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2019 Finding the Path Through the Ethics of Fanfiction: An analysis of the ethical ramifications of fan-written fiction works Victoria Fidler

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THE FLORIDA STATE UNIVERSITY

COLLEGE OF ARTS & SCIENCES

FINDING THE PATH THROUGH THE ETHICS OF FANFICTION:

AN ANALYSIS OF THE ETHICAL RAMIFICATIONS OF FAN-WRITTEN FICTION

WORKS

By

VICTORIA FIDLER

A Thesis submitted to the Department of English in partial fulfillment of the requirements for graduation with Honors in the Major

Degree Awarded: Spring, 2019 Finding the Path Through the Ethics of Fanfiction | Fidler 2

The members of the Defense Committee approve the thesis of Victoria Fidler defended on April 17, 2019.

______Dr. Rhea Estelle Lathan Thesis Director

______Dr. Jennifer Proffitt Outside Committee Member

______Dr. Michael Neal Committee Member

Finding the Path Through the Ethics of Fanfiction | Fidler 3

Abstract

The purpose of my honors thesis is to analyze the ethics of fanfiction. This study could benefit the continued creative participation in the fandom community and limit content and perceived illegal or unethical perspectives. By studying fanfiction’s place between derivative and transformative use and comparing copyright and fair uses as it relates to fanfiction, I explore and document fanfiction’s legal concerns. I also examine celebrity and public figure rights to privacy to determine if Real Person Fiction, a subcategory of fanfiction, is a violation of their consent. In terms of the ethics of the mature content and themes within fanfiction, I attempt to dispel misconceptions and address the issue of access for minors. By identifying these ethical dilemmas regarding fanfiction, the archival sites, and writers will be able to retain their freedom of creativity without encroaching up the intellectual property rights of the copyright owners and others in the publishing field.

Finding the Path Through the Ethics of Fanfiction | Fidler 4

Table of Contents ABSTRACT ...... 3 INTRODUCTION ...... 5

DEFINITIONS ...... 6 FANFICTION AS A DERIVATIVE WORK...... 9 DISPELLING MISCONCEPTIONS WITH STATISTICS ...... 10 HISTORY OF FANFICTION ...... 12 DEMOGRAPHICS ...... 14 METHODOLOGY ...... 15 LEGALITY ...... 17

COPYRIGHT, FAIR USE, AND TRANSFORMATIVENESS ...... 18 THE COMMERCIALIZATION OF FANFICTION ...... 26 ETHICS ...... 30

ETHICAL FRAMEWORK ...... 31 RATING AND TAGGING SYSTEMS ...... 32 LIFTING STEREOTYPES: UNORIGINALITY, OBSCENITY, AND VIOLENCE ...... 34 INTERNET SUPERVISION AND CENSORSHIP OF DIGITAL LIBRARIES ...... 38 REAL PERSON FICTION ...... 41 CONCLUSION ...... 43 STATISTICS ...... 44 WORKS CITED ...... 45

Finding the Path Through the Ethics of Fanfiction | Fidler 5

Introduction

Fanfiction – also known as “fanfic” when referring to the works themselves – is an online genre of fiction using previously published characters, settings, or entire universes, written by fans of such works most times without the original author’s permission. The ethical ramifications of fanfiction, in general, are coming under increased scrutiny because of fanfiction’s growing mainstream appearances through interview mentions and occasional publication. Many studios, production companies, producers, editors, authors, and even actors have taken a stance on the ethically gray genre that is fanfiction. Katherine Applegate, successful author of the Anamorphs series, thanked fanfic writers in her last book for being an audience that gave back as well as their loyalty (158). Tyler Posey, who plays Scott McCall in the television series Teen Wolf, called it “a bizarre, weird, twisted thing” (Posey, Tyler). Jennifer Bergstrom, senior vice president and publisher of Gallery Books, a division of Simon & Schuster, told The Washington

Post that fanfiction has become a part of what they publish and that her field is “changing at a time when traditional publishing needs it most” (Contrera).

An ethical analysis of fanfiction reveals two main areas of contention: the legality of its existence and use, and the ethics of the content. This analysis includes the evaluation of court cases, the fanfiction community via social media observation, and research using scholarly and journalistic sources. In identifying the problems those outside of fandoms have with fanfiction, the community can be better prepared to protect the newest medium of interactive literature.

