We live in a world where fan communities–fandoms–are becoming increasingly popular. Fandoms fixate on a particular television show, band, movie, musical, anime, or other pop culture subject. Creation of content based on these fandoms has also become ubiquitous. People of all ages gather together on any number of fanfiction websites, ranging from social media sites that post stories and art, like Tumblr and Live Journal, to websites designed for fanfiction, like Fanfiction.net and Archive of Our Own. Some fandoms have even developed websites devoted entirely to fanfiction for a particular couple or desired couple, known to many as a “ship.”

When using characters and worlds created by other people, however, there are quite a few potential copyright issues. Fan creations have become so popular that some fandoms are even branching out and making money from their fanfiction and fan art roots. Yet getting the “rights” to your own work is a nightmare when you’ve used a couple from your favorite television show. Though some fandoms have successfully made the switch from unoriginal characters to new creations, many struggle with it.

Fanfiction and fan art are always going to be a part of fandom communities because they bring people together in a way so few things really can. These fandoms have created large communities all over the internet. “Harry Potter,” for instance, is still hugely popular in the fanfiction world, even though J. K. Rowling and Warner Brothers have successfully fought against fan creations.

What exactly are your rights when you take to your computer and write or draw that missing scene from “Once Upon a Time?”

The Official Word

According to a University of San Francisco law blog, fanfiction “can be considered a copyright violation under the Copyright Act of 1976, ” because the holder of the copyright has the right to distribute any derivative works based on an original creation. This often includes sequels, prequels, and art work.

One of the most famous cases of a fan-fiction author is that of J. D. California who penned a sequel to J. D. Salinger’s “Catcher in the Rye” and called it “60 Years Later: Coming through the Rye.” During this case, it was found that characters were granted copyright protection–in this case, Holden Caulfield, an iconic character in Salinger’s novel.

Many would argue that fair use may actually protect fan creations like artwork and stories from being copyright infringement, but many authors have still successfully fought that claim. Legal challenges tend to come more from book authors than movie or television show creators for pretty pragmatic reasons–fandoms often boost the number of viewers for television shows.

So why are so many publishers now actively looking for fan-fiction authors? In part because these stories are sometimes better or more successful than the canonical source material. One cannot ignore the success of recent fanfiction-based novels like “50 Shades of Grey.” Rebecca E. Hoffman for Bloomberg describes how “50 Shades” got around the fan-fiction ties:

But before they became ‘real’ books, they were a Twilight fan fiction series called ‘Master of the Universe.’ ‘MotU’ appeared on fanfiction.net and–with Twilight references removed and character names changed–was later published as three e-books by an Australian company that specializes in fan fiction publishing. Vintage Books, a subdivision of Random House, which ultimately published the Fifty Shades trilogy, maintains that the material is original and no longer based on ‘Twilight.’

According to a Washington Post interview with Jennifer Bersgtrom, Vice President and Publisher of Gallery Books, fanfiction is simply becoming a way to recruit talented authors. She stated, “fanfiction has absolutely become part of the fiber of what we publish. This is changing at a time when traditional publishing needs it most.”

Most fanfiction is safe if it doesn’t criticize or parody the works in question. Even so, the Internet and Intellectual Policy Clinic at the University of San Francisco points out that the only way a person would get in trouble is if the person who holds the copyright ever sees the work:

It is clear though that the law surrounding fanfiction is highly dependent on the copyright owner actually enforcing their rights and prosecuting offenders of their copyright. In cases such as J.K. Rowling in which she is choosing particular pieces of work to prosecute while letting other works that violate her copyright be published, the law clearly sides with her.

The Legal Dos and Don’ts of Fanfiction

The Don’ts

The biggest rule you need to know to avoid getting into copyright hot water is to determine who exactly owns what you are writing about. Some authors simply do not like fanfiction and are very open about that fact. Vulture says that “some authors–George R.R. Martin, Anne Rice, and Diana Gabaldon, author of the Outlander series, among them–protest [fanfiction’s] appropriation of their creations and ask fans to refrain from writing it.” They mostly target websites based on the stories, but have targeted large forums as well.

Some fanfiction creators also have some problems in that they don’t know where to draw the line. Typically there are concerns about RPF or Real Person Fanfiction. Celebrities like Chris Colfer of “Glee” and Taylor Swift have said that they find fanfiction and fan art uncomfortable, especially when it is explicit in nature. Swift has even gone so far as to get fan creations taken off of Etsy, though that may be more of a business decision.

Read More: Taylor Swift vs. Etsy Vendors: Singer Trademarks Song Phrases

It isn’t always easy, however, as every writer, designer, and artist has the right to make the choice for themselves where they want the line drawn and whether or not to take legal action. It is then up to the forum and fandom at large to enforce that line as they see fit, an important thing to remember when dealing with fanfiction and fan art.

Nonetheless, as Hugh Howey told Desert News National: “Just as there have been independent filmmakers [who] enrich the film industry, there are and will be independent authors who experiment and write groundbreaking works.”

