Fan Fiction Writers Face Nonfiction Legal Hurdles Fans who imagine new stories for their favorite characters have a new defender, and she'll help them explore strange new worlds.

Fan Fiction Writers Face Nonfiction Legal Hurdles

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I'm going to take it as given that you've heard of fan fiction, where super fans of a book, a movie, a TV show, or, in some cases, of real people, if newscasters count as real people, take the characters they love and make them do things their original creators never dreamed of, and yes, that sometimes includes loving on each other. You might not know that fan fiction - even though it's been available on the Internet since the beginning - it still occupies a somewhat murky legal area.

Some fan fiction writers report getting cease-and-desist letters from the writers whose work they use as a jumping-off point, or perhaps what the original writers would call, for whose work they steal. That's where Rebecca Tushnet comes in. She's a professor of law at Georgetown, a writer of fan fiction, and a board member of a web-based organization that's at least partly devoted to helping fan-fiction writers fend off claims of copyright infringement. Thanks for coming on, professor.

Professor REBECCA TUSHNET (Intellectual Property, Georgetown University School of Law): Thank you for having me.

PESCA: So, do you anticipate that there are going to be problems? Or are there already problems with fan fiction?

Prof. TUSHNET: Well, there are a lot of misconceptions. There are occasional cease-and-desist letters, but basically, our aim on the legal front is to make clear that the law allows for fair use of copyrighted works, including works of fan fiction, and to reassure fans that they're doing something OK, and reassure copyright owners that their copyrights are not in danger from fans.

PESCA: I would assume, just because on the Internet there're so many instances of this, how could it really be illegal? It doesn't seem like something - something that people trade in underground communities. Is there any argument that would say that just posting my own fan fiction on my own website could, in fact, be illegal if I'm not trying to make a buck off of it?

Prof. TUSHNET: Well, whether you're making a commercial uses only a part of a serious inquiry. The thing is that copyright law can be fuzzy, and hard for a lay person to understand. So, there's a lot of myths out there on everybody's side, and copyright owners sometimes can make overreaching claims.

PESCA: Right, so, I mean, it just seems to me, like, if I think of a scenario where Captain Kirk and Pac - Captain Picard team up to fight the Borg, if I think of that, that's legal. Probably if I write it down for myself, that's legal. If I post it on a website, all of a sudden that becomes illegal in anyone's mind?

Prof. TUSHNET: What has happened is that the Internet has made persistent and findable things that are ordinary human creative activities, you're absolutely right, it's the same thing functionally, but because it's on the Internet, we have new audiences and sometimes those audiences are the copyright owners.

PESCA: Are there any show creators or famous writers who have particularly fought with fan fiction people? And then on the other side, which writers have really embraced fan fiction?

Prof. TUSHNET: Well, in terms of embracing us, give a moment to the Organization for Transformative Works, our own Naomi Novik, our founder and chair of the board, who's a New York Times bestselling author, whose books have been optioned by Peter Jackson. And she is a great supporter of fan fiction, and there are various people who have complained about particular works of fan fiction, or said that in general they don't allow it, Anne Rice, certainly one of those.

PESCA: Mm-hm.

Prof. TUSHNET: But I think there's a real growing awareness that not only can you not suppress others people creativity if you're in the business of expressing your own, but it's not that great an idea in terms of relations with your fans, who really want to be engaged and want to support you.

PESCA: Well, let's delve into the world of fan fiction. There are sub strains of them. One of them is something called - is it called curtain fic?

(Soundbite of laughter)

Prof. TUSHNET: Some people call it that, it's basically - the idea is, stories of domestic life, so, if you have the characters from "CSI."

PESCA: Right.

Prof. TUSHNET: Right. When we watch them on screen. We spend all this time on their professional lives, but they go home, and maybe they have the same domestic issues that we do, in contract to their very exciting public life. And so, there's a little bit of a thrill in writing about, you know, the domestic. So, curtain fic is short for the characters spend some time picking up curtains, like you or I might.

PESCA: Well, that was surprising. I didn't expect that to happen, but I did expect they'd be writing about the sex lives of the characters. What are some of these specific ways to write about sex lives of characters, who aren't even depicted as sexual in their original incarnations?

