#more generally i get that fanworks are derivative by nature and that's the point but there's similar and there's The Same.

[utilitycaster]

As a frequent "ugh, fanon," person it's not that I don't like non-canonical character designs or interpretations as a concept. I love unique and creative ideas about fictional characters that are informed by canon but diverge from it in interesting ways that build upon the original vision! I almost never see this in fanon.

[einsatzzz]

• What plot points would change due to the inclusion of your character in canon?

• What headcanons/theories do you believe fandom would invent about your character?

• What feelings does your character most often instill in their fans? Affection? A desire to protect? Open lust? A love/hate dynamic? Why do you think their fans feel this way?

• How does fandom characterize/mischaracterize your characters ship in fanworks?

• What is the quote between your character and their love interest/whoever they might be shipped with that their fans would latch onto?

I know this is a lot, but for Kana  & or Kurumi,   😭

Thank you for sending this Jojo!!! I don't mind being sent a lot of OC asks, don't worry hehehe (I can just get very slow jdsbfhsdvfhsdf like right now with this one ueueueue) I love yapping about my bebeghurls the most 🫶🥰💖✨😆🤣

What plot points would change due to the inclusion of your character in canon?

I already mentioned some here but here's more for you 🫶🫶🫶

With Kurumi's inclusion:

Tsuna gets to have another friend and support added to his circle 🥹✨(well maybe I should say two friends, because Kurumi usually has Yui in tow with her)

Lambo gets to have another onee-chan too! Their dynamic is very funny and cute.

She'll often be seen as a trio with Kyoko and Haru. I guess the perceived love triangle(?) with Tsuna at the center may upgrade to a some kind of love square lmao

With Kana's inclusion:

Tsuna, Lambo and Mukuro get to have another person beefing against them. Thankfully, Tsuna and Lambo are both under Kurumi's divine protection.

Hibari and Gokudera get to have another person they can beef against. There will be a new committee as well.

Yamamoto successfully wins over and befriends another swordsman who will train him. It's a W that he deserves.

What headcanons/theories do you believe fandom would invent about your character?

Kurumi:

Because she's a "good" character, I feel like it's only natural that there will be people with headcanons or theories that depict her as the opposite.

Another reasonable fandom theory I can think of is that her character will develop into someone similar to Rinko (her 1st Generation equivalent).

Kana:

There will be theories that Kana will either go through character development (into a better person) or character regression (into a worse person) as we progress through the story. There will also be arguments that it's a death flag if she goes and develops into a better person.

There will be people making headcanons that since Kurumi is shit at cooking, then maybe the opposite is true for Kana.

KanaRumi: I have a theory for the shipping fandom in general as well, derived from an amusing thing I read from a shoujo-series fandom I can't remember right now. They'll be forced to romantically ship Kana with the nearest character they can personally ship her with to fight off the incest shippers 🤣😭🤣😭 jdsfbhsdvfsh Sorry, both Sou and I have been in the Gen/shin fandom (and other various ones b4 that), and we both agree that if KHRe had a fandom, there would be this small subset of romantic shippers for the twins 🗿🗿🗿🗿

What feelings does your character most often instill in their fans? Affection? A desire to protect? Open lust? A love/hate dynamic? Why do you think their fans feel this way?

Kurumi: For Kurumi, I feel like there will be a lot of people who will feel affection for her. This is because I think a good amount of people may even see her as someone relatable, because of her efforts and struggles with expressing herself. Another would be a desire to protect her, even if they know that Kurumi is strong.

Kana: I can see a love/hate dynamic for this one. I feel like she's the type of character who will both have dedicated fans (who may woobify her too much) and dedicated haters (who may vilify her too much). There will be a lot of discourse related to her. TsunaRumi shippers might feel frustrated with her for always trying to cockblock their ship, while TsunaRumi antis celebrate her as their champion.

How does fandom characterize/mischaracterize your characters ship in fanworks?

Kurumi: In terms of ships, I feel like there would be depictions of her having this intense & bitter rivalry vs the other characters Tsuna is shipped with. But the truth is that her biggest enemy & rival is own self and personal struggles sjdvfhsdvg

Kana: I already answered for her here!

With the modern fandom environment right now, I feel like there would be way less of those "hating on a fem character because they're in the way of their ship" type of problem. Especially since the twins' genders are pretty vague (esp Kana with masc clothes) and they run the risk of being one of those people that would often be listed in DNIs shfshvfgsdvf I feel like they're more likely to just treat the "third-wheel" fem character as an accessory now, from what I've observed.

What is the quote between your character and their love interest/whoever they might be shipped with that their fans would latch onto?

I just realized the question didn't specify whether it's "latching onto (happily and excitedly, we're so back!)" or "latching onto (despairingly, it's joever...)" or "latching onto (in copium/hopium)". Suddenly, I have a few more lines I can think of on the spot (not a guarantee it will be in the story but still--- hehehe)

Kurumi: "I'm sorry...You're so bright sometimes, I just couldn't face you"

Kana: I already answered here! But another one I can think of is: "It's almost impressive...to be able to follow me even to this place. But this really is the end of the line."

[impostoradult]

And I agree we should talk about. I invited people to explain their POV to me. And part of the reason I started this discourse is precisely because I don't think we're having enough PRODUCTIVE discussion about this. A lot of the AI discussions happening right now are based on:

A) Pure misunderstandings of how AI language models actually work

B) Misunderstandings about how human creativity works (and has worked since the dawn of time; humans have ALWAYS heavily cribbed and imitated other artistic work in their artistic work)

C) General anxieties about how capitalism is going to make everything worse with this, which I recognize is a possibility, but I don't think is a foregone conclusion.

