No one knows if fan fiction is hazardous to authors: Unsettling Futures - Issue #10
There's a piece of legal advice that's given to almost every author and would-be author in science fiction and fantasy – don't read fanfics of your own work!
If you do, so the story goes, and you happen to either use the ideas there, or it's just kinda similar to something you were already working on, you could be opening yourself up to serious consequences!
What kind of consequences?
Y'know, bad ones! You might get sued! Or you might have to scrap the whole book! It totally happened to a friend of my cousin, she had to literally eat a whole book manuscript and the fan owns her house now and she lives in a refrigerator box under a bridge and writes three-volume fantasy trilogies for spare change on the streets!
I kid, but these days the advice is totally divorced from its original context.
And even if it wasn't, most people get the context wrong. The original story is badly misremembered, despite it being well within living memory. Even the people who were there misrepresent what happened, or don't remember anymore.
So let's look at the advice, the actual incident and its context, and the howling storm of uncertainty that still surrounds fanfic's legal status today.
The (not really legal) advice
You see it in various formulations, but it's pretty simple – once you're a published writer, don't read fanfics of your own work. It can get you in legal trouble.
On this Quora page for "Do writers read fanfiction of their own work?" the person who gave the top-voted answer is longtime fantasy author Mercedes Lackey.
I do know that all of the authors under my agent are ordered never to read it. He had to deal with a very upsetting and unfortunate situation in the case of Marion Zimmer Bradley that resulted in the loss of a lot of time and effort and the conclusion that there is one Darkover book that will never be published (and I believe the manuscript was destroyed) because of some accusations of 'idea theft.'
It doesn’t matter that it is a truism that 'ideas cannot be copyrighted nor plagiarized,' all that matters is that someone can drag you into court over it, and even when you win, you’ve lost time and money you’ll never get back.
So that's it, right? A fan will "drag you into court" and even if you win (and notice that Marion Zimmer Bradley lost an entire book that "will never be published"), so obviously you should never, ever, ever read fanfics of your stuff!
And this is, in fact, the ur-text, the incident that has inspired this advice for almost 30 years now!
But Lackey's version of events is not entirely correct.
To understand what actually happened, or as much as can be understood, we need to know some context.
1980s fanfiction and shared world books
Beyond fanfic, the other 1980s/90s phenomenon we have to discuss here is the popularity of shared universe books. That's the first volume of Thieves' World up there, one of the first of the trend, from 1979. The decade was stuffed with these things! Before A Song of Ice and Fire, George R.R. Martin was orchestrating a whole print universe of superheroes in the Wild Cards books. There was the Heroes in Hell series, and Larry Niven's Man-Kzin War, and C.J. Cherryh's Merovingian Nights.
All of these published half a dozen or more volumes – if not exactly raking in awards and acclaim (I still retain a fondness for Wild Cards, uneven as it was, but Heroes in Hell was uuuuuggggghhhhh…) they were reliable sellers.
About half of them were original settings, purpose-built as shared universes, but others, like Man-Kzin War and Merovingian Nights were a way to allow other writers to play in someone else's sandbox. All of them, however, were professional projects. Most solicited their writers from among the series editor's pro-writer friends and acquaintances, or maybe took submissions in the traditional way, like magazines did.
Except for Marion Zimmer Bradley's Darkover anthologies. And that's where things start to get complicated.
Marion Zimmer Bradley and fanfic
Fanfiction was very, very different before the internet. The main difference was, you usually had to go out of your way to get it, even to subscribe to a publication.
Not that anyone was selling it for money! Wouldn't want the publishers to come down like a ton of bricks on anyone selling knock-off Tolkien continuations, no sir!
But to get fanfic on a reliable basis, you had to get access to fanzines. The price often just covered postage; these were Xeroxed labours of love that had circulations in the dozens, maybe the hundreds. You could also see tables of them at cons; I vaguely remember seeing a few at my first cons in the early 2000s, just as the medium was being finally killed off by the internet and sites like fanfiction.net. The zines didn't just carry fanfic, there was also fan news, essays, poetry, and letters. But before the mid-1990s, this was ground zero for fanfic.
