Wizards, Vampires, and Fans of Fiction – Character Copyright in the Internet Age
June 30, 2010
Should fan fiction be permitted by copyright law? Roland Barthes, a literary theorist set out in his essay ‘Death of the Author’ his belief that once a text has been written by an author it no longer belongs to them, but to those who read it. As he puts it: “to give a text an author is to impose a limit on the text”. Many pieces of literature become integrated into society as a part of culture. Is it fair to restrain others from engaging with these works? Should authors still have control over these stories that have become such a part of society as a whole, or should the public be able to interact with them as well?
Fan Fiction
Fan fiction refers to the creation of stories by fans of an original work using the universe or characters of that work.
The question whether fan fiction infringes copyright attracts much controversy. Whilst some authors turn a blind eye to fan-based fiction, some enforce its removal from popular fan fiction websites. Those who oppose fan fiction argue that they do so in order to protect their universe and to prevent distortions of it.
The Harry Potter series has had thousands of spin-off stories written by its fans. J.K Rowling is said to not mind innocent fan-fiction written by true fans, but does oppose sexually explicit Harry Potter fan fiction. This illustrates an important issue. Whilst some fan fiction works might not damage the integrity of the world the original author created, others do.
Fan fiction challenges authors’ control over how the fictional world and characters they created are used. In 2003 J.K. Rowling and Time Warner filed a lawsuit against a Russian novel ‘Tanya Grotter’ on the grounds that many aspects of the story were stolen from ‘Harry Potter’. Whilst it is still in print in Russia, it has been banned from being translated or published in other countries.
Twilight
Twilight is another series which has produced a lot of fan fiction spin offs. The most notable of these is a novel named ‘Russet Noon’ which follows on from the fourth Twilight book, and develops a love story between two of its characters, Jacob and Bella, in contrast to the original love story which was between Bella and Edward. ‘ Russet Noon’ has led to a lot of controversy over whether it infringes copyright. It was released in March 2009 and although there has been speculation over whether or not the novel infringes her copyright, Stephanie Meyer has not yet taken any legal action. Although the book was originally going to be sold, the author has now decided to publish it for free. The publisher of the book, AV Paranormal stated, “When fictional characters become such an intricate part of the popular psyche, as is the case with the Twilight Saga, legal boundaries become blurred, and copyright laws become increasingly difficult to define. This is especially the case when actual cities like Forks and Volterra are used as the novel’s settings. Such settings are not copyrightable, as they are considered public domain. Similarly, the Quileute Nation is also not protected by copyright, and neither are vampire or werewolf legends”.
The extent to which copyright may be used to prevent fan fiction is an involved subject , which is complicated by the fact that it is not just copyright that is relevant, but also trade marks.
At its most simplistic, copyright laws protect writers from unauthorized reproductions of their work. Such reproductions include verbatim copying, but not the copying of ideas.
There is widespread confusion over the extent to which the plot or characters are protected. This is unsurprising given high profile cases such as Dan Brown’s book The Da Vinci Code. In that case it was claimed the authors of an earlier work, Holy Blood, Holy Grail, had copied the theme of the book, and lifted a sequence of events that was central to the plot. The court found, inter alia, that a chronologically ordered sequence of events does not necessarily attract copyright in itself, and dismissed the case.
The state of UK copyright law is complex. However, in general, far more is required to infringe copyright than the incidental use of plot elements such as locations or events.
What of fictional characters? The Russet Moon fan fiction work employs characters developed in the Twilight series, and so at issue is whether these are protected by law, copyright or otherwise. As with the majority of similar questions, the answer is not straightforward. UK copyright law has long held that copyright does not subsist in a mere name, and while some have argued that well developed fictional characters, comprising far more than a name, should be protected, the UK courts have in the past rejected this, even in relation to complex characters such as Sherlock Holmes. The stance taken on these issues varies between jurisdictions, for example the US courts in the past have found James Bond to attract copyright, but there are other ways in which characters might be protected.
Trade marks
Although the visual features of a character can constitute an artistic work for the purpose of copyright protection, this is of reduced utility to authors wishing to suppress fan fiction. Potentially more effective are the rights conferred by trade mark law, and the tort of passing off.
Where character names are registered as trade marks, authors might successfully bring an action for infringement against fan fiction writers, but again the waters are muddied. Complex questions such as whether there has been trade mark use (for example, selling the fan fiction work) or confusion in the minds of the public as to the origin of the work would need to be addressed.
What is undoubtedly certain, is that fan fiction, and fan sites generally, are going to raise more and more intellectual property law issues in the years to come.