D) Human ego preservation that is about wanting to maintain the idea that we are fundamentally ~special~ in some ineffable way that machines could never POSSIBLY capture or imitate. And I think that's just us being anthropocentric and also unconsciously casting ourselves in the role of Oedipus's father.

*

And so, to address some of your other points in more depth - if someone writing fic doesn't have an original take (and isn't even necessarily trying to have an original take) we still don't consider that a problem in fandom.

In fact, often times we value stories BECAUSE they so closely imitate things we've consumed before. We JOKE in fandom about the fact that we'll read 500 stories with the exact same premise that all end up the exact same way. We often overtly VALUE the highly imitative nature of storytelling (both in fandom and in wider world).

Now, I get that it is complicated how AI generated works might impact fandom dynamics specifically with regard to things like flooding tags, or as fodder in ship wars or whatever. And I agree that's worth thinking through because it COULD have negative impacts. I understand that. I'm not naive.

But part of what I was reacting to in my OP was specifically the accusation that AIs ~*~steal~*~ preexisting work. Which isn't strictly true and I was also making the point that HUMANS steal each other's artistic work all the time (in the sense that most human creativity is highly derivative of the things that came before it)

That's how genres and tropes WORK. They are storytelling elements that have been heavily cribbed and reproduced. And I feel like fandom used to be VERY conscious of that fact, and is now, all of sudden, acting like it is news to them how stories work.

And it just makes me feel like I'm Spike in that one episode of Buffy:

And the AIs ARE capable of creating original enough work that their outputs could definitely pass as another run-of-the-mill coffee shop AU (or whatever) without meeting any conventional definition of plagiarism. They can make 'original' versions of pre-existing story concepts. They aren't just copy-pasting. That's just a pure misunderstanding of what is happening.

Now, as for it being sanitized, yes, it's true the AIs in general are programmed not to do anything risque, which just means humans will always have a role in creating fanworks because if the AIs need to always be kid friendly and non-offensive, they'll never meet the demand for risque stuff, which has always been part of fan culture.

Which frankly should be GOOD NEWS to the people who are worried about AIs displacing fan creativity (which I think is nonsense anyway; just because AIs are producing creative content that would never stop people from continuing to produce creative content as well because creativity isn't a zero-sum game and I don't know why so many people are suddenly acting like it is)

That's the weirdest part of this entire conversation - people keep talking like its a zero-sum game. Like EITHER the AIs write creatively OR humans write creatively, but never both at the same time. And I'm like, why are people treating it like it's zero-sum? It isn't. At all. Particularly not in fandom where there has never been any formalized gatekeeping and the 'market' has always been completely unmanaged and at the whim of anyone who decides to participate.

Okay can someone actually give me an answer to this question....

Why, if 10,000 other fans 'steal' your idea for a coffee shop AU and use it in their almost identical coffee shop AU, that's totally okay and just how fanculture works.

But if the AI spits out a coffee shop romance that reads like a traditional coffee shop AU, that's crossing a line?

Why, if a bunch of other fans steal your idea, is that just the process of human creativity at work, but if a machine generates something similar, that's a bridge too far?

I literally don't get how the one is different from the other (and frankly if either was the outrage, I'd think it be the people who are consciously deciding to rip you off rather than the machine that is just reproducing large scale linguistic patterns and not singling your work out because it literally CANNOT single out pieces of work to rip off individually because that's not how AIs work)

[luckgods]

Why all the white guys in whump?

I got Inspired by a post asking that question, and here we are. Warning: long post ahead.

I think it’s due to a combination of factors, as things frequently are.

The preference for / prevalence of white male characters in fandom is well-known and has been examined pretty thoroughly by people already.

What’s worth noting for discussing this tendency in whump in particular is that the ‘whump fandom’ itself is not a ‘fandom’ in the traditional sense of being made of fans of one single source narrative (or source setting, like a particular comics fandom, or the Star Wars extended universe) with pre-existing characters. Although subsets of traditional fandoms certainly exist within the larger whump fandom, a lot of whump is based on original, ‘fan’-created characters.

So, given the tendency of ‘traditional’ fandoms to create stories disproportionately centered on white male characters due to the source material itself being centered on white male characters (and giving more narrative weight to them, characterizing them better, etc), if we say hypothetically that the whump fandom is split say 50/50 between ‘traditional’ fandom works and original whump works, you’d expect to see a higher number of works focused on white men than the demographics of the ‘traditional’ fandom’s source work would predict, but not as extreme of a divergence between the source material & the fanworks as the one you’d see if whump fandom were 100% based on popular media.

However, that doesn’t quite seem to be the case. Whump stories and art remain focused on overwhelmingly male and frequently white characters, which means that the tendency of the fandom to create stories disproportionately centered on white male characters cannot be ONLY explained by the source material itself being centered on white male characters (and giving more narrative weight to them, characterizing them better, etc).

And, having established the fact that whump writers & artists presumably have MORE control over the design of their characters than writers & artists in ‘traditional’ fandoms, we have to wonder why the proportions remain biased towards men, & white men in particular.

—

The race thing is pretty simple in my opinion. Mostly, it’s just another extension of the fanbase’s tendency to reflect the (predominantly US-American, on tumblr) culture it exists in, which means that, in a white-centric culture, people make artworks featuring white people.

There’s also the issue of artists being hesitant to write works that dwell heavily on violence towards people of color due to the (US-American) history of people of color being violently mistreated. I’ve actually seen a couple of posts arguing that white people SHOULDN’T write whump of nonwhite characters (particularly Black characters) because of the history of actual violence against Black bodies being used as entertainment, which means that fictional violence against Black people, written by white people, for a (presumed) white audience, still feels exploitative and demeaning.