From this point on, a lot of info here is coming from this shockingly well-researched article on fanlore.org, and a Jim C. Hines blog post from 2010 which covered much of the same ground, and The Contraband Incident by Catherine Coker, which includes then-current correspondence with some of the people involved. I've gone back to some of the original posts where possible, but many of them are lost amid dead blogs and the slow rot of Livejournal sites.
Marion Zimmer Bradley is best known today for the scandal around her own sexual abuse of her children, and for enabling her pedophile husband, Walter Breen. But in the 1980s and early 1990s, this was not common knowledge in fandom, and even for those who knew about Breen, well, Bradley had divorced him in the 1970s. She was known primarily for her massively successful The Mists of Avalon and its sequels, a feminist and female-centered re-telling of the Arthurian myths.
But before Avalon was Darkover.
I have not read any of the (vast) Darkover series, but it was part of a then-popular subgenre, the deniable-fantasy. Before Terry Brooks and Stephen R. Donaldson more or less forced the epic fantasy genre into being in the late 1970s, secondary world fantasy was marginalized and didn't have a shelf of its own in the bookstores. Science fiction reigned supreme! But people wanted that Lord of the Rings/Conan/Fafhrd and the Grey Mouser hit, so we got books where humans have colonized another planet, regressed to a medieval state of technology, and maybe, I dunno, ride dragons but they're genetically modified alien life forms? And there's magic, but it's psychic powers and John W. Campbell has been insisting all his writers use psi powers for decades, so everyone accepts that too. (See also: Julian May's Pliocene Exile.)
The first Darkover stories appeared in the late 1950s and the series kept building steam through the 1960s and '70s, accumulating quite the fanbase. There were multiple fan clubs and a dedicated Darkover fan convention. Much of this activity centred around the Friends of Darkover group.
And Bradley was involved with this fandom. Probably to an unhealthy degree. She had her own newsletter, she wrote openly about reading and writing fanfic, she seems to have read darn near every Darkover-related fanzine there was. In fact, according to The Contraband Incident, "The custom at the time was to send Bradley a copy of such a fannish work…"
So when it came time to crank out one of those profitable shared-world anthology books for DAW, Bradley didn't go to her fellow pro authors, or even put out a call for general submissions. She turned to the fanfic writers. According to Coker:
From the 1970s through the early 1990s, Bradley actively engaged with her fans by editing their stories and publishing them in fanzines, holding contests for fan works created in her universe, and finally professionally publishing, with DAW Books, 12 anthologies of fan-written stories.
Bradley also, on one occasion, re-wrote a fanfic she particularly liked and published it with a dual byline.
So it was in this context in 1992 that Bradley, or her posse of assistants (there is some debate as to how much actual writing Bradley was doing at this point due to health issues) approached writer Jean Lamb, who had written a fan novel called Masks some years earlier.
It's pretty much undisputed that this is the order of events:
1) Bradley had read Lamb's story (because she read ALLLLLLLL the fanfic)
2) Bradley decided she wanted to use some idea or portion of Lamb's story in her upcoming novel, Contraband
3) Lamb was offered some money and an acknowledgement
4) Lamb tried to negotiate
5) Everything went to hell
Here's how Lamb recalled it in an email to Coker in 2010:
I was unable to determine how much of the novel I wrote was going to be used. The offer consisted of a few hundred dollars and a mention in a dedication, in exchange for my signing an agreement not to sue for copyright infringement. This seemed a bit open-ended, and I consulted with my agent…he didn't think much of it, given that my agreement not to sue did not mention how much or how little of the book was going to be used. I then responded with a counteroffer, which asked for either more money or a shared byline, unless the amount of my work being used could be clarified. If Ms. Bradley was going to use some ideas from the book, then she was free to do so without any cost, but if there was going to be a lot of my writing used, then I wanted to be compensated fairly.
And here's how Bradley characterized it in a letter to Writer's Digest in 1993:
…one of the fans wrote a story, using my world and my characters, that overlapped the setting I was using for my next Darkover novel. Since she had sent me a copy of her fanzine, and I had read it, my publisher will not publish my novel set during that time period, and I am now out several years’ work, as well as the cost of inconvenience of having a lawyer deal with this matter.