The Dos

If you truly love a fictional couple, a storyline, or a show, you might still want to write fanfiction or create fan art, and there is truly nothing wrong with that. However, you should take note of a few rules to keep yourself out of the limelight and out of trouble.

1. Follow the rules of the online forum: Most forums that post fanfiction and/or fanart have been around for a long time for a reason: they know how to skirt the line. Look at the rules and FAQs of a website before you upload your latest “Shameless” story.
2. When in doubt, go for public domain: The Daily Beast points out that there is a lot of Jane Austen fanfiction. Why? Her works are all part of the public domain, meaning you can use the characters however you see fit. According to Teaching Copyright, public domain occurs “70 years after the death of author, or, for corporate works, anonymous works, or works for hire, 95 years from the date of publication or 120 years from the date of creation, whichever expires first.” If you are using something a little more modern, use a disclaimer, meaning make sure that you state clearly that you don’t “own” whatever you are writing about.
3. Take it down if you need to: Online musical theater troupe Team StarKid famously took down A Very Potter Musical when they feared that Warner Brothers would sue them. They re-posted the material after some severe edits and a disclaimer on the video–and then went on to make two more and were invited to the screening of the final movie. Most creators or agents will start with a mailing or a polite request, and you should probably grant it.

4. Don’t make money from it: This might seem like a no-brainer, but do not make money from your work if it’s based on someone else’s creations. Don’t sell your art or stories, do not get sponsors, and don’t use advertisements. You are saving yourself a load of potential headaches from the people who own the content.

Conclusion

In the end, the best thing to remember about fanfiction, fan art, and anything derived in any other universe is this: it is typically an infringement of the copyright holder. With that said, it is usually done with the best of intentions by fans and it often continues and strengthens the importance of the story being told.

When creating within a fandom, use your head to make decisions about what is appropriate and what isn’t appropriate and you likely won’t find yourself in trouble. It’s also important to note that if you are creative enough to take pre-existing characters and create new stories, you are probably creative enough to make your own original characters.

Resources

Primary

U.S. Copyright Office: Duration of Copyright

Additional

Bloomberg BNA: It’s Never Black or White: Is Fanfiction Fair Use?

Desert News National: With Fanfiction, is Publishing Following in Hollywood’s Unoriginal Footsteps?

Teaching Copyright:  Public Domain Frequently Asked Questions

Washington Post: From ‘Fifty Shades’ to ‘After’: Why publishers Want Fanfiction to Go Mainstream

University of San Francisco Law Blog: Fanfiction and Copyright Law

Vulture: Fanfiction Guide

CNN: Lawsuit Targets ‘Rip-Off’ of ‘Catcher in the Rye’

Daily Beast: Why Fanfiction is the Future of Publishing

Geeky News: Unauthorized Starkid Production Brings Wrath

The New York Times: Rowling Wins Lawsuit Against Potter Lexicon

Fox News: How Harry Potter Superfans Won a Battle for Fair-trade Chocolate

People: Fifty Shades of Grey and Nine More Examples of When Fanfiction Became Blockbusters

USA Today: Must-Read Fanfiction From ‘Doctor Who,’ ‘Star Trek,’ ‘Farscape’

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Re-Writing the Classics: What Are Your Fanfiction Rights? appeared first on Law Street.

With the success of recent television shows like ABC’s “How to Get Away with Murder” and “Black-ish,” many in the industry are starting to reevaluate their positions on race in television. The “old guard” of television often said that the American people wouldn’t watch a television show that heavily featured characters who weren’t white — often relegating anyone who doesn’t fit into that box to a life of being the sidekick, or worse yet, losing all sense of identity and being whitewashed.

Characters on television shows need to be interesting, developed, and sympathetic. The diversity of a character does not only fall in ethnic background, but it is certainly a way to give that character a deeper history. Still — as someone who regularly watches television it is clear that on-screen diversity on screen is growing, especially when you consider shows like “Scandal”, “Glee”, “Grey’s Anatomy,” and “Orange is the New Black”. It is pretty much expected now for a show to have one character who doesn’t fall into the cis-gendered straight white category.

And we are noticing — think back to all of the press and negative coverage that “Girls” received (and still receives) because of its lack of ethnic diversity. But “Girls” is just one in a long line of history.

Still, one must consider some of the most popular television shows in the last two decades. These shows, the ones that get the push from the individual stations and the media, are still white. “Seinfeld,” “Friends,” “Will & Grace,” “How I Met Your Mother,” and “Sex and the City” were all the most popular shows when they were airing, and they all featured white friends in New York City.

But why is this still happening when, according to Nielsen, white people don’t even make up the majority of the viewing audience?

“It’s not only that the African-American audience watches more TV, but it’s substantially more — two hours over other groups,” Ron Simon, head curator at the Paley Center for Media, told theGrio in an interview. “It’s known in the industry, but it certainly hasn’t gotten the attention I think that it deserves.”

Race and Watching Habits

Race is a social construct — that is the first thing we need to realize if we are going to discuss race at all. It is a way to categorize people into neat groups.

Except those groups aren’t so neat anymore.

Here are some pretty startling statistics about race and television in the United States:

This is a problem. When you look at the statistics, stations like Mundo, which focuses on the Latino community, or BET, which focuses on the black community, sometimes overtake shows on mainstream networks that are fledgling. According to the report, African Americans watch 37 percent more television than other demographics, which means that they are watching shows that don’t always represent them in the best light. Or worse — they are watching shows that don’t represent them at all.

Whitewashing

Whitewashing happens when an actor or actress is completely stripped of his or her ethnic qualities and either declared or assumed white by the writers and viewers of the show. Whitewashing is a dangerous happenstance because it not only eliminates the ethnic identity of the actors, but it also impacts the fans of the show. As we become more and more connected to our television shows through social media, and we know more and more about the actors, it seems harmful to completely remove their cultures. However, what about the people who don’t follow the actors and know their backstories — they simply never realize that they are watching someone who isn’t just white.

“Vaguely Eurasian”

One of the better shows on television when it comes to portraying diversity is Fox’s “Glee.” The show has been groundbreaking (though sometimes problematic) in giving light to all different types of characters. There’s no doubt that Kurt Hummel will go down as one of the revolutionary LGBT characters on television. But what about his boyfriend? Darren Criss, the actor who plays Blaine Anderson, is half Irish from his father and Filipino from his mother. Early in his tenure on the show, he is referred to as “Vaguely-Eurasian” by another character. Vaguely-Eurasian. It seems like a slap in the face because Darren Criss is clearly part Filipino. He has almond eyes with extravagant lashes, medium gold toned skin, and thick black curls. Many just assumed his character had the same history that he did.

Until the next season, when they cast Matt Bomer as his brother. Matt Bomer is a fantastic actor, but he is English mixed with Welsh, Scottish, and German. Now this wouldn’t be a problem if the show had given context for his family, but they haven’t. One cannot assume that there was a remarriage or they are step brothers. They are called brothers in canon, so that is what the viewer must take them to be. Could it possibly be that Fox didn’t want to push the boundaries by showing a couple that was gay AND two different races? Not so fast — another couple on the show, Brittany and Santana, fit that bill. So why whitewash Blaine Anderson? Is it because Darren Criss could pass as white? Is it because Darren Criss is the heartthrob of the show, and the heartthrob couldn’t possibly be anything other than white? Is it a push from Fox? Or are they not whitewashing him, just not talking about it? Glee isn’t the only show that does it, and it isn’t always a problem. But there is the question: why did they choose to whitewash him on a show where diversity is celebrated?

Awards and the Changing Times

The Emmy Awards are always a point of contention for viewers of television shows. The same complaints always arise during nominations — “why wasn’t [insert name here] nominated?” or, “Wow! [insert name here] was snubbed!”

One of the biggest snubs of the 2014 Emmys was of sitcom actress Mindy Kaling.

Kaling was a surefire nomination for her show “The Mindy Project” because she had been tapped to announce the nominees. When it came time to announce the category she was supposed to be nominated in, her name was nowhere to be found.

Is this a case of racism on television, or were there just more worthy nominees?

While we can’t get into the mind of the voters it is important to note that there has been only one non-white woman who has won an Emmy for acting in a leading comedic role: America Ferrera as Ugly Betty.

In fact, 2013 was the first time ever an African American woman won an Emmy for Best Actress in a Drama: Kerry Washington for “Scandal.”

Why don’t we have more diversity on TV?

Could the lack of diversity on television be caused by a lack of diversity among its writers? That is certainly a possibility. Shonda Rhimes is one of the only black female writers to get a television show of her own, and she now has three: “Grey’s Anatomy”, “Scandal,” and “How to Get Away With Murder” – all of which have strong, diverse characters.

So what are we to do to encourage more representation on television? Part of it is up to the viewer: demand it. Don’t watch shows that feature people of color in supporting roles that are degrading. Tweet about it to the companies, the actors, and the writers. Support shows that do provide a realistic depiction of diversity.

We need to also encourage more children of color to go into the arts, whether it be acting, writing, or directing.

The steps aren’t going to happen overnight, sadly, and the momentum is shifting — we just need to continue pushing.

Resources

Primary 

Critical Media Project

Center for Media Literacy: Does TV Shape Ethnic Images?

Additional

Salon: Whitewashed TV Isn’t Just Racist. It’s Boring! 

The New York Times: Minorities in Movies and Television

Grio: Nielsen Report Confirms Blacks Watch More TV Than Any Other Group

Hollywood Reporter: The Emmy’s Rocky Race Relations

Lee & Low Books: Where’s the Diversity? A Look at the Emmy Awards and TV 

San Jose Mercury News: Fall TV 2014: Diversity, is all the Rage–Finally

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Diversity on TV: The New Normal? appeared first on Law Street.