Are Jack and Will A Legal Pairing? (Maybe)

This is the third post in a new weekly series titled FanFiction Fridays. Every Friday for the next few months, an eclectic mix of writers will guest-post on FanFiction (please go here for a controversial definition). You will be hearing from Computer Science majors and published authors and FanFic writers and Drama geeks and articular fans. FanFiction is fascinating to me because it brings up issues of technology and copyright, originality and creative derivation, gender-norms and digital communities.

This week Matthew Alexander Holmes writes about the trouble with telling when fanfiction is fair use. Matthew does not read fanfiction recreationally, but is a nationally competitive gymnast and has duel Computer Science and Public Policy majors at William and Mary. His favorite authors are George R.R. Martin, Terry Pratchett and Orson Scott Card, and he writes strategy games in Java for fun.

One of the complaints made against fan fiction (such as by George R.R. Martin) is that it infringes the copyright of the owner of the original work. In Martin’s words,

“The reasons most authors frown on fan fiction are legal. If you do not defend your copyright, legally the case can be made that you have abandoned it, and you lose all ability to protect your work.”

While a reasonable position to take, it does beg the question: is fan fiction a violation of copyright? If it is, I personally find it hard to fault Martin for his stance, though I am not sure I would agree with it. But if there is no copyright violation, then why take a hostile stance against fan fiction?

It is at this point that we turn to fair use, which is one of the better options for defending fan fiction on the copyright issue. For those of you not familiar with fair use (though that number is likely small given the author of this blog ;-)),

“In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Another way of putting this is that fair use is a defense against infringement. If your use qualifies under the definition above, and as defined more specifically in this section, then your use would not be considered an illegal infringement.”

Of course, as that source goes on, figuring out what exactly a “transformative purpose” is would be the main source of problems for conscientuous fanfiction authors; there is no detailed checklist of factors to go down and settle the matter. The broad categories suggested are commentary/criticism or parody, but proving that any individual work either does or does not fit into these categories is far from simple.
Still, it is safe to say that most fan fiction fails to meet the standard for fair use; it may be an entertaining story, but a Will Turner-Jack Sparrow pairing which otherwise basically follows the Pirates plot does not qualify as commentary or parody. But it is not an impossible standard for fan fiction to meet either; another Will/Jack story could qualify if it was deliberately written in protest for a lack of homosexual characters in the original work, at which point the author would have solid ground to defend themselves. Two works, both derived from the same original work, with the same basic change to it, could have a different legal status. Which leads to the conclusion that each work of fan fiction has to be evaluated on an individual basis to see if it violates the copyright of the original author, and that the intent of the author must be included in this evaluation.

Unfortunately, while that would be an ideal solution, there is far too much fan fiction for an author to reasonably try to keep track of which works are in violation and which are not; it’s simpler for authors to assume that fan fiction is a violation and, if they care enough, force fan fiction writers to defend themselves. If that is a good thing or not… is probably long enough to leave for another day 😉

Inspirational Quote:

“The best fantasy is written in the language of dreams. It is alive as dreams are alive, more real than real … for a moment at least … that long magic moment before we wake.
Fantasy is silver and scarlet, indigo and azure, obsidian veined with gold and lapis lazuli. Reality is plywood and plastic, done up in mud brown and olive drab. Fantasy tastes of habaneros and honey, cinnamon and cloves, rare red meat and wines as sweet as summer. Reality is beans and tofu, and ashes at the end. Reality is the strip malls of Burbank, the smokestacks of Cleveland, a parking garage in Newark. Fantasy is the towers of Minas Tirith, the ancient stones of Gormenghast, the halls of Camelot. Fantasy flies on the wings of Icarus, reality on Southwest Airlines. Why do our dreams become so much smaller when they finally come true?

We read fantasy to find the colors again, I think. To taste strong spices and hear the songs the sirens sang. There is something old and true in fantasy that speaks to something deep within us, to the child who dreamt that one day he would hunt the forests of the night, and feast beneath the hollow hills, and find a love to last forever somewhere south of Oz and north of Shangri-La.

They can keep their heaven. When I die, I’d sooner go to middle Earth.”
George R.R. Martin


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