Lamb is always characterized simply as "the fan" or "a fanfiction writer" but note that she mentions her agent. In fact, she'd already been published in one of the previous Darkover anthologies, and she'd later be published in a Man-Kzin Wars anthology, and she's got a number of indie books out there now. So this not a case of someone who was writing purely for fun – Lamb had aspirations of her own.
If a big name author you admired suddenly thought your story was worth something, what kind of an idiot would you be to sign the whole thing away for no more credit than an acknowledgment and a few hundred dollars?
So Lamb's (reasonable) attempt to negotiate for credit, or at least see how much of her work was going to be used in Bradley's book, seems to have gotten Bradley's back up. At some point, Bradley definitely called a lawyer in; it is less clear whether Lamb ever did. She says she did not.
Contraband never happened; Bradley's assertion that her publisher wouldn't move forward is denied by DAW editor Betsey Wolheim, who said it was Bradley's decision to pull the title from the schedule.
Bradley didn't just cancel Contraband. She canned any future fan-written Darkover anthologies and rescinded her permission to write any fanfiction in her universe. This resulted in a vicious backlash against Lamb within the tightly-knit world of Darkover fandom.
Whatever happened, it did not result in a lawsuit. I have seen it referred to as being "settled out of court" but there was really nothing to settle. What appears to have happened is a few harrumphing letters were sent on lawyer's stationary – anyone who works in the media will recognize this as a sort of threat display, one that is often deployed when there is no case but someone with deep pockets wants someone with fewer resources to shut up and go away. No judge ever ruled on anything, no jury brought in a verdict, there was not even an out of court settlement.
So, let's look at the legend again:
"Published authors should never, ever read fanfic, because one time a crazy fan sued an author over 'idea theft,' and the book had to be pulled."
That is not what happened. There was no fucking idea theft, per Mercedes Lackey's Quora answer, it was a failed commercial negotiation! And 'idea theft' is not a legal thing!
What happened was a very, very specific confluence of events, that involved an author who was immersed so deeply in her own fan community that she not only read the fanfics, but she edited them, purchased them for anthologies, and used her fans as collaborators.
So if there's a solid lesson here, it's DON'T DO THAT SPECIFIC THING!
But should you read the fanfics?
Hell, I don't know.
No one knows. In North America, there is no settled law on this matter, period.
It has been pointed out that we still don't even know whether, or to what extent, fanfiction is legal, but some of it – maybe a lot of it – might be. And by "legal" I mean there could be a case for actually publishing some of it, for profit. There has never been a court proceeding involving a fan, for example, attempting to market their work without changing the names, Fifty Shades of Grey style. There is a good chance that a court might find sufficiently transformative and/or parodic works to be legally distinct enough from the original even without filing off the serial numbers – which means that notorious bizarro fanfics like My Immortal and HHHHHHHHHHHHHHHHHHHHHHHHHHHHHH stand a much better chance of being consider fair use than plain vanilla continuations of Harry and Hermione and Ron's adventures.
There is case law on transformative use in literary adaptations, such as The Wind Done Gone, which is Gone With the Wind told from the point of view of a slave from Scarlett O'Hara's plantation. And there's a long tradition of literary works drawing on older books in the public domain, from Wide Sargasso Sea to Wicked. But the 1990s/early 2000s controversies over fanfiction, including the Contraband affair, have put up a firm cultural wall between fanfic and pro writing. Never the twain shall meet.
So all we can say is that "never read the fanfics!" is folk law. It is a shibboleth. It might be good advice; there are probably situations where it is. But it is not law, it is not certain. It is a campfire tale about a fan with a hook for a hand.
Nothing in this newsletter is legal advice. But neither is anything anyone else has ever told you about reading the fanfics, unless your agent is a lawyer specializing in copyright law. So if your eye wandered across a high school AU of your epic fantasy characters, I would suggest you can take the anxiety down a notch or two.
Obligatory End Notes
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