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
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.
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):
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!
*Of course, copyright law varies from country to country, which is another issue in this internet age.