Prof. TUSHNET: The same as you talk about the - say, a politician's sex life. You expect that other people have sex, and you know, there are only limited ways to do it, although there are very many creative variations.

(Soundbite of laughter)

Prof. TUSHNET: In life as in fiction, and people run through them.

PESCA: But with politicians I almost never say, oh, imagine if Eliot Spitzer got pregnant, and that shows up a lot in fan fiction, men getting pregnant.

Prof. TUSHNET: I wouldn't say it's a lot.


Prof. TUSHNET: It's definitely - you know, it's definitely there. It's a sub genre. It's sort of like alien-invasions stories.

PESCA: Right. I mean, it's big enough that they have a name for it, impreg (ph).

Prof. TUSHNET: Yes, from male pregnancy.

PESCA: Yeah.

Prof. TUSHNET: And some people think that this is about - these writers are mostly women, and it's about sort of praying with a different body, and sort of putting a male body in the position that women are expected to be in. And when you put it in the male body, suddenly a lot of things that seem ordinary seem extraordinary. It's a way of talking about our experience of our bodies.

PESCA: So, why do predominantly women write fan fiction, do you think?

Prof. TUSHNET: Well, there are dissertations on this, so - and any generalization I make will be wildly wrong for at least some people.


Prof. TUSHNET: I think there are a number of explanations, one of which has to do with the value of community. You find a group of people who are interested in the same thing you are, whether it's "Star Wars," or "Buffy," or some other cultural artifact, and you start talking about it. And one of your subjects is, what if? And people start telling each other stories. And that's a thing that women have done a lot, especially in the Internet age, but even before that, there were fan communities of women who tended to produce more fan fiction. There's also, I think, an idea that a lot of mainstream entertainment is designed for, you know, 18 to 30-year-oldmmales. And things that women are more likely to be interested in are more likely to be downplayed.

PESCA: What are we to make of this subgenre of fan fiction that involves people who are on TV, but as newscasters or other nonfiction people? Why is that fan fiction and not just making up stories about real people?

Prof. TUSHNET: Well, there are fuzzy boundaries, you know? One thing slides into another. So, in fact, there's actually a subgenre of "Star Trek" stories, where the characters wake up, and they've magically, or technologically, or somehow, been switched into the actors' roles. So, the actual Captain Kirk is treated like William Shatner, and William Shatner finds himself on the deck of the Enterprise and has to deal. And that's actually quite funny.

So, I think once people start to do that, they sometimes decide, well, let me see what else I can play with. These days, a public figure is much more clearly a character. I mean, we have ideas about what these people are really like. But Jon Stewart and Stephen Colbert are playing Jon Stewart and Stephen Colbert. So, how does that make them different from William Shatner playing Captain Kirk? They have the same name...

PESCA: Yeah.

Prof. TUSHNET: OK. But there's actually some really interesting stuff going on about the nature of celebrity, and what does it mean to be a person, or behave in a certain way, in private, maybe, and differently in public? And fiction is a great way of addressing that.

PESCA: I was wondering, is every - even however obscure and canceled over three episodes, but basically, every sitcom ever has someone writing fan fiction about it? Or is there an opportunity for me to be the first guy to do McLean Stevenson in "Hello, Larry" fan fiction?

Prof. TUSHNET: I think you could, you know, open up a niche. I have to say, there is a yearly, organized fiction exchange for rare fandoms called the Yuletide Rare Fandom. And you sign up, and you say, I want "Hello, Larry." And someone else out there provides you a story.

PESCA: My editor, Tricia, is on She finds no "Hello, Larry." Trish, type in "Shasta McNasty." That was a canceled show from, like, a year and a half ago.

(Soundbite of laughter)

PESCA: I don't think she's finding anything, either. But I want to thank you, Rebecca Tushnet of Georgetown Law, and also, of course, of the Organization for Transformative Work. We can report no "Shasta McNasty" fan fiction. Thank you, Rebecca.

Prof. TUSHNET: All right, thanks.

PESCA: I'm blowing the whistle on myself. "Hello, Larry," that's kind of hack. That's the go-to comedy, failed-sitcom, hack example. And "Shasta McNasty" is just obscure.

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