First, I will define terms that are important to the discussion of fanfiction in terms of legality and ethics. Then, I will describe how the genre of fanfiction is currently defined according to U.S. law followed by an examination of fanfiction statistics to dispel misconceptions many hold with regard to fanfiction. Next, I will outline the general history and Finding the Path Through the Ethics of Fanfiction | Fidler 6

evolution of fanfiction to provide background for later discussion to demonstrate that it is not fanfiction itself that causes many legal and ethical issues, but its new form as a widely available digital format. Finally, I will identify the main demographic that participates in fanfiction communities and confirm that the genre is only going to grow with the newer generations. This means that fanfiction is not going to fade out but instead be integrated into various fields as its readers and writers move into the professional world.

Definitions

Fanfiction is a subtype of fanwork, a creative work produced by fans and intended for fan consumption. Fanworks can include works that are written, like fanfiction, visual, video, audio, print, or archived as websites (“Fanwork”). A community of fans who create fanworks can be described as a fandom, though the word is usually used in conjunction with a specific author, book, movie, TV series, etc. (“Fandom”). For example, according to Tumblr’s Content team on the blog Fandometrics, a few of the more popular fandoms at the moment are the Miraculous:

Tales of Ladybug and Cat Noir fandom (thefandometrics “TV Shows”), the Boku no Hero

Academia fandom (thefandometrics “Anime & Manga”), and the Marvel fandom

(thefandometrics “Movies”). These are fandoms that have had the most mentions on Tumblr.

Within the fandom community, there has emerged an assortment of jargon. The particular terms important to an analysis of fanfiction ethics are canon, fanon, headcanon, beta, trigger warnings, PWP, hurt/comfort, shipping, slash, and Real Person Fiction. These are not academically defined terms but rather a set of learned slang one can only discover by being a part of the community. They can be found on websites that are not peer-reviewed such as Urban

Dictionary and Fanlore, the latter of which I will be citing because of the lack of academic sources. I will be using these terms in my examination of the ethics of fanfiction. Finding the Path Through the Ethics of Fanfiction | Fidler 7

Canon, Fanon, and Headcanon

Canon, fanon, and headcanon will be used in the discussion of copyright infringement because they deal with the content that is being used and manipulated to create fanfiction. Canon is the official material that is a part of the universe within the original published work (“Canon”).

While fanfiction is rarely if ever regarded as canonical, certain ideas become widely accepted throughout the fandom. These ideas are referred to as fanon (“Fanon”). The ideas, concepts, and interpretations accepted by some or merely one fan is considered headcanon (“Headcanon”). The fact that Hermione Granger married Ron Weasley is Harry Potter canon, that she is black is fanon, and my headcanon is that she required her children to attend muggle school up until they were able to attend Hogwarts. Canon, fanon, and headcanon are discussed extensively by fans, mostly in online forums such as Tumblr. Fans usually concern themselves with a few fandoms, acting as scholars, writers, readers, and editors.

Beta

A beta is essentially an editor for a fanwork, most often a fanfic. Beta services can simply be proofreading or include editorial feedback. The word itself comes from software design, referring to an unfinished version of software being tested. It can be used as both a noun and a verb, leaving ungainly but necessary creations such as “betaing,” “betaed,” and “unbeataed”

(“Beta”). Betas are also responsible for reminding or helping the writer to tag their works with trigger warnings - something that, if forgotten or done incorrectly, can result in negative feedback from the community.

Trigger Warning, PWP, and Hurt/Comfort Finding the Path Through the Ethics of Fanfiction | Fidler 8

Triggers are situations, sounds, words or things that can cause an intense negative emotional response in a person by reminding them of a traumatic experience or even convince them they are reliving it (“Trigger”). Trigger warnings are advisory messages that warn a reader or viewer that the work may contain triggers or otherwise disturbing content. Within the fandom community, it is generally expected of fanfiction writers to tag their works with trigger warnings such as rape, character death, sex, violence, triggering depictions of mental illness and more.

