Paul, Beatle George and Beatle Ringo who are the characters of the story, and none than the actual members of the group know the distinction between the created image and reality, better.

When we get to slash, it might be fair to say this gets a bit more sticky(!) None of the Beatles were homosexual, but there is probably just as many stories out there that slash the Beatles that don't.

To date, I have found only one instance of legal action being brought against an RP fan fiction site. This was against the site fandomination.net in March 2003. The American baseball team, The Atlanta Braves issued a cease and desist letter on behalf of one of thier players. Although I have no further information at the moment, I believe the story(ies) in question were slash one, and must have offended thier real-life character conterparts.

Fandomination does still list RP fan fiction, and slash fan fiction, so they were obviously undetered by that letter.

Slash, in my opinion, is not so far away from het fan fiction. The majority of it, too, is written affectionately, and as het fan fic does, it is about the exploration of relationships and emotion. Again, in slash writers are using the public persona and image projected by the person or people in question, and seeming as this was created by the subject, they can't really complain when people use and discuss it.

As a note of interest, many people include disclaimers in thier stories or sites that will read something like 'No harm intended, everything is fictional.' From reading some peoples strongly worded disclaimers I would bet that they have received flaming emails or comments about thier stories, from people who obviously don't understand the concept of fan fiction. Thats a shame, but should any writers out there receive any comments along these lines, please try not to be too offeneded or disheartened.

I have seen people take down thier stories over problems like this, which means for all the possibly hundreds of people who read and enjoyed thier fiction, it takes only one spoilsport who doesn't understand. Any authors in reciept of harrassment like this is welcome to contact me and I will explain the ins and outs at length to them for you. Also, people are welcome to have thier stories hosted here, and I will act as an umberella should any cease and desist letters head thier way.

Discliamers, although stating the intentions of the writers, do not have any legal weight and do not protect you from prosecution. I haven't heard of Apple of anybody closing down any fan fiction websites, yet. They have closed some fansites, over copywrite issues, but I think that is poor on thier part when the fansites and not making profit, and are keeping the fandom alive, ensuring the money from the music and the merchandise keeps rolling in.

We do have some legal protection, however. As mentioned earlier we have the right to parody, which was assertained by the case of Hustler Magazine et al Vs. Jerry Falwell in 1988. There Larry Flynt was sued over a parody published in his magazine by Falwell. Flynt won, with the court ruling that parodies were completly legal under the United State Constitution, stating that public figures must accept that they may be parodied, made fun of or sent up, by the public.

You also have the write to freedom of speech, as highly interpretable as that may be, and that is why the Freedom of Speech on the internet banner is flying on the homepage of this website.

As for the morality of writing about real people, I would argue it is far more immoral to plagurise the fictional creation of other writers, as that is technically stealing (okay, borrowing) and could be argued that - especially in the case of published fan fiction - you may be taking the profit and credit away from the rightful owner. However, before we get carried away, I enjoy and support both types of fan fiction. It is just what it sounds like - FAN fiction - and is never written with the intention to harm a fandom, but rather extend and enjoy it on new levels. Long live fan fiction!