Statement on Fanfic

Originally Published as a “Writers on Writing” column at Circlet.com, on May 9, 2010.
My Statement on Fan Fiction & Fanworks
by Cecilia Tan
A slew of authors lately (2010) are speaking out against fanfic.
Everyone is entitled to their feelings, of course. I wouldn’t try to impose my feelings about fanfic on other writers any more than I would try to impose my polyamorous, kinky lifestyle on a monogamous vanilla couple. (Even though I feel certain they are missing out, and even though they are certain my very existence may undermine all the values they hold dear.)
As you might gather from my tone, I am not one of those who is against fan fiction. I am wholeheartedly for fan fiction and other ways fans can engage their imaginations with the stories I tell. Isn’t that the whole point of writing fiction? To create a world inside the reader’s head, instead of just keeping it here in my own head?
This debate in the blogosphere is hitting at a very timely moment for me, as I recently stumbled across some actual fan fiction “in the wild” based on my Magic University universe and characters.
Some years ago I attended a panel on fanfiction and fanworks on which several lawyers sat. The audience was mostly fans, but I asked the lawyers the question, what can writers do if they want to encourage, rather than discourage, their fans, and what should a writer do if she discovers people writing fanfiction in her universe?
The advice I was given at the time was it’s okay to let people do it. You will not lose your copyright or anything crazy like that. (Some authors labor under the mistaken impression that if they don’t defend against “infringement” they’ll lose the copyright. That’s wrong.) But, they told me, to be safe from future lawsuits *against* me by my own fans, I should definitely not read it. And if I do read it, disavow all knowledge.
Hearing that made me sad. I’ve been a professional writer now for more than twenty years. (Holy double digits Batman!) Just a few years ago (2006) when my fiction writing career was less busy than it is now, I started writing Harry Potter fanfic for fun. I likened it to a professional ballet dancer going out to a disco or dance club. What, I’m not allowed to have FUN with my talents, just because I use them in my paying job, too?
In fact, I’d say writing fanfic made me a better writer. Fanfic kept me “in shape” for writing at a time when I was burned out otherwise; it gave me an instant community of feedback and validation; and it gave me the freedom and the room to experiment with fiction styles and genres I hadn’t played with before. I learned to write romance that way. I experimented with the nuances of the unreliable narrator and the difference between reminiscent past tense and “past present.” And so on. Could I have experimented with all those things in my own fiction? Yes and no. That would have been like experimenting in the kitchen of a restaurant while paying customers are waiting to eat, whereas writing fanfiction was more like having a dinner party of good friends over, and serving them up what I created, and knowing full well they’d tell me if it was any good or not.
The elephant in the room for many authors who are against fanfic, of course, is that so much of it is erotic. One of the prime urges that drives fans to write fic (though by no means the ONLY one) is to fill in the sex and eroticism we feel is missing from the canon. For an author who doesn’t like people playing with their dolls, this must be especially squickful.
Thank goodness I’m not one of them. Spurring people’s erotic imaginations is my whole purpose in LIFE, in fact. That’s one of the major things I was put on Earth to do!
So, one, I’m not against fanfic because it would be hypocritical of me to have gotten so much fun out of writing it myself and then to turn around and deny that joy to others, and two, I feel it would only be an extension of my life’s mission to spur more people to fantasize so supporting it is win-win.
What I did this week in support of that stance is I joined the Organization for Transformative Works. You can do so for just a $10 suggested donation (or give more). I had previously supported the organization under my fannish name, but I re-joined, this time under my professional name. Here’s what I told them on my application:

“A fandom-friendly lawyer I spoke to a few years ago who warned me … that I must disavow reading [fanfic in my universe]. This breaks my heart [and] I’m writing to ask — is that still the advice you would give today? And if it is, I want to support the OTW, because if any organization is going to be at the forefront of changing that state of affairs, I bet the OTW is it.”

To my delight, the OTW’s legal chair, Rebecca Tushnet, wrote back to say that maybe it would be OK for me to read it after all. I’m going to quote (with her permission) from what she said, rather than try to paraphrase:

“Basically, the reason for the advice you got is this: It is in theory possible that you would read the story, later go on to write something similar, and face a claim by the fan that you copied her work.
“There are many reasons to discount this risk, the least of them that the case law is all in the first author’s favor: if someone makes an unauthorized derivative work—like a fanwork—no court is going to be receptive to a claim that a later authorized work by the first author infringes the fanwork. And in any case, copyright protects expression, not ideas, so even if you wrote something with the same basic idea as the fanwork that wouldn’t be infringement.
“But not being able to win doesn’t erase the possibility that someone could threaten to sue, so that’s why this reason is the least persuasive answer to this fear. The more persuasive answer is actually that very same difference between winning and threatening: it doesn’t take a fanwork to generate a threat! If you read your fan mail, you might encounter a fan’s ideas about what should happen with the characters, expressed not as a story but as discussion.
“Some authors ask their fans to use Creative Commons licenses on their fanworks to make clear that the fanworks don’t pose any threat of interference with the original authors. I think this is legally unnecessary (and might not work, since a CC license requires attribution and the real fear is that the fan would claim that a new work takes from the fanwork without acknowledgment, exceeding the scope of the license). Still, the signalling effect might be somewhat helpful in practice.”

Thanks, Rebecca!
So, without further ado, here’s my actual statement in support of fanworks created in my universe:
I, Cecilia Tan, tell stories and publish my works because I want to spur the imaginations of my readers. I view non-commercial fanworks as a natural extension of that inspiration. The only thing I can’t support is anything that would damage my livelihood or reputation, hence keep the stuff non-commercial and label it as non-commercial fanfiction when disseminating/posting it. If you break any local laws where you are to either read my works or write about them, please don’t tell me. I may or may not read or comment on fanworks out there. Sometimes my time is limited, sometimes a comment would turn out to be a spoiler for another reader, and so on, but don’t mistake my silence for ‘don’t ask, don’t tell.’ I support the creation of non-commercial fanworks and fanfiction as a valid fannish activity, right up there with costuming, filking, and text-based play-by-post role playing.
Having said that, it’s probably only a matter of time before someone utterly blows my mind by writing a Harry Potter/Magic University crossover fic… or even filk ( insert ominous music here). But at least you all know where I stand!