The first fanfiction I remember genuinely losing my shit over was AbsolutelyIris’s (2012) “Written in Reverse” on AO3. It was a Misfits fic about the love story between Alisha Bailey and Simon Bellamy and I absolutely ate it up and sent it to everyone I knew who had watched an enjoyed the show Misfits (which was exactly 2 people, and exactly 0 of them read it). At the time of publishing this blog post, that fic has 15,932 hits.
14 years after its publication, we’re in a different publishing landscape (well no not really that different). Fanfiction that gets really big gets big book deals now. The first big one that comes to mind was Fifty Shades, which was originally Twilight fanfiction. Most recently, there’s been a wave of Harry Potter fanfics turned “proper” published books, the most significant of which to me personally was Manacled → Alchemised.
Back in the days of Fifty Shades, it was an open secret, but the publishers did not lean into the fanfic angle. But that’s changing. The weird thing about this current moment is that now, publishers are openly leaning into the fact that their books started out as Harry Potter fics:
In order to sell it, the authors of the OG fics have had to remove all traces of the “source material” and swapped for something original.
Which is so stupid. Seriously IT’S SO STUPID!!!!! Because of having to adhere to existing copyright law, the publishing industry’s solution to the “this is a derivative work” problem is to remove traces of its source material instead of citing sources.
I do get that stripping away the source material is what makes the new resulting work legally protected. When you strip the identifying details away, that’s what makes it outside the scope of the originally copyrighted work.
I GET IT.
I just think it’s spiritually, ethically stupid.
Consider how we handle this in nonfiction. In nonfiction, which is inherently almost always derivative work to a degree, we cite our sources.
BTW I’m not saying this is LEGALLY the same thing. In nonfiction, facts and ideas aren’t copyrightable to begin with (so citing the way its explained addresses the plagiarism stuff). In fiction, what fanfic “copies” (characters, worldbuilding details, plot) is the copyrightable part, so I get that citing your source doesn’t address that issue. I’m just saying it should count for something, from a moral perspective.
But if you write a piece of fanfiction, you have to erase evidence of where it came from in order to profit from it in order for it to avoid being legally problematic. The resulting book, which is legally… something else… is also often, and with respect, often worse.
Fanfiction works in part because its relying on an agreement between reader and writer that we’re in the same literary/fiction universe, and using the same cultural/world-building shorthand. That shared context is why the stories that spin off of the “original” work work. When you strip away the original work from the fic, you’re left with something that starts out with no good reason to read it… AND most of us know what it’s actually based on anyway!
Under my irritation is the question, why can’t we change policy such that fanfiction can make money as fanfiction?
Most authors already welcome fanfiction (when no money’s involved), the issue is just about who gets to profit, right? So that means the real issue isn’t so much about visibility, but about commercialization because… capitalism. Which is exactly why I’m emphasizing citation so aggressively. Sure, maybe we need some larger discussions around profit sharing or about the scope of the fic writer (e.g. the spirit of this argument is a lesser known fanfic writer is writing a derivative work, not a major studio is “writing a fanfic” and stealing an indie writer’s book without paying them). I obviously understand there are a million ways this could be abused if not parsed out perfectly. Thankfully I’m not a copyright lawyer. Just a fanfic lover.
Publishing is already undergoing a massive paradigm shift anyway, along with everything else on the planet, so why not revisit copyright law as it pertains to fanfiction?
To me the strongest argument for why we don’t let fanfiction writers profit from their works as-is is because of the argument that fanfiction could function as a “market substitute” for the original work. The idea is that potential buyers/readers would buy the derivative work either out of confusion or from the belief that the derivative work is a replacement for the original work… but that’s stupid. Because most of the time, people who are consuming fanfiction either are current or former fans or consumers of the seminal work upon which it’s based.
I wasn’t out here reading Alisha/Simon fanfiction willy-nilly, I read it because I adored that relationship in the show Misfits. There’s no world in which I ever read that fanfic without already enjoying Misfits.
Similarly, you don’t accidentally end up a Dramione shipper reading Manacled if you never read or watched the Harry Potter movies. It just doesn’t work that way.
And so, there are no damages to the original source work by way of replacement in the market. (Because fans of the original work are the ones who are likely to then also consume the fanfiction work.) But… I also understand that copyright / damages protection isn’t just about “direct replacement,” but are also about the OG author’s ability to control the derivative market too. Like what’s to stop a major studio from then creating a sequels, spin-off, adaptation, etc and take away the author’s ability to do that? I’ll tell you what: a properly written policy, duh. You can’t throw out this entire proposal wholesale just because it could be abused; arguably, the current laws that allow popular fanfics to strip away the source IP and then still profit are also “abusing” the spirit of the current law, no? But I get it: a wildly successful (even a properly cited) fanfic could still compete with an author’s ability to control the derivative market, even without confusing anyone about which book is the “real” one. I think citation HELPS mitigate this, but I don’t have an easy answer for this. But again, the system as it is now is stupid.
And, with some solid policy suggestions for how it would work if we revised copyright policy as it pertains to fanfiction, we can further avoid the damages concern. Consider my policy suggestions for how we might revise existing copyright / fair use law in order to allow fanfiction to be profitable:
*And if that creator says no (like they don’t want the association / their name near it, maybe you abide by that? IDK I’m not literally writing the law I’m just here to offer insights.
A properly-cited fanfic would/should function similarly to parody / critique; it’s work that’s engaging directly with a source, in conversation with it. It’s expanding the seminal work’s reach. In theory, maybe it’s even getting the original source more of an audience.
Good fanfics are continuations/reimaginings/expansions of an existing universe. The best ones feel like they’re really from that universe. I obviously do understand why that’s different inherently from parody (which is legal protected specifically because it critiques the work it borrows from). But I’m trying to say I think continuation ALSO deserves protection on different grounds.
I’m not a publishing / copyright lawyer (clearly) and obviously the current law is the current law regardless of my thoughts on it. (I’ll be honest that I don’t have a clean answer for how this would get enforced; thankfully, smarter legal minds than mine would be the ones to work out the mechanism. But I don’t think the fuzziness of enforcement makes the underlying principle of my argument wrong). But as we know, and as I can confidently state as a former history teacher, this is the law and this law makes sense are two very very different things.
I just think the fact that the current framework’s preference for erasing your sources rather than citing them seems… ass-backward.
Extra credit…
