Last week, I posted about the now infamous (for all sorts of reasons) 50 Shades of Grey and some of the ethical and legal questions its existence raises.
One of those issues is copyright. In short, if work is the subject of fanfiction, who owns the rights to the resulting writing? We aren’t talking here about the right to be recognised for having created a piece of writing, but the right to exploit that piece for profit.
For completely original writing (insofar as anything is completely original – we are all products of our influences) the distinction is clear and supported by existing law in many countries. The author owns the copyright, until they assign those rights to someone else (such as in a publishing deal). There are exceptions, such as if the work is created as part of your paid employment, in which case the employer usually owns the copyright. (This applies to magazine articles I wrote while editing a magazine, for instance. But it is seldom the case with fiction.)*
But things get hazy when the work is created as an offshoot of something else and with the input and contribution of a community or communities, as is the case with fanfiction.
Typically, Dear Author has some great posts on this. A fascinating post on whether you can copyright characters here, an interview with a law professor on fanfic and US copyright law here and for those who didn’t catch it the first time, the very popular one about fanfiction and copyright, here.
Now, it seems to me that the likelihood of a successful prosecution for copyright infringement in a case like 50 Shades is slim. But that doesn’t negate the ethical issues that I discussed in the last post. Nor does it remove the bad taste from the mouth of the many keen fanfic community members who think publishing ‘fanfic with the serial numbers filed off’ (an expression I have only come across since all this hit the fan) is out of order.
So, how do we deal with this? How do we give the people who just want to do this for fun, and community, access to the works they love, without compromising the rights of the original authors to profit from their creations? How do fanfic writers who wouldn’t dream of making money from their fanfic know that others in their particular community share their ethics?
The answer might be Creative Commons.
So, what is Creative Commons? I’m so glad you asked.
Creative Commons is a way of licensing creative content that allows other people to use it, add to it, expand it and use it again, under agreed terms. Those terms might be that users simply acknowledge the source of the original material. Or they might be more restrictive, as in the license I mention below, that seems appropriate for fanfic communities. But the point is that it allows the creator of a document, or an idea, to make clear how they would like the material to be used and shared, and it allows those who wish to be ethical and transparent about how they use others’ material, to be clearly so.
To take a quote from a video on the Creative Commons website, A Shared Culture, Creative Commons is ‘a community created around content’. Sounds kinda like fanfiction, doesn’t it?
Of course, it also sounds like scientific online communities and education communities, two areas that use Creative Commons all the time. Or, in an example that everyone will be familiar with, like a jointly-created, online encyclopedia. Wikipedia is a Creative Commons document. Everyone can contribute to it, everyone can benefit from it, but no-one can use it for profit.
The following, italicised section, is taken from the front page of the Creative Commons website. (Click on the blue text below, or the logo, to go there.)
What is Creative Commons?
Creative Commons helps you share your knowledge and creativity with the world.
Creative Commons develops, supports, and stewards legal and technical
infrastructure that maximizes digital creativity, sharing, and
innovation.
This bit is from the ‘about’ page (again, blue = link)
The idea of universal access to research, education, and culture is made possible by the Internet, but our legal and social systems don’t always allow that idea to be realized. Copyright was created long before the emergence of the Internet, and can make it hard to legally perform actions we take for granted on the network: copy, paste, edit source, and post to the Web. The default setting of copyright law requires all of these actions to have explicit permission, granted in advance, whether you’re an artist, teacher, scientist, librarian, policymaker, or just a regular user. To achieve the vision of universal access, someone needed to provide a free, public, and standardized infrastructure that creates a balance between the reality of the Internet and the reality of copyright laws. That someone is Creative Commons.
Our mission
Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.
There are several different Creative Commons licenses. The one that seems to me to be most suitable for fanfic is this one (again, italics equals quote from their site):
Attribution-NonCommercial-ShareAlike
CC BY-NC-SA
This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.
As I read this, this would allow for fanfic of a work, but only on the proviso that the resulting fanfic is not sold and that, if it is made available, it is also available to be built upon in its turn, but with the same proviso, that the resulting works not be used for profit.
I believe there are already some authors using creative commons licenses to allow fanfic. If anyone knows of examples, please share in the comments.
