on derivative works and serial numbers

[tielan]

taraljc has a great explanation of Why Fanfic Relies On Context (a.k.a. Why Filing Off The Serial Numbers Doesn't Work)

I've written original fiction where I essentially filed off the serial numbers. More than one story, in fact. However, in each case, the context of the story bears little to no resemblance to the original universes; only the characters and their essential personalities have been transported through the looking-glass and into the story. I like to think that the characters are more archetypical, "based upon" rather than direct copies of. On the other hand, readers knowledgeable about my fandoms and favourites could spot the prototype characters in those stories from five klicks away and probably wouldn't even need glasses to do so.

Regarding pro-authors against fanfic:

One of my favourite authors once requested that fans not write fanfiction about her worlds and characters - partly because of the copyright issue, but also because she said she wanted fans to write their own stories and worlds so she could read them. I don't know if her perspective has changed in the decade since she said this, or if she's re-couched it in different phrasing. Certainly her fandom is small and fairly close-knit, she hasn't written much since the turn of the millenium, and so most people have observed her wishes in this.

And, we're back to serial numbers and filing them off, again. Because this author started off in fanfiction. In fact, she's sold novels that are more or less rewrites of stuff she wrote while in fandom. Those serial numbers? Are filed off pretty good. But if you look at the basic story of betrayal and power and redemption, the way the characters interact, or even the archetypes they represent, the serial numbers spring back into sharp relief.

It's a damned good story.

Which isn't to say that taraljc is wrong or that Gabaldon is right.

The truth is, one can file off the serial numbers if one wishes to - it can be done. But most fanficcers don't want to, because the fanfic is all about 'what if' and alternative possibilities (even porn in fanfiction is primarily a sexual 'what if' tailored to one's own preferences and kinks) - and for a 'what if' or AU to fully work, knowledge of the original scenario is necessary.

Plus, it's always fun playing in a pre-setup sandbox, where you don't have to sell people on the existence of the sandbox in the first place.

Comments

[rhianona]

While I sympathize with authors such as MZB, an author whose work I am a fan of, I still don't think they have a legal leg to stand on. And that is, for me, the main interest in this discussion. I read and know of plenty of authors that have asked fans not to write fanfic based on their works. It doesn't stop fans from doing so, just prevents them from tagging them as being based on said author's works on major fanfic sites, such as FFN. I also know of plenty of authors who don't speak about its presence. Still others say that they consider it an honor that their fans would want to write fic based on their works.

The issue of fanfic or fanworks in general has never been adjudicated before the court in the US, and as far as I know, anywhere else in the world. And until this is done, the only recourse authors have is to ask their fans not to write fanfic based on their works, while knowing that not all fans will abide by their wishes OR for an author or publishing house to actually bring an action to the courts on this issue. Until then, it is merely threat of legal action.

As to your example, I'm surprised that the fan who was blackmailing MZB was able to do so successfully. The fan should have lost since said fan would have had to prove that MZB read said fanfic and that the fanfic was the direct inspiration for it. Unless MZB commented on the fic or mentioned reading it, I don't see how it is possible for the fan to win - and even if MZB did say she had read the fic, it would still be difficult for the fan to win since it is based on MZB's original works.

Most authors that I know or follow, directly state that they do not read manuscripts sent to them as they've been advised by their lawyers not to. I imagine that they will be adding fanfic to that disclaimer as well if it becomes a major issue.

Again, I'm not coming down on any one side in this argument. I think it is a complex issue, with many good points to be made on either side. However, from a legal standpoint, I do not believe an author has any legal recourse at this time simply because no one has ever brought it to a court for adjudication. Under current US legal doctrine, fanfic would most likely fall under Fair Use Doctrine and the author would need to prove several points in order to prevent fanfic - and those points aren't easy to prove.

[tielan]

Look, I'm not arguing whether it's legal or not, whether an author would win in a court of law. It's up to the fanficcer whether they abide by the wishes of the author and for what reasons.

The issue with MZB came about because MZB encouraged fanfiction, read it, and even participated in some of it herself. (This was back in the late 80s, early 90s, mind you, long before the internet as we know it, probably back to the oldest days of usenet groups.) That's where the "I'm not going to read your stuff because I may lose value" came into force, and where authors became chary of fanfic.