I'm not going to get into all my thoughts on this discussion here but suffice to say that there's probably an impact on the demographics of whump works from authors of color who simply... don't want to see violence against people of color, even non-explicitly-racialized violence, and then another impact from white authors who choose not to write non-white characters either due to the reasons stated above, or simply due to their personal discomfort with how to go about writing non-white characters in a genre that is heavily focused on interpersonal violence.

Interestingly enough, there’s also a decent proportion of Japanese manga & anime being used as source material for whump, and manga-styled original works being created. The particular relationship between US-American and Japanese pop culture could take up a whole essay just by itself so I’ll just say, there’s a long history of US-Japanese cultural exchange which means that this tendency is also not all that surprising.

—

GENDER though. If someone had the time and the energy they could make a fucking CAREER out of examining gender in whump, gender dynamics in whump, and why there seems to be a fandom-wide preference for male whumpees that cannot be fully explained by the emphasis on male characters in the source text.

I have several different theories about factors which impact gender preference in whump, and anyone who has other theories (or disagrees with mine) is free to jump in and add on.

THEORY 1: AUTHOR GENDER AND PERSONAL EXPERIENCE.
 Fandom in general is predominantly female, although these days it might be more accurate to say that fandom is predominantly composed of cis women and trans people of all genders. However, pretty much everyone who isn't a cis man has had to contend with the specter of gendered violence in their real personal life. Thus, if we posit whump (and fandom more generally) as a sort of escapist setup, it's not hard to see why whump authors & artists might willfully eschew writing female whumpees (especially in the case of inflicted whump), because (as in the discussion of people of color in whump above), even violence towards women that is explicitly non-gender-based may still hit too close to home for people whose lives have been saturated with the awareness of gender-based violence.

THEORY 2: SICK OF SEXY SUFFERING.
 Something of an addendum to theory 1, it's worth noting that depictions of female suffering in popular media are extremely gendered (in that they specifically reflect real-life gender-based violence, and that said real-life violence is almost exclusively referenced in relation to female characters) and frequently sexualized as well. There's only so many times you can see female characters having their clothes Strategically Ripped while they're held captive, being sexually menaced (overtly or implicitly) to demonstrate How Evil the villain is, or just getting outright sexually assaulted for the Drama of it all before it gets exhausting, especially when the narratives typically either brush any consequences under the rug, or dwell on them in a way that feels more voyeuristic and gratuitous than realistic and meaningful. All this may result in authors who, given the chance to write their own depictions of suffering, may decide simply to remove the possibility of gendered violence by removing the female gender.

THEORY 3: AUTHOR ATTRACTION. 
I'll admit that this one is more a matter of conjecture, as I haven't seen any good demographic breakdowns of attraction in general fandom or whump fandom. That said, my own experience talking to fellow whump fans does indicate that attraction to the characters (whether whumpers, or whumpees) is part of the draw of whump for some people. This one partially ties into theory 1 as well, in that people who are attracted to multiple genders may not derive the same enjoyment out of seeing a female character in a whumpy situation as they might seeing a male character in that situation, simply because of the experience of gendered violence in their lives.

THEORY 4: ACCEPTABLE TARGETS.
 The female history of fandom means that there's been a lot more discussion of the impacts of depicting pain & suffering (especially female suffering) for personal amusement. Thus, in some ways, you could say that there is a mild taboo on putting female characters through suffering if you can't "justify" it as meaningful to the narrative, not just titillating, which whump fandom rarely tries or requires anyone to do. This fan-cultural 'rule' may impact whump writers' and artists' decisions in choosing the gender of their characters.

THEORY 5: AN ALTERNATIVE TO MAINSTREAM MASCULINITY.
 Whump fandom may like whumping men because by and large, mainstream/pop culture doesn't let men be vulnerable, doesn't let them cry, doesn't let them have long-term health issues due to constantly getting beat up even when they really SHOULD, doesn't let them have mental health issues period. Female characters, as discussed in theory 2, get to ("get to") go through suffering and be affected by it (however poorly written those effects are), but typically, male characters' suffering is treated as a temporary problem, minimized, and sublimated into anger if at all possible. (For an example, see: every scene in a movie where something terrible happens and the male lead character screams instead of crying). So, as nature abhors a vacuum, whump fandom "over-produces" whump of men so as to fill in that gap in content.

THEORY 6: AMPLIFIED BIAS.
 While it's true that whump fandom doesn't have a source text, it's also true that whump fans frequently find their way into the fandom via other 'traditional' fandoms, and continue participating in 'traditional' fandoms as part of their whump fandom activity. Bias begets bias; fandom as a whole has a massive problem with focusing on white male characters, and fans who are used to the bias towards certain types of characters in derivative works absolutely reproduce that bias in their own original whump works.

—

I honestly think that there is greater bias in the whump fandom than anyone would like to admit. Maybe I'm wrong, but it seems as though whump fans avoid introspection and discussion of the issue by bringing up the points I talked about in my previous theories, particularly discomfort with depictions of female suffering for amusement.

However, I think that, as artists, we owe it to ourselves and one another to engage in at least a small amount of self-interrogation over our preferences, and see what unconscious or unacknowledged biases we possess. It's a little absurd to argue that depictions of women as whumpees are universally too distressing to even discuss when a male character in the exact same position would be fine and even gratifying to the person making that argument; while obviously, people have a right to their own boundaries, those boundaries should not be used to shut down discussion of any topics, even sensitive ones.

Furthermore, engaging in personal reflection allows artists to make more deliberate (and meaningful) art. For people whose goal is simply to have fun, that may not seem all that appealing, but having greater understanding of one's own preferences can be very helpful towards deciding what works to create, what to focus on when creating, and what works to seek out.