So what do you think? It doesn’t solve the ethical tangle that is 50 Shades, but might Creative Commons be a way forward from here? Something that became abundantly clear to me, in investigating this topic, is how much enjoyment and value people get from their fanfic communities. I would hate to see people lose those benefits because they are concerned about the ethics of their activities. Do you think this might help?
Weigh in! I want to know what you think!
Cheers, Imelda
*Of course, copyright law varies from country to country, which is another issue in this internet age.
Wine, Women & Wordplay 
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Hi, I know this isn’t a recent post, but I’ve seen someone reposting fanfiction they did not write on a separate site, a site that has advertising (or might have, there’s a line that says ‘Advertisement’ but shutting off my adblocker didn’t make an ad show up, so it might be a place holder thing), thus potentially generating income from someone else’s work.
The stories are supposedly collected by a bot, and attributed if the original writer put their name in a header in the fic. When questioned the owner of the site had this to say: “Creative Common License which is usually widespread in internet allow repost with links on original author without explicit allow it by the author. So, i repost and make link on original. So, ask permission on more then 1000 authors will be hard task. So, i do it another way. This is why this page exists.”
So far this person has removed fanfiction when requested by the fanfic writer, but otherwise does nothing to inform anyone that their fanfiction has been ‘collected’.
So… can someone put Creative Commons on something they didn’t create? I realise fanfiction is shaky ground on which to stake a claim of ‘Mine, I made this, no sharing’, but can someone just slap Creative Commons on a piece of writing and share it on their site without the fanfiction writer officially saying there is a Creative Commons license on it? People do similar things using fanfiction recommendation lists, of course, but lists link back to the original fanfic writer, they don’t display the entire piece of writing wholesale.
No, Grace, not as I understand it. The writer retains copyright by default. Creative Commons is a way of the writer specifying how their work can be used, but they are the ones who choose to apply it, not the user. The only exception might be if the site the fanfic was originally published on required participants to agree to a Creative Commons arrangement before publishing. But I’d be really surprised if that was the case. This person’s reasoning sound very like people who justify stealing published works by saying ‘I can’t afford them.’
Hi Imelda,
Thank you for your explanation. I did think that Creative Commons was something that only the creator of something could say was applicable to their fic or art, but I could not find a direct mention of this on the Creative Commons wiki. I don’t know how to communicate this to the owner of the website mentioned previously though.
Should fic writers declare ‘All Rights Reserved’ on their work, or does the nature of fanfic, being derivative of another person’s original work, mean that fanfic writers don’t have much to stand on when trying to protect their fics?
Another thought occurred to me. If fanfiction is created by use of Creative Commons, and as you mentioned in your post, one version of the license would “allow for fanfic of a work, but only on the proviso that the resulting fanfic is not sold and that, if it is made available, it is also available to be built upon in its turn, but with the same proviso, that the resulting works not be used for profit”, wouldn’t this allow the reposting of entire fanfics as long as it was credited? Because by using Creative Commons to write fic, aren’t fanfic writers behooved to follow the spirit of the license (if not exact terms somewhere) and allow their fic to be distributed? Or does the license to share stop after the first remix of original content into fanfic?
Hi Grace
Fanfic is complicated when it comes to copyright, which is one reason I won’t touch it with a ten-foot pole. Actually, it’s the main reason. However, I think the spirit (and indeed the letter) of the creative commons license you mention is to allow people to build on what you’ve created, as you have built on others. It’s for community-built fanfic. I don’t think it is in the spirit of that to take pieces and publish them as finished pieces on a site that is just for reading. And certainly not without acknowledgement. I think you need to look into the rules of the community where you first posted your fic and see if they allow for reposting on other sites. Re your other question, about whether you can copyright your fanfic. the answer is yes and no. Yes, in the sense that anything you write is automatically your copyright, unless you wrote it while employed by someone else to do so. However, if you have used someone else’s intellectual property in your work (characters, world) then your right to exploit your work (for financial gain) can be affected legally and (as far as I’m concerned, definitely) morally. However that doesn’t mean that someone else can just do whatever they like with what you did, especially if they are making money from it. If someone has reposted your work without your say-so, ask them to take it down. And in future, put a note on your work about how you authorise it to be used (or not).
Hi Imelda,
Thanks for clearing that up 🙂
This clears up so much! Thank you so much for this post ❤