Intellectual Property

Fan Fiction vs. Copyright—Q&A with Rebecca Tushnet


"It takes a big studio to make The Avengers, but it doesn't necessarily take a big studio to write a piece of Avengers fan fiction," says Georgetown University law professor and fan fiction advocate Rebecca Tushnet. "Big content companies largely recognize that fan activities are really good for them because they engage people."

The growing popularity of fan fiction, a genre in which fans create their own stories featuring characters or settings from their favorite works of popular culture, raises thorny copyright issues. "Given how broad copyright is now, it's now possible to say fan fiction is an infringing derivative work," Tushnet explains. "In order to deal with that…we now talk about fair use, which allows people to make fair, limited uses of works without permission from the copyright owner."

As a member of the Organization for Transformative Works, Tushnet works to defend fan fiction creators caught in the legal debate between protected intellectual property and fair use.

Nick Gillespie sat down with Tushnet to discuss copyright law, fan fiction, and why media companies should embrace fan-created works.

Approximately 7.34 minutes.

Interview by Nick Gillespie. Camera by Meredith Bragg and Joshua Swain. Editing by Swain.

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  1. Why do people keep telling me the world isn’t ready for my Charlie’s Angels meet Warty fanfic?

    1. Because it’s not. Besides, that already got made, it’s called Con Air.

      1. Then the time is ripe for my new screenplay. Deliverance 2: Warty’s Revenge.

        1. That got made too, it’s called Men in Black III.

      2. Which one was Warty? Nic Coppola’s hair?

  2. Is it too soon to create a Batman/ Star Trek slashfic?

    1. Unless it’s femmeslash, it will always be too soon

  3. This is the first and only fanfic I’ve ever read… Harry Potter and the Methods Of Rationality.

    I couldn’t stop reading, tremendous stuff. Makes me wonder why someone this good would write fanfic when they show more than enough creativity to come up with their own property.

    1. It’s easy to expand on an existing premise. Creating an entire world (that becomes commercially successful) out of thin air can be exhausting and daunting.

    2. Many writers or aspiring writers use fan-fic to practice their craft and to stretch themselves in ways they won’t in their ordinary writing. Also, like most fans, writers often want to explore their favorite universes and actually have the skill set to do it.

      Personally, I would rather work on my own properties when I write, but I understand the usefulness and desires that drive someone to do it.

    3. Yudkowsky has written original fiction too, it’s posted on his personal web page. Given his career, it’s not really surprising that he doesn’t want to deal with the hassle of publishing.

      1. You know, I hadn’t read anything about the author. I’m not even sure where I got to the story from, but I’m glad you mentioned him. I looked him up and now I’m even more amazed.

    4. Cassandra Claire of the Mortal Instrument series (City of Bones is now being made into a movie)started out on Fiction Alley as an HP fanfic writer and wrote one of the funniest HP fanfics ever called “A Lot to Be Upset About” making fun of 5th books ALL CAP screaming Harry, slutty Ginny and spanking-prone Snape. Pity she pulled all her stuff off the Internet. She’s more famous for her Draco Trilogy that she did, quite lengthy pieces of work. I can recognize some of her plot ideas from the Draco Trilogy played out in her Mortal Instrument series. If anything, fanfic is a good jumping off point to develop your own stories and become published.

  4. I have a confession to make: the name Tushnet just made me snicker like a schoolboy. I feel so immature right now.

    1. How, how, how.

  5. The most successful example of fan fiction I know of is in the 163x universe created by Eric Flint in the book “1632”. The story of a West Virginia town transplanted to the middle of Germany in the 30 years war, it inspired so many fan written stories that Flint and his publisher, Baen Books, started an on-going online magazine of the better stories (The Grantville Gazette) that pays actual money for the writing. From this they have picked certain stories and had the authors write novel length books on it and had those published and turned into NYT bestsellers. Having your fan fiction turn into a NYT best selling hardcover via help from the original publisher? That’s awesome.

  6. Apparently 50 shades of grey started out as Twilight fan fiction.

    1. And the shit begat shit.

    2. Which is why I refuse to read it. I used to say, “Reading is never a waste of time,” until I read the Twilight series. All those lost hours. Oh, the humanity!

  7. Not even sure why fanfic should be considered to violate copyright (trademarks, maybe) — it steals ideas, but not (typically) the specific expression of those ideas in the way a plagiarist does.

    1. I suppose it depends on whether or not you believe in Intellectual Property rights strongly, or not. I know a lot of Libertarians do not.

      That said, I can see a problem if- right after JK Rowling published Harry Potter and the Sorcerer’s Stone- A big corporation started releasing a bunch of “The Real Adventures of Harry Potter” movies, comics and novellas.

      Basically, a large Corp could quickly muscle her out of her “Universe” and claim it through mass media exposure.

      1. Yeah, perhaps some of it is a trademark issue.

    2. It’s a derivative work.

      You’re using someone else’s characters, locations, and so forth.

      1. It’s impossible to have an “infringing derivative work”. By definition a derivative work has changed enough from the original so as to be considered an original work itself.

  8. Well, the next evolution in fanfic is playing out right now. Auror’s Tale is a Harry Potter fanfic splinter. #AurorsTale I’m curious as to how they worked the copy-write out with JK Rowling as they did a kickstarter program to fund a Season of this. They are telling the story into the future after the end of the epilogue from HPDH; (book 7) and basing it in New York. They got their full funding of $20K on Kickstarter to film and edit.

    Here is the video teaser that kicked it off:

    It was just a fun trailer idea. Everyone who saw it clamored for more and there was enough interest to do a Kickstarter and they got funded, which I must admit I am a contributor. Having read a lot of HP fanfic, I know there are a lot of good writers out there. There is one YouTube video that shows the acting/writing cast of Auror’s Tale discussing the ideas and premise of the series, and I recognize one of the actresses, as I have bought her Victorian themes fantasy books series – and she started out originally as an HP fanfic writer once. Met her at an HP Con.

    So if you do a follow up, it would be interesting to see how fanfic goes legit while not getting a litigious smack down. Perhaps some legal insight into Auror’s Tale would prove instructive.

  9. I missed this interview and one thing for sure that now copy right is a big matter in the entertainment industry.

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