—

GENDER ADDENDUM: NONBINARY CHARACTERS, NONBINARY AUTHORS. 
Of course, this whole discussion so far has been exclusively based on a male-female binary, which is reductive. (I will note, though, that many binary people do effectively sort all nonbinary people they know of into 'female-aligned' and 'male-aligned' categories and then proceed to treat the nonbinary people and characters they have categorized a 'female-aligned' the same way as they treat people & characters who are actually female, and ditto for 'male-aligned'. That tendency is very frustrating for me, as a nonbinary person whose gender has NOTHING to do with any part of the binary, and reveals that even 'progressive' fandom culture has quite a ways to go in its understanding of gender.)

Anyways, nonbinary characters in whump are still VERY rare and typically written by nonbinary authors. (I have no clue whether nonbinary whump fans have, as a demographic group, different gender preferences than binary fans, but I'd be interested in seeing that data.)

As noted above with female characters, it's similarly difficult to have a discussion about representation and treatment of nonbinary characters in whump fandom, and frankly in fandom in general. Frequently, people regard attempts to open discussions on difficult topics as a call for conflict. This defensive stance once again reveals the distaste for requests of meaningful self-examination that is so frequent in fandom spaces, and online more generally.

—

TL;DR: Whump is not immune to the same gender & racial biases that are prevalent in fandom and (US-American) culture. If you enjoy whump: ask yourself why you dislike the things you dislike— the answer may surprise you. If you create whump: ask yourself whose stories you tell, and what stories you refuse to tell— then ask yourself why.

[myvividreams]

Copyright, Creatives, and Why the Criminalization of Fan Culture Needs to Change

So. I had a couple of people on Facebook and Discord ask me about the final paper I wrote on copyright and the criminalization of fandom. Well, I got an A! And permission to share it with whoever’s interested in reading 2700 words on the love-hate relationship we creatives and fanworkers have with copyright

-

With the advent of the internet and social media, fan culture—a form of participatory culture where fans not only consume but also create content often based on existing creative works[1]—has grown phenomenally in the last two decades. For example, attendance to the San Diego Comic-Con, proclaimed by Forbes as the largest fan convention in the world, has almost tripled between 2000 and 2019. In such conventions, fans get to interact with their favorite content creators, from the people behind their favorite series to their fellow fans who create content online that they consume. In the 2019 San Diego Comic-Con alone, attendees spent around $88 million directly on events and merchandise in the convention, not counting what they spent on other costs, like transportation and housing for the duration of the con! That is a lot of money going around publicly for what is essentially a black-market hub. And these conventions, like many other aspects of fan culture, are as much hubs of illegal activity as they are incubators of creativity. This needs to change.

In the context of this essay, I will be using the term fan culture to describe the lived experience of fans both casual and serious. This is to differentiate it from the term fandom—which I will be using to refers to, collectively, all the ideas, interactions, characters, fans, and derivative/transformative works associated with a particular creative work. Fandom will be used in this discussion to describe the virtual place within which fans interact, create content derivative of, and negotiate the meanings surrounding the originating work.

I choose to discuss fandom in the context of place rather than community because places, as defined by Pelletier-Gagnon and Diniz, are “site[s] of meaning where agents create, efface, and accumulate symbols”, which are delineated by contours rather than characteristics and can exist within images, sounds, and videos as well as locations.[2] As far as fandom is concerned, a fandom will continue to exist though fans may enter and leave at will. Fandoms are countoured with recognizable characters and settings, and the fans within them create new meanings and interpretations of the originating work—while keeping within said contours—through posts, discussions, and derivative creative works like fan art and fan fiction. Often times, fandoms aren’t occupied by any single community, they’re occupied by several who each compete over interpretations of characters and character interactions. Sometimes, such communities can even develop around derivative works—enough so that the derivative work becomes the anchor and contour of another fandom![3]

As rich and diverse fan culture within fandoms can be, however, that does not detract that many activities prominent within fan culture go against copyright law. As it exists right now, much of copyright law is obsessed with copies.[4] It (ideally) grants creatives a set of exclusive rights to their original creations as incentives to produce more work, giving copyright owners (not always creatives!) the right to control the reproduction and distribution of copies of their work as well as the right to prepare derivative works based on said copyright work.[5] You can imagine, then, how easily creatives within fandoms can cross over the line to copyright non-compliance: they do it every single time they create fan works celebrating their love for the original work.

Fortunately, most fan works online fall under the fair use doctrine, which allows the reproduction of works for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”[6] There are four criteria works are evaluated by to qualify as fair use: the purpose of the work (commercial or non-profit?), the nature of the copyrighted work, the amount of the copyrighted work used, and the effect the such use of the work would have on the market for or the value of the work.[7] Generally speaking, fan works like fan art, fan comics, fan fiction, gif sets, animatics, and AMVs that are shared online for free fulfill at least the first and the fourth criteria for fair use, which are the criteria usually prioritized by copyright holders.

The problem arises when fan creators start monetizing their fan works—creating merchandise featuring copyrighted content, selling them online, selling them in cons, doing commissions—basically, doing anything that constitutes distributing their work for profit. Thousands of such merchandise are being sold on sites like Etsy and Redbubble or featured on their creators’ social media pages for sale, and they come in many different varieties—from art prints to enamel pins to dolls to clothing. The creators of said merchandise also fill the aptly named Artists’ Alleys in conventions to sell their products in person. Groups of creators sometimes band together to create and sell magazines—often referred to simply as zines—or even fan comics for their fandoms.[8] Of course, murkier cases also exist, like let’s play vloggers profiting off of posting their playthroughs of copyrighted videogames online or fan writers and artists earning money through their followings on Patreon.

Copyright owners’ responses to such activity have varied widely throughout the years, with differing degrees of success. Consensus as of the present seems to be to leave it alone unless the fan profiting from their derivative work is experiencing significant success or making significant sums of money from the monetization of such work. At that point, the fan would be asked to take the work off their online store or, if they’re a vlogger, take the offending video down from their channel. What constitutes as significant is often up to the copyright owner.

Historically, however, this was not always the case. In the 2000s, many copyright holders famously sent cease-and-desist letters to fan creators, specifically fan fiction authors, and made their dislike of fan fiction—or specific types of fan fiction—well known. Anne Rice, author of the then-popular novel series The Vampire Chronicles, was one of them, having posted a notice on her website in 2000 that effectively banned all fan fiction of her works online.[9] Following such, several individuals online reportedly received cease-and-desist orders and threats on their businesses unconnected to their activity as fan creators, and several commenters on a viral thread on tumblr claim that they left the Vampire Chronicles fandom entirely because of it.[10] [11]

On the other side of the scale, Marion Zimmer Bradley, author of the Darkover series, dove into the fandom surrounding her series headfirst. Although the controversial Contraband incident she is connected to took place long before the internet truly caught on, it bears sharing as it is often used as a cautionary tale for copyright owners and professional creatives against participating too actively within the fandom surrounding their original work. In the two decades after she published the first book in her Darkover series, Bradley had fostered an extremely close connection with her fans, commenting on fans’ derivative works, providing feedback, curating/editing their zines—often even adopting ideas proposed by fans or introduced by fans in their fan works as canon (true) to the Darkover universe. This all came to a head in 1992 when Bradley approached one of her fans offering money in exchange for being able to use elements from the fans’ published fan works in what was supposed to be Bradley’s next novel, Contraband. The fan disagreed, and the incident ended with cancellation of the novel and the discontinuation of Bradley’s active participation in the Darkover fandom.[12]

Both these examples have played a large part in how copyright holders’ current attitudes towards fan culture are playing out. Copyright holders tread the line between too much and too little exercise of their copy rights. Too much, and they may end up losing their fanbase. Too little, and they may lose profits and control of their public image to the more prolific members of their fandom. Fan culture, to copyright holders, also presents a largely mixed bag of feelings and viewpoints that varies from holder to holder. Each copyright holder tackles the issue differently. Some, like JK Rowling, welcome it. Some, like Anne McCaffrey, tolerate it with stipulations. And others, like George R. R. Martin, dislike it but will tolerate it as long as fans don’t send their fan fiction to them (art and other works usually fall under different considerations). Whatever their approach is, the general consensus among copyright holders seems to be that they tolerate (maybe even like) fan works as long as they aren’t sold commercially and, if said fan work is a piece of fan fiction, that work isn’t sent to them with the expectation of said author reading it and acknowledging it publicly.[13]

Note, however, that none of the current popular approaches to dealing with fan culture that I listed above includes the outright banning of fan activities. Copyright owners and creatives have learned from the examples of Anne Rice and her contemporaries in the 2000s that restricting fan culture—and taking advantage of or treating fans badly—is a good recipe for a shrinking fanbase and the non-success of their copyrighted work. They have also learned how an active fandom can rapidly propel a copyrighted work to success.

James Boyle, in his article Fencing off Ideas: Enclosure & the Disappearance of the Public Domain, posits that “a large leaky market may actually produce more revenue than a small, tightly-controlled market.”[14] With the phenomena of fandom as my example, I concur. Original works anchor and draw fandoms around themselves, but the creative outputs of fandom act as both gifts to the communities of their originating fandoms and free advertising for the originating work of said fandom. In fact, according to a report published last year by a collaboration between Fandom, Inc. and Ipsos, fan content plays a large role in driving discovery of new creative works. 59% of Explorers, the market segment that makes up half the fans in the United States, claim that fan content they encountered influence them to try new content.[15] At least part of the success experienced by popular creative works online—and on social media specifically—can be attributed to the robust participation of fans in creating, curating, and sharing derivative works both online and offline.

Because of this, fandom is often seen as a hub for developing creatives. There, amateur (and even professional!) creatives can hone their skills on existing characters and settings they already love. They can also build up a following and be cheered on, supported, and guided by their fellow fans and creatives in the fandom. Some of these creatives who got their start out of fandom even go on to create the “original content” they consume themselves! This usually happens in fandoms surrounding longer-running fictional series, such as DC Comics, Marvel Comics, and Star Wars.[16] And other creatives who have grown up within fan culture also go on to create their own original works and publish their own series. Cassandra Clare, author of multiple bestselling series (including the Mortal Instruments series), famously got her start writing fan fiction for the Harry Potter fandom in the 2000s.[17] Naomi Novik, award-winning author of the Temeraire series, admits to still writing fan fiction and actually co-founded the Organization of Transformative Works[18] in 2007![19]

None of this, however, changes the fact that much of fan culture operates by the grace of copyright holders—or that much of it is, in fact illegal due to copyright. This needs to change.

Lawrence Lessig, in Remix: How Creativity is Being Strangled by the Law and In Defense of Piracy, talks about the criminalization of Gen X and their culture of piracy through peer-to-peer sharing and YouTube remixes. But it isn’t just gen X anymore. It’s the criminalization of an entire culture. To participants of fan culture, copyright has become something ignored until it is useful or relevant, which damages the credibility of law. By criminalizing an entire culture—one that is still growing no less—we’re creating a culture where it becomes alright to break the law or at least consider it lightly. In the context of fan culture where breaking copyright law is often ignored, the continued criminalization of fan culture is telling fans, especially younger fans, that it is alright to break the law if you can get away with it. By doing so, we’re compromising the very value of law.

Moreover, as both Boyle and Lessig have said, copyright as it exists now is strangling creativity.[20] [21] [22] As copyright laws become increasingly stringent and skewed towards copyright owners, the sandbox other, younger creatives can play in legally continues to shrink as well. Additionally, said laws are skewed towards estates and corporate copyright owners rather than the creatives they are supposed to incentivize. Current copyright laws in the US award copyright to creatives for the duration of their lifetime plus 70 years before their works are released into the Public Domain for the creatives of the day to play with. As it stands, there are thousands of works lost to the public, which means that there are thousands of works that will not be able to inspire another generation of creatives.

I’m not saying that copyright should be abolished. Creatives should be acknowledged and compensated fairly for the time and effort they put into creating their works. I’m saying that a system must exist that reconciles the interests of copyright owners and fan creators without criminalizing one side or the other. There must be a way to bring balance back to the relationship between copyright owners and the next generation of creatives. I can think of one—bringing the duration of copyright back down to at least the lifetime of the creative (which is the longest most reasonable duration in the context of incentivizing creatives!)—and I’m sure there are more. We just need to find them.

 ----

[1] Grinnell College. Fandom & Participatory Culture. n.d. 6 May 2020. <https://haenfler.sites.grinnell.edu/subcultural-theory-and-theorists/fandom-and-participatory-culture/>.

[2] Pelletier-Gagnon, Jérémie and Axel Pérez Trujillo Diniz. "Colonizing Pepe: Internet Memes as Cyberplaces." Space and Culture (2018).

[3] See the Dreaming of Sunshine fandom which emerged surrounding the popular Naruto fan fic of the same name. Similarly, there’s the Nuzlocke fandom which has spawned several fan art, fan comics, fan fics, and let’s plays based around the idea of playing through one of the mainline Pokemon RPGs under a certain set of self-imposed rules. There’s also the more recent Maribat fandom, which came into being more recently (that is, sometime mid-last year) and created a space overlapping two very different parent-fandoms: (1) Miraculous Ladybug and (2) DC Comics (specifically Batman).

[4] That’s why it’s called copy-right!

[5] U.S. Constitution. Art. 17, Sec. 106.

[6] U.S. Constitution. Art. 17, Sec. 107.

[7] U.S. Constitution. Art. 17, Sec. 107.

[8] Sean Thordsen, Esq. The Law of Anime Part II: Copyright and Fandom. 15 Feb 2013. Article. 6 May 2020.

[9] Jackson, Gita. It Used to Be Perilous to Write Fan Fiction. 16 May 2018. 6 May 2020. <https://kotaku.com/it-used-to-be-perilous-to-write-fanfiction-1826083509>.

[10] fandomlife-universe. "So I'm on AO3 and I see a lot of people who put." Fandom Life. April 2016. <https://fandomlife-universe.tumblr.com/post/140771184680/so-im-on-ao3-and-i-see-a-lot-of-people-who-put-i>.

[11] So I'm on AO3 ... (the forgotten history of disclaimers). n.d. Web. 2020 6 May. <https://fanlore.org/wiki/So_I%E2%80%99m_on_AO3_...(the_forgotten_history_of_disclaimers)>.

[12] Coker, Catherine. "The Contraband Incident: The Strange Case of Marion Zimmer Bradley." Transformative Works and Cultures 6 (2011). Web. <https://doi.org/10.3983/twc.2011.0236>

[13] Authors of /r/fantasy, how do you feel about fan fiction of YOUR works? 2019. Forum. 6 May 2020. <https://www.reddit.com/r/Fantasy/comments/b3e6jh/authors_of_rfantasy_how_do_you_feel_about_fan/>.

[14] Boyle, James. "Fencing off Ideas: Enclosure & the Disappearance of the Public Domain." Daedalus 131.2 (2002): 13-25

[15] Fandom Insights Lab. "The State of Fandom." 2019. PDF. <http://fandom.com/state-of-fandom/fandom-ebook.pdf>.

[16] Petrin, Katelyn Mae. How the rise in fandom culture changed the media industry. 21 June 2017. Web. 6 May 2020. <https://qrius.com/how-the-rise-in-fandom-culture-changed-the-media-industry/>.

[17] Jackson, Gita. It Used to Be Perilous to Write Fan Fiction. 16 May 2018. 6 May 2020. <https://kotaku.com/it-used-to-be-perilous-to-write-fanfiction-1826083509>.

[18] Most famous for being behind ArchiveOfOurOwn, one of the three most popular fan fiction hubs on the internet today

[19] Tor.com. Naomi Novik Talks Fanfic-Inspired Fantasy and Ending Temeraire in Her Reddit AMA. 25 Feb 2016. Web. 6 May 2020. <https://www.tor.com/2016/02/25/naomi-novik-reddit-ama-highlights/>.

[20] Boyle, James. "Fencing off Ideas: Enclosure & the Disappearance of the Public Domain." Daedalus 131.2 (2002): 13-25.

[21] Lessig, Lawrence. "In Defense of Piracy." The Wall Street Journal 11 October 2008: 1-3.

[22] Lessig, Lawrence. "Remix: How Creativity is Being Strangled by the Law." The Social Media Reader. Ed. Michael Mandiberg. New York: NYU Press, 2012. 155-168.

[onceandfuturekiki]

The reality of our protections as fanfic writers (aka: What you think you know about the law and fanfic is probably a myth)

Since I posted that reply a few days about about there being no laws or legal precedent stating that content creators can't read fanfiction, or that protects fic writers from their ideas being used by the original content creators, I've received a number of messages about it. Most of them have been curious, as they had just believed the idea that creators couldn't legally read fanworks, but there were a few that were very hostile and tried to challenge what are, really, just basic facts.

So I figured it might be a good idea to go a little (or a lot) more in depth on the matter of fanfiction, fair use exemptions, and whether or not fic is protected under copyright law. As fanfiction writers it's really important that we actually know where we stand legally and understand how copyright works, rather than just listening to the general idea of "yeah, you hold the copyright to your fic and you're totally protected" that goes around the internet. I did a ton of research and this is what I've come up with. Some of it is just restating what I said in the other post, but some of it is new information I did not originally include.

This is actually really important information, so please reblog it.

I was only able to find one court case where a person sued a creator of a derivative work sued the original content creator, and it was the one I cited in my original reply post. Anderson v. Stallone was a 1989 case where Timothy Burton Anderson sued Sylvester Stallone and MGM for copyright infringement. His claim was that he had independently written a script for a Rocky movie, and that he'd had several meetings with producers and other MGM bigwigs discussing it. He was told they'd pay him if they decided to use his script, but ultimately they decided not to. When the next Rocky movie came out, Anderson claimed that there were themes and ideas incredibly similar to his script, and he sued. The judge found that Anderson's script had absolutely no copyright protection as it was an unauthorized derivative work and that under 17 U.S.C. section 106 (2), derivative works are the the exclusive privilege of the copyright holder of the original content (in the case of the Rocky movies, the copyright holder was Stallone). This means that the only person who is legally authorized to create derivative works of a product is the person who hold the copyright to that product.

There are, of course, fair use exceptions. It seems like a lot of people don't actually know what fair use exemptions are (I've seen a lot of people say things that suggest they think that fair use just means that any sort of derivative work is protected), so I thought it would be a good idea to research and talk about what fair use exceptions really are.

Under 17 U.S.C. section 107 presents instances where the creation of derivative works would not be the exclusive right of the copyright holder. It does not cover ALL derivative, or ever transformative works. The exemptions are for derivative works or copies for purposes of criticism, comment, news reporting, teaching, scholarship, and research. To determine fair use, these are the factors that are considered:

the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.

the nature of the copyrighted work

the amount and substantiality of the portion used in relation to the copyrighted work as a whole

the effect of the use upon the potential market for or value of the copyrighted work

This set of factors was the result of the court case Folsom v. Marsh, an 1841 court case where a reverend, Charles Wentworth Upham, copied hundreds of pages from a 12-volume biography of George Washington, published by Bela Marsh, to create his own 2-volume work of his own. The pages copied were mostly letters written by and to Washington that he been published in the biography, and Upham argued as the letter were written by a US president, they belonged the US rather than a publishing firm, and that it was fair use because, according to his argument, he was creating something new. The judge ultimately found against Upham and Folsom, setting forth the above factors as the determination of fair use and deciding that their work did not successfully meet the criteria for fair use.

Campbell v. Acuff-Rose Music, Inc. was the case that established that a work being transformative made it more likely to be protected by fair use (but it did not make it a certainty). To be considered a protected transformative work, one has to be able to prove that it either advances knowledge or the progress of the arts through the addition of something new. LA Times v. The Free Republic also found that a work being non-profit or not used for commercial gain does not automatically mean it's protected under fair use.

So, it's a sort of fandom-wide, internet-wide idea that fanfiction would be automatically protected under fair use, but there is no guarantee of this. Whether or not it would qualify as fair use under any of the four factors is iffy, and the truth is, fanfiction will only have any kind of guaranteed protection if a creator or copyright holder actually files suit against a fic writer and the court ends up finding that the fanfiction in question qualifies as fair use. As there has, at this point, never been a case where a copyright holder has sued a fanfiction writer (there have been cases of original content creators suing people for using their characters and stories, but only in cases where the derivative work was going to be commercially published), the protections that fanfiction might have under fair use are up in the air. So don't assume that you just automatically have protection under fair use, because you don't.

The closest thing to someone being sued for fiction was the case of Paramount v. Axanar, where a relatively sophisticated Star Trek fanfilm was sued by the holder of Star Trek's copyright, Paramount, and how it went down isn't great for the idea that fan creators are automatically protected. While Axanar created new characters, the film used things that were created for the Star Trek universe, like the Federation. When they tried to get the case dismissed, claiming that those things were too abstract to be copyrighted, the judge disagreed, ruling to continue the trial because those things WERE protected under copyright. Paramount and Axanar settled out of court, with the latter admitting that their work did violate copyright and agreeing to make massive changed to their work.

But is your fanfic protected from a content creator using your ideas? Well, Anderson vs. Stallone did establish a precedent in regards to creators of derivative works not having this kind of protection. I wasn't able to find any other actual court cases where the writer of a derivative work filed suit against the original content creator for using their ideas. The only other court case I found that might set any kind of precedent in regards to this sort of thing was a very vaguely mentioned case where a fanfiction writer found a book which was not a part of the series on which her fanfiction was based that seemed to use a great deal of ideas, characters, and plot points from her fic. The judge in the case decided that the fanfiction writer's work was not protected because she didn't hold the copyright to the original work, and that only the copyright holder of the original work could file suit for copyright infringement.

A lot of people like to site an instance where a fanworks writer claimed that science fiction writer Marion Zimmer Bradley stole from her fanwork as a case of the courts declaring that fic was protected from creators using the ideas therein, but this is not the truth. No lawsuit was ever filed. The dispute never went to court, so there was no decision made by the judge in regards to fanfic's protections, and therefor, no legal precedent set.

One of the things that people like to lean on in regards to the idea that fanfiction is protected from the original content creators is the idea that the writer of the fanfiction holds the copyright to that fic. People seem to think that just by creating the fic that you hold the copyright, but the fact of the matter is that's a little murkier than that. While copyright law does grant the POSSIBILITY of something created for private use that has not been registered for copyright protection, simply creating something does not automatically mean your work is going to be protected by copyright law, especially if the thing you created is a derivative work, whether you think it's protected under fair use or not. There are some pretty specific laws about how much protection your work has if you don't register the copyright. If you haven't registered your work for copyright you can't actually get an injunction against someone infringing on your work. Under the law, you aren't actually even allowed to sue someone for infringement unless you hold a registered copyright. You can register your copyright even after an infringement and then sue, but you aren't going to be able to successfully sue without your copyright being registered.  So unless you've registered a copyright for your fanfiction, you're not going to be able to file a suit if you think the original content creator read your fic and stole your ideas.

