I saw this today and thought of your reference to fan fiction recently. Would love your take – is it harder for young writers to get established in a popular genre if the tropes lend themselves to appearing like plagiarism? How does one determine copyright if the ‘original’ fiction was fan fiction to begin with? Or is this all over the top whining from authors who should have known the risks of capitalizing on the popularity of a shared genre vs coming up with something original. It does concern me that fan fiction could really explode at the expense of established authors depending on the outcome of the lawsuits.Rebecca
The article in question: https://www.nytimes.com/2020/05/23/business/omegaverse-erotica-copyright.html
Long story short: someone wrote werewolf erotica. Someone else copied her tropes. She threw a fit.
There are three separate questions here.
Fan Fiction and copyright
First, fan fiction. The legality of fan fiction is a much debated issue, but at the core it hinges on the concept of derivative work.
According to US Copyright Office, “A derivative work is a work based on or derived from one or more already existing works.” Fan fiction, by definition, is a derivative work. It is set in someone else’s fictional world, it uses characters, setting, and unique aspects of that particular world, and it makes no attempt to hide what it is. Its discoverability depends on it being properly attributed, so it’s labeled as Harry Potter Fan Fic or Twilight fan fic, and so on.
US Copyright Office also tells us that “only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The owner of a copyright is generally the author or someone who has obtained the exclusive rights from the author. In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully. The unauthorized adaption of a work may constitute copyright infringement.”
What does it mean? It means that, in principle, because fan fiction is derivative by nature, it doesn’t enjoy protection of copyright. However, things are not always so clear cut.
legality of fan fiction
People who argue for the legality of fan fiction usually invoke “fair use” doctrine, but it’s a layered concept, which deals with the amount of original material in the derivative work and the perceived effect upon the original work’s value, among other things.
Opponents of fan fiction often argue that it diminishes the value of the original work because it changes the readers’ perception of the original characters. If the character is not racist in the original fiction, but portrayed as racist in fan fiction and the readers of fan fiction develop hatred of that character based on fan fiction, this can affect their enjoyment of the author’s original work and therefore lead to reduced sales. There is a counter argument to this, but if we get into that swamp, we’ll be here all day.
Bottom line: the author of the original work can force fan fiction writers to stop producing derivative works if they take them to court.
Fan fiction has its roots in the folkloric tradition. Much as storytellers passed on fables and fairy tales from one generation to another, each adding their own touches, fan fiction writers put their own spin on the existing fictional worlds. Published writers fall into two categories on their stance on fan fiction: those who hate it and those who don’t. Those who hate it really hate it.
We know that a lot of copyright holders hate fan fiction and they have the legal right to stop it, so why don’t people get sued more often?
Taking people to court is expensive, and recovering damages from a fan fiction writer is unlikely. When the copyrighted work is profitable to the copyright holder, they tend to aggressively defend it. If Bob Somedude writes a Star Wars novel and posts it online free, Disney is unlikely to go after him. You bet that if we write a Star Wars novel, Disney will sue us. They don’t need our money, but we have a high enough profile to be made an example of.
A lot of writers are comfortable with fan fiction use of their work, others are not. Anne Rice is not. Neil Gaiman is. We don’t mind, but we don’t want to read it in any way, shape, or form. Not even a paragraph. It is a stance shared by a good portion of fiction writers. Here is an interesting article that goes into detail about different authors’ take on it and Anne Rice’s legal battles in particular.
Takeaway from all of this: the only way to legally profit from fan fiction is to transform it into an original work by changing it so much that it exists independently of the original source material. Some published works that started as fan fiction: Fifty Shades of Grey (Twilight,) City of Bones (Harry Potter,) there is more here. All of these works were substantially revised to file off serial numbers of their fan fiction origin.
So if you’re worried that fan fiction “could really explode,” that train has sailed years and years ago.
Usage of tropes
Plagiarism has a very narrow definition. In fiction world plagiarism requires copying the actual words from the original work. Fan fiction writers don’t typically plagiarize, unless they are copying chunks of the original book. They create derivative works, which infringe on copyright of the original author. A lot of times when people accuse someone of ripping off someone’s fiction, they are reacting to the use of tropes.
Tropes are reoccurring motifs or fictional devices particular to specific genre or type of fiction. They are so entrenched in the narrative tradition that people use them over and over. For example, a man and a woman have a one night stand, woman becomes pregnant, gives birth, and raises the child, then the father discovers the surprise child and now wants to take an active role as a parent which leads to eventual romance and happy marriage is a trope called Secret Baby.
- Werewolves shifting during full moon.
- Supernatural creatures, shapeshifters, vampires, magic warriors, etc, recognizing someone as their soul mate by scent or other characteristics at first glance
- Magic swords, sentient swords, swords that disappear and can be summoned.
- Pack structure: alpha, beta, omega.
When you look at the article, here are the points Ms. Cain views as plagiarism.
Then, in 2018, Ms. Cain heard about an up-and-coming fantasy writer with the pen name Zoey Ellis, who had published an erotic fantasy series with a premise that sounded awfully familiar. It featured an Alpha and Omega couple, and lots of lupine sex. The more Ms. Cain learned about “Myth of Omega” and its first installment, “Crave to Conquer,” the more outraged she became. In both books, Alpha men are overpowered by the scent of Omega heroines and take them hostage. In both books, the women try and fail to suppress their pheromones and give in to the urge to mate. In both books, the couples sniff, purr and growl; nest in den-like enclosures; neck-bite to leave “claim” marks; and experience something called “knotting,” involving a peculiar feature of the wolf phallus.A feud in Wolf-Kink Erotica Raises a Deep Legal Question
These are tropes. Patricia Briggs did Alpha and Omega way before any of this happened. You can’t copyright tropes. You can trademark names and characters, which we have done, by the way, after one author copied our world, including Lyc-V. You can copyright novels. But you can’t trademark or copyright tropes.
She doesn’t have a leg to stand on. You can sue someone because they creates a similar work. You just won’t win.
Our work has been imitated countless times. Sometimes by someone we knew, which did feel like a betrayal. We do examine each instance of such imitation and we vigorously defend our copyright in cases where plagiarism can be proven. But in the end, our work is better, because we created this world and we know it best. When people attempt to appropriate it, they end up with a knock off. It’s not their world; it’s ours. And that’s all there is to it.
Update: Calling other people stupid is not allowed. Express your opinions without profanity or name calling. 🙂
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