Archive of Our Own in particular has a category in which writers can choose between some of the main triggers; Rape/Non-Con, Graphic Violence, Major Character Death or Underage. A

"Creator Chose Not To Use Archive Warnings" option was also added for authors to refrain from revealing too much of their work and for readers to have the option of avoiding these fanfics. A few of the tags important to the discussion of the ethics surrounding violent and sexual themes are PWP and hurt/comfort. PWP or ‘Plot? What plot?’ is the common identifier for explicit fanfiction without identifiable plot. PWP can also be described as ‘porn without plot’ (“PWP”).

Hurt/comfort is a genre of fanfiction in which the narrative focuses on the physical pain or emotional distress of one character who is cared for or comforted by another. These fanfics can sometimes include graphic depictions of bodily harm and violence (“Hurt/Comfort”). Other tags that are not as necessary but generally expected according to the community are the types of relationships found within a fanfiction; heterosexual, homosexual, etc.

Shipping and Slash

A ship and its verb form, shipping, both derive from the word ‘relationship.’ Shipping is the act of wanting a romantic relationship to occur in a fandom, and a ship would be the relationship itself. There are four types of ships: het (male and female), slash (two males), femslash (two females), and poly (three or more partners) (“Shipping”). Slash is by far the most Finding the Path Through the Ethics of Fanfiction | Fidler 9

popular type of ship within the fanfiction community. It accounts for 49.7% of the works on

Archive of Our Own. PWP, shipping, slash will be a part of the discussion on the ethics of the themes within fanfiction, specifically sexual themes, whereas hurt/comfort will be used in discussion of fanfic with violent themes.

Real Person Fiction

Finally, Real Person Fiction (RPF) is a subgenre fanfiction written about real world people instead of fictional characters, not including historical figures (“RPF”). Real Person

Fiction is a grey area of ethics in and of itself that will need to be discussed in terms of legality because of the problem of consent writing about real rather than fictitious people, and ethics of fanfic content due to the higher prevalence of Mature, Explicit, or Not Rated fanfiction (Archive of Our Own).

Fanfiction as a Derivative Work

The legality of fanfiction in the United States falls under copyright law and is identified as a derivative work. A derivative work, according to U.S. Code Title 17, is a “work based upon one or more preexisting works,” it can appear in any “form in which a work may be recast, transformed, or adapted” (United States Cong. House). Despite this seemingly clear-cut definition, things become grayer once permission and use are considered. Fanfiction is generally created without the explicit permission of the author, writer, or director and is, for the most part, used and distributed without the intention of monetary gain. However, there is a growing amount of fanfiction that is being published using different character names, but most of the same original concepts. This is unofficially known in the fandom community as “filing off the serial numbers” of a work. This leads to some original creators believing fanfiction encroaches on their Finding the Path Through the Ethics of Fanfiction | Fidler 10

intellectual property and labeling it blatant copyright infringement. This is still only a small number of fanfiction authors who are being published and reaping both reputational and material benefit. Most fanfiction writers, as we see them now in online forums, do not produce their fanfiction for monetary gain. In those more common cases, the original owner of the copyrighted work is not being harmed financially or reputationally.

Dispelling Misconceptions with Statistics

To discuss the ethics of fanfiction’s content, it is first necessary to dispel a popular misconception. Unfortunately, the type of fanfiction that seems to grab the most mainstream attention is the pornographic. E. L. James’ trilogy Fifty Shades of Grey is probably the most widely-known example of published fanfiction (in this case Twilight fanfiction), and it was

James’ rise to author stardom that undoubtedly added to the unfortunate, and misinformed, view that most, if not all, fanfiction is pornographic and bordering on, if not simply, violent. In fact, on Archive of Our Own, 60% of fanfics are G- or T-rated, leaving little more than a third to be

Mature, Explicit or Not Rated. To speak of those 40% that do contain adult themes (sex, violence, etc.), the discussion of ethics is the same as that of published fiction or more accurately unsupervised internet access. Given that fanfiction is produced online, these forums cannot truly verify if the reader is a minor, ergo, it is possible for unsupervised minors to be reading fanfiction that contain these themes online.