I imagine the next question a lot of people are going to have is "can I register my fanfiction for a copyright?" I'm not 100% sure on this. I wasn't able to find anything that specifically discussed the possibility of copyrighting fanfic, but 17 U.S.C. section 103(2) says that any copyright on a derivative work only extends to the new material, which means any new characters, locations, objects, etc. So if you write a derivitive work, you hold absolutely no copyright on the original content that "inspired" you, or the already created world and characters. So if you're writing a fic with no new characters, locations, objects, etc., you're unlikely to be able to actually register a copyright, and any automatic copyright protection is going to be murky at best. And, as discussed above, there is at least one court case that established legal precedent that when it comes to fanfiction, the copyright holder is the person who holds the copyright for the original content and not the fic writer.

Ideas themselves do not have copyright protection. The execution of those ideas does. So if you WERE able to file suit against an original content creator, you wouldn't have a claim if the themes and ideas explored were similar, or even pretty much identical. Any legal claim you might have would depend on whether or not the execution is similar, so that would mean a similarity in a character, or a location, or an object, or a specific event.

I know a lot of people cite original content creators choosing not to read fanfiction because they worry about any legal issues that might arise as support for the idea that there's some kind of law or legal precedent preventing them from reading fic. There definitely are content creators who exercise caution in this area, but that does not mean it's a law, nor does it suggest that the law would come down on the side of fic writers in such a case. (Any sort of dispute of this nature, whether it went to court or not, would end up costing a lot of money and lead to some unpleasant press).

Which, mostly in conclusion, according to both legal precedent and the actual wording of copyright laws, means that it is unlikely that fanfiction writers actually have much, or really any protection from original content creators using their ideas.

So, a little bit of a tl;dr review, all of these ideas that go around the internet about fanfiction and copyright are myths...

Your fanfiction is automatically protected under fair use exceptions

You automatically hold the copyright of any fanfiction you publish online

You automatically have grounds to sue someone who plagerizes your fanfiction or uses your ideas

You automatically have grounds to sue an original content creator for plagerizing or using your ideas in their original content

Original content creators are legally not allowed to read fanfiction

These are the actualities that every fic writer really needs to know...

Your fanfiction is not automatically protected by fair use exceptions

You do not automatically hold the copyright for every bit of fanfiction you publish online as the original content creator holds the copyright for the characters, worlds, objects, etc. they created. Your copyright only extends to the new material (characters, worlds, objects, events, actions) you created.

You do not automatically have the right to sue for infringement unless your copyright is registered.

Ideas are not protected by copyright. Their execution is.

These is absolutely no statute or legal precedent that prevents content creators from reading fanfiction, no is there any statute or legal precedent that protects fanfiction writers from their ideas and work being used by the original content creator.

This is seriously something that creators of fanworks need to know. Fanfiction writers have made themselves feel safer by passing around unsubstantiated and unsupported ideas about the protection they have, but pretty much all of these ideas are myths.

It is important that we all know that, as creators of derivative fanworks, we do not have any substantial amount of legal protection. There is no legal precedent or statutes that prevent content creators from reading our work. There is no legal precedent or statutes that protect our works, ideas, and creations from being used by the original content creators. There is no legal precedent or statutes that establish any protections under fair use for fanfiction. Whether or not we actually hold copyrights for our derivative works is murky. We're not actually able to file suit for infringements without a registered copyright, and whether or not one would be able to obtain a registered copyright for fanfic is also murky. And all of the cases that HAVE happened that might relate to these issues or set any kind of precedent have not come down on the side of the of those who create derivative works.

Were a such case to go to court, we might end up being granted protections. But we also might end up with a ruling that denies us denies us protections. Right now, fic writers existed an a vague world of undefined legal status where we don’t have any official protections, but where we also aren’t officially violating the law.

I know it might seem like I've said it a million times right now, but it's so important that fanfiction writers (and other creator of derivative fanworks) know that there are no statutes or precedents that give us any legal protections. We need to be aware of that. Again, please reblog this because it’s vital information.

Sources and further information:

http://www.kentlaw.edu/faculty/rwarner/classes/legalaspects_ukraine/copyright/cases/anderson_v_stallone.html

https://www.law.cornell.edu/uscode/text/17/106

https://debmcalister.com/2013/04/28/copyright-myths-from-the-world-of-fan-fiction/

http://www.trademarkandcopyrightlawblog.com/2016/10/10-copyright-cases-every-fan-fiction-writer-should-know-about/

http://www.hollywoodreporter.com/thr-esq/cbs-paramount-settle-lawsuit-star-trek-fan-film-966433

https://www.legalzoom.com/articles/what-are-derivative-works-under-copyright-law

http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=9cbb473b-f87b-47eb-8d4b-0202ad56343a

http://www.trademarkandcopyrightlawblog.com/2014/02/a-presidents-day-copyright-story-george-washington-and-the-first-fair-use-case/

https://supreme.justia.com/cases/federal/us/510/569/

http://www.ipwatchdog.com/2014/02/15/protecting-ideas-can-ideas-be-protected-or-patented/id=48009/

https://www.newmediarights.org/business_models/artist/ii_what_can_and_can’t_be_copyrighted

https://www.thebalance.com/registering-a-copyright-3514952

https://fanlore.org/wiki/Marion_Zimmer_Bradley_Fanfiction_Controversy