Another contention with fanfiction, which has less to do with violent and sexual themes and more with privacy, is RPF. RPF, as stated previously, uses real people instead of fictional characters. These include actors, singers, athletes, vloggers, or historical figures. RPF could be seen as a violation of consent, yet one could also cite celebrities’ choice to enter the public eye and therefore have their pictures taken, articles and stories written about them – true or not – as Finding the Path Through the Ethics of Fanfiction | Fidler 11

consent. Regardless of its controversial quality, this type of fanfiction only takes up 5.7% on

Archive of Our Own.

These ethical issues need to be seriously considered and examined by the publishing community in order for writers to continue to create fanfiction legally and ethically. Fanfiction includes topics and writing styles one might never see on the shelves of a bookstore and allows writers to creatively explore and participate in a safe space, especially for marginalized groups such as women, people of color and the LGBT community. It is up to the publishing community and fans within the academic world to analyze and understand the effects of fanfiction not only within their field but also in the fandom community. Publishers and authors have this responsibility because of the perceived effect of fanfiction on their field, and fans because of fanfiction’s positive effect on teenage, marginalized, and amateur writers.

Fanfiction is a growing genre with an increasing number of writers and readers every year as more fans discover archive forums like FanFiction.net, Wattpad, and Archive of Our

Own. Although no official statistics have been taken or analyzed, Archive of Our Own in particular boasts 4,682,568 works since its creation in 2009 with more flowing in every few minutes. Not only are the works growing in number, but fanfiction is also becoming more prevalent in mainstream media. Some fanfics are published or even made into movies as was the case with the Fifty Shades of Grey trilogy and After by Anna Todd. As fanfiction comes into the spotlight, many debate its ethicality not only in regard to ownership right of the works but also of its content, availability to minors, and possible infringement on the rights of celebrities and public figures. Finding the Path Through the Ethics of Fanfiction | Fidler 12

History of Fanfiction

As stated, fanfiction is a written fanwork often posted or uploaded onto online archival sites such as Fanfiction.net and Archive of Our Own. This present-day digital definition of fanfiction is what this thesis is concerned with; however, it is important first to understand where the genre of fanfiction originated and how it grew into the modern online subculture it is today.

The beginning of fanfiction and its parent, the fandom, is obscure and there are many contradicting opinions among scholars and in the online forums.

It is generally accepted by the online community that the Sherlock Holmes fandom is one of if not the oldest fandom as I defined them previously. The first Sherlock Holmes adventure was published in 1892, and its fans and their subsequent fanfiction began to make themselves known when Sir Arthur Conan Doyle threw Holmes off a cliff in “The Final Problem” in 1893.

Truly, Doyle’s stories had already inspired parodies of what might be considered early fanfiction

(such as Robert Barr’s “The Great Pegram Mystery” featuring Sherlaw Kombs), but it was

Doyle’s literary act of murder that sparked the creation of the first organized appearance of a fandom forty years later and the precursor to online communities of amateur critics, analysts, and interpreters known as The Baker Street Irregulars (Mills).

George Mills tracks their history in “The Scholarly Rebellion of the Early Baker Street

Irregulars.” The group went from 1934 club meetings in New York speakeasies to a national organization in 1940 to today’s worldwide collection of fans – both official and unofficial

Irregulars – with the help of the World Wide Web. It was the creation of this digital space that generated such growth. With the expansion of the Web, finding like-minded individuals interested in the same subjects – Sherlock Holmes in particular – became easier, and Finding the Path Through the Ethics of Fanfiction | Fidler 13

communication across the globe flourished. Fanfiction, as a result, became easily accessible around the world, encouraging more fans to become interactive audiences.

Such an organization fought for recognition amongst the day’s literary scholars. At the start, their Sherlockian studies had more in common with today’s online blog posts debating character’s actions, establishing fanon, and discussing canon rather than today’s fanfiction. Yet one of the first of these Sherlockian pamphlets – written by Cambridge professor Sydney Castle

Roberts in 1931 and within which he theorized that Watson’s second wife could be Miss Violet

Merville from Doyle’s “The Illustrious Client” (1924) – was expanded later that year into a full biography on Doctor Watson. This, in turn, inspired the publication of Sherlock Holmes’ own biography, The Private Life of Sherlock Holmes, by Vincent Starrett, which can be satisfactorily called one of the first pieces of fanfiction to come out of the Baker Street Irregulars (Mills).

While the fans of Sherlock Holmes might be considered the first fandom as they appear today, the first instances of fanfiction can be found even further back in time. Natasha Simonova posits fanfiction to be even earlier than Doyle’s fans in the 1800s in “Fan Fiction and the Author in the Early 17th Century.” Instead, she proposes its beginnings lie in 1586, after the death of Sir

Philip Sidney, the publication of his unfinished work in 1590, and more specifically with the ensuing publications of six of his readers within the same universe.

Sidney died not only in the middle of writing his third book, but also mid-sentence in the thick of a momentous battle. In an updated version three years later, Sydney’s last three books of

Old Arcadia, the first version of the Arcadia tale, was attached to the unfinished end of his New

Arcadia by his sister Mary. The gap in book three is closed by two of their readers; the first was

Sir William Alexander in 1616 with “Supplement” and then Mr. Ja. Johnstoun’s “twofold supplement” in 1638. However, before the gap was bridged by readers, Gervase Markham wrote Finding the Path Through the Ethics of Fanfiction | Fidler 14

English Arcadia, which is the most extensive of the Arcadia continuations and concerns itself with the children named in the last lines of Sidney’s original work. It was published in two parts; the first in 1607 and the second in 1613. The final cases of 17th century Arcadia fanfiction are Sir

Richard Belling's Sixth Booke in 1624 and Anna Weamys's Continuation in 1651 (Simonova).

The history that I have described is laid out to demonstrate that fanfiction in all the years

– centuries if we take Sidney’s Arcadia continuations as the earliest of examples – it has existed, evolved, and thrived, it has done so without causing injury to the author or their work. Its existence enraptures fans, encouraging them to interact with texts instead of simply being a reactive audience. In this way, it also benefits the academic and literary world by revealing a

“tradition of a specific type of engagement with literature, to which we have only recently given a name” (Simonova, 14).

Demographics

The demographics of fanfiction writers on Archive of Our Own has not been documented however, Charles Sendlor, a user known as Lord Kelvin within the fanfiction community, compiled data on 95,313 public profiles created on Fanfiction.Net in 2010. He looked at their country of residence, age, and sex of as many users as possible. The two countries with the largest percentage of the population of fanfiction users were the United States at 57% and the

United Kingdom at 9.2%. Of the 9,544 user profiles who revealed their sex, 78% were female.

Age was the most difficult to procure, and so the research only dealt with 2,230 user profiles,

80% of that population were between thirteen and seventeen (Sendlor).

These numbers show that a majority of fanfiction readers and writers are American, female, and under eighteen. This not only shows how important fanfiction is for representation of Finding the Path Through the Ethics of Fanfiction | Fidler 15

women, it also demonstrates the necessity of analyzing the ethics of a community of mostly minors reading fanfiction that many assume is mostly made of mature themes.

Methodology

First, through an examination of various journal articles surrounding the legalities of fanfiction, I will determine the primary legal concerns many authors, writers, publishers, and film producers have concerning fanfiction. This will include defining both derivative and transformative work as well as determining where fanfiction falls between the two, according to

U.S. copyright law. I will also compare and contrast copyright and fair use principles as they relate to each other. The concepts/language or terminology of fair use will allow me to determine how fanfiction applies in such a context. To support my findings, I will examine instances of legal actions against fanfiction writers with regard to copyright infringement and commercialization. The duration of copyright will also be considered with regard to ownership of original creative works vs works within the public domain. I will examine specific cases of using fanfiction for monetary gain in order to determine the general fandom reaction to their peers using fanfiction for monetary gain as well as the original work’s creator’s if possible.

Before getting into the primary research, the misconception of the prevalence of sexual and violent themes in fanfiction must be disproved in order to view fanfiction and its community in a neutral light. I will accomplish this through data collection on Archive of Our Own. The ethics of the sexual and violent themes in fanfiction will be analyzed through studies of both published fiction themes of the same genre and internet supervision regarding minors. The arguments for and against banning books now and in the past, as well as the ethics of internet censorship, can lend some of the same concepts to the discussion of obscenity and violence in fanfiction. These arguments are important to analyze in order to determine the ethicality of Finding the Path Through the Ethics of Fanfiction | Fidler 16

allowing such themes in fanfiction and on the internet in general. The fact of fanfiction’s solely online presence brings the lack of ability to prevent minors from accessing fanfics with mature themes. To determine whether the responsibility of such a problem rests on the user, the administrators of these forums, or the writers, I will examine articles discussing similar cases of internet supervision and minors. I will also ascertain what actions fanfiction writers can do to keep themselves within the ethical boundaries by exploring the rating system of many of these fanfiction archives and the tag or trigger warning method. In addition, I examine articles surrounding celebrity and public figure rights to privacy to determine if Real Person Fiction, a subcategory of fanfiction, is a violation of their consent. I discuss the ethics of modern versus historical figures as well as whether merely using real person’s names in a work as an unimportant side character could be seen as Real Person Fiction. Throughout my analysis, I draw on examples of fanfiction from Archive of Our Own.

I use ArchiveofOurOwn.org for statistical data regarding fanfiction works, as the search engine is the most sophisticated and specific. It sorts the works by tags, maturity ratings, fandoms, and a variety of other factors that make data collection easier. Other search engines within fanfiction archives do not show detailed warnings for the works which make it impossible to determine percentages for works containing the themes I discuss in this thesis such as violence, abuse, PWP, and hurt/comfort, Archive of Our Own is also the only fan fiction archive to display exact numbers for their users’ works. Although Fanfiction.net is commonly regarded as the top fanfiction archive, its search engine is vague and does not sort works based on criteria with which I am concerning myself in the process of this analysis (trigger warnings, male and female homosexual pairings, heterosexual pairings, etc.). Additionally, Fanfiction.net does not reveal specific data regarding the total number of works or the number of users. Secondary Finding the Path Through the Ethics of Fanfiction | Fidler 17

reports of “over 10 million registered users” on the FanFiction.net Wikipedia page cannot be verified ("Fanfiction.Net"). I collected and calculated the data presented at 12:55 PM on April 3,

2019. The total number of works on this forum will have increased since the data was collected.

I have separated the ethical concerns regarding fanfiction into two parts: concerns pertaining to its legality and concerns pertaining to content by society in general. While both sections deal with the ethics of fanfiction, the first primarily deals with issues that could be brought to court. Within the first section I tackle issues surrounding copyright, fair use,

Transformativeness, and commercialization. The second section could be more aptly named morality of fanfiction as it dissects the ethical issues that fanfiction writers face from society and the fandom community. Most fanfiction writers do not, in fact, think about the legality of fanfiction because they almost never see legal consequences for their works. However, they do face social consequences both within and outside of the fandom community. The first section is important in order to protect writers from legal ramifications, and the latter to better defend fanfiction against social ridicule. By identifying these ethical ramifications, both legal and social,

I hope to equip fanfiction writers and the fandom community with the information they need to defend the practice of writing fanfiction.

Legality

What are the most prominent legal issues authors and corporations have with fanfiction?

The most obvious, of course, is copyright infringement, but another one that has only recently come into the light is the commercialization of fanfiction. These pulled to published works are scrutinized not only by the original creators and publishing field, but also the online fandom community. Finding the Path Through the Ethics of Fanfiction | Fidler 18

Copyright, Fair Use, and Transformativeness

Infringing upon their favorite creator’s copyright is the first thing that any fanfiction writer worries about when putting pen to paper – or more likely, putting their fingers to the keyboard. Copyright law protects original works of authorship from being “perceived, reproduced or otherwise communicated” without the author’s permission (United States Cong.

House, Title 17, Sect. 102). Exceptions to this rule include fair use, reproduction by libraries and archives, and certain performances and displays (such as face-to-face and virtual instruction). In the case of fanfiction, only the first exception is of importance.

Fanfiction is officially viewed as a derivative work. The United States Code Title 17 states that a derivative work is one “based upon one or more preexisting works… consisting of… modifications which, as a whole, represent an original work of authorship” (Sect. 101). In other words, the derivative work must be a transformation of or an addition to the original work. It is not simply “reproduction plus transformation,” but rather a transformation of what makes the primary work original (Gervais, 807). Its transformation, adaptation or modification must be substantial enough for it to be seen as its own work.

The derivative right exists, Gervais says, because “[authors] create by something else, a je ne sais quoi that makes it almost a certainty that two authors in an identical situation with similar tools would produce substantially different results” (835). In essence, that is exactly what fanfiction writers are doing; writing using base elements of a fictional universe to create millions, if not billions, of unique combinations.

A derivative work is not in violation if the author of the original work has given permission for a derivative work to be created or if the work falls under fair use. Determining if a work falls under fair use means looking at it in light of four factors: the purpose and character of Finding the Path Through the Ethics of Fanfiction | Fidler 19

use, the nature of the copyrighted work, the amount being used, and the effect upon the market value of the work (Kimbrough, 627). These are not set in stone guidelines for a court to rule yes or no by. Each factor is supposed to be considered and weighed against the others. Still, over the years, the first and fourth factors have proved to hold more weight in court (Kimbrough).

The first factor began as simply considering the purpose and character of use of the new work but has since grown to include the transformative use doctrine. The concept of transformative use existed as “productive use” in the nineteenth century, though it was not an intrinsic component of the first factor until much later. It was introduced by Judge Pierre N.

Leval in 1990, who described a work as being transformative if “the secondary use adds value to the original – if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings” (Kimbrough, 630). It was officially seen as part of the fair use doctrine in 1994 during Campbell v. Acuff-Rose Music and defined by the Supreme Court as when an author “[alters] the original with new expression, meaning, or message.” Transformative uses include “criticizing the quoted work, exposing the character of the original author, proving a fact,… parody, symbolism,… and innumerable other uses” (Kimbrough, 630).

An example of a transformative work would be Alice Randall’s 2001 novel, The Wind

Done Gone, which retells Margaret Mitchell’s Gone with the Wind from the perspective of

Cynara, a slave who lived on the plantation and the half-sister of Scarlett O’Hara, Mitchells’ heroine. Randall transforms Mitchell’s historical romance and creates a story with an entirely new message about race and class for her readers.

Fanfiction, when examined through the lens of the first factor, falls into the latter category: the transformative use doctrine. Fans and groups who are involved in educational and Finding the Path Through the Ethics of Fanfiction | Fidler 20

advocacy efforts encourage the identification of fanfiction as a type of transformative use because it is an important step in avoiding any legal issues with creators of original works. The

Organization for Transformative Works, for example, runs a peer-reviewed journal,

Transformative Works and Cultures, and the fanfiction archive, Archive of Our Own. If a work is transformative, it is automatically fair use, even if the other four factors of determining a work’s fair use would weigh against it. Fanfiction can fill multiple examples of transformative use because of the diversity of the genre. Fanfics can be written to parody the work; criticize the work’s themes, characters, or author; analyze the same; and many more “innumerable” purposes.

Copyright term, or the duration of copyright, is important for fanfiction writers to take note of in order to know when copyright is not an issue, that is to know when not to worry unduly. The copyright term is however long the copyright of the original work lasts before it is subject to the public domain. The public domain contains all creative works whose copyright has expired, been waived, or are inapplicable. Creative works and characters within the public domain can be taken by new authors in order to create, publish, and profit from without permission from their original creator. Alice from Alice in Wonderland, Dr. Jekyll and Mister

Hyde, and Sherlock Holmes are all characters whose copyright has expired and are now public domain.

An obvious and simple answer to avoiding any legal problems and the complicated task of determining fair use would be to limit writers to works that are already public domain. This is not a viable solution, not only because of the morality of stifling thousands upon thousands of creative voices, but also because of the reaction fans would have. From personal experience, the reaction to such a limitation would be a mix of outright refusal and petitioning in court via Finding the Path Through the Ethics of Fanfiction | Fidler 21

organizations like The Organization for Transformative Work. Because of the freedom of the internet, I have no doubt that the fanfiction community – if they were unable to post their works on the usual archival sites – would simply find other ways to distribute and find fanfiction.

Copyright duration of published works is currently dependent upon the date of first publication and whether or not the author published the work anonymously or pseudonymously, or it was written for hire. Works published before 1978 have a complicated means of determining duration, not all of which need to be described for the purposes of this thesis. In short, the maximum copyright term for works published before 1978 is ninety-five years after the first publication and only if the copyright was renewed during the twenty-eighth year following publication. All work published for the first time before 1923 are now public domain. Works published for the first time after 1978 have a copyright term of seventy years after the death of the author. Works that were written anonymously, pseudonymously, or for hire (such as for corporations) have a copyright term of ninety-five years from first publication or 120 years from creation, whichever term is shorter (MacNamara, 554).

In 2013 it seemed the last dregs of the Sherlock Holmes canon were controlled by the

Conan Doyle Estate Ltd. (CDE). They continuously harassed commercial fan enterprises such as the Baker Street Irregulars for licenses and money, but they weren’t of much interest to the

Sherlock Holmes fandom in general until the legal fight with Leslie Klinger, a Sherlockian anthologist and member of the Baker Street Irregulars. The CDE asked Klinger’s publisher to pay a licensing fee, threatening that if they were not paid, Klinger’s book would never be distributed in major outlets. Klinger responded by demanding that “the Sherlock Holmes stories and novels first published in the United States before 1923, like all works first published in the

United States before 1923, fall into the copyright public domain” (Rosenblatt, 3.3). The ensuing Finding the Path Through the Ethics of Fanfiction | Fidler 22

legal battle took Twitter and other social media sites by storm. Fans villainized the CDE, and

#FreeSherlock trended on Twitter. After a year and a half, Klinger won Klinger v. Conan Doyle

Estate, Ltd., placing the characters of Holmes and Watson, along with the first fifty stories and novels, in the public domain.

The support from the fandom is indicative of fans’ mindset when it comes to works that lie – or that they see as laying – in the public domain as well as their opinion of attempts at silencing fanworks. Fans take ownership of a fandom and the works they create within it and taking away their transformative right would only mean a media war with average and influential fans. Popular authors Neil Gamain and Lyndsey Faye both put in their two cents during the

Klinger v. Conan Doyle Estate, Ltd. #FreeSherlock case as did many more authors, publishers, and influential figures like comedian Stephen Fry and Vine celebrity Curtis Lepore. Limiting fans in such a way is a solution that is too simplistic and does not take into account the human need for creativity. It also assumes that copyright owners have absolute dominion over their works (like the exceptions provided by fair use) and doesn’t allow for the fact that the commercialization of derivative literary works has happened in the past (such as the many continuations of Sir Philip Sydney’s Arcadia) before the occurrence of the modern genre of digital fanfiction (Lipton 465-466).

Klinger v. CDE, while not an instance of fanfiction writers being brought to court because of monetary gain via fanfiction, does involve fans’ reaction and a fan whose work was at stake. There are seven similar cases that should hold significance within the fandom and fanfiction community just as Campbell v. Acuff-Rose and Klinger v. CDE were.

The case of Nichols v. Universal Pictures determined how modern courts separated and protected ideas specifically with creative works. An author of a 1922 play sued the producer of a Finding the Path Through the Ethics of Fanfiction | Fidler 23

1926 film claiming that they were infringing upon his copyright because the works both had themes of racial antagonism between an Irish and Jewish family whose children fall in love. The court decided no infringement had occurred, establishing the basis for copyright infringement actions based on borrowed characters; “the less developed the characters, the less they can be copyrighted” (Nichols v. Universal Pictures, 1930). Borrowing characters from an original work is exactly what fanfiction writers do. This case shows just how much leeway writers have with using elements of a story or work in an attempt to commercialize their fanfiction. For example,

E. L. James could not be held sued for copyright infringement by Stephanie Meyer even if her pretty but clumsy heroine, Anastasia Steele, holds a very close resemblance to Meyer’s ungainly but strangely beautiful main character, Isabella Swan. Commercialization of fanfiction and this act of “filing off the serial numbers” of a fanfic will be discussed in more depth in the next section.

In 1989, a screenwriter sent in a screenplay proposing a fourth Rocky movie, and when the fourth movie came out including similar but not identical themes, the screenwriter sued

Rocky screenwriter and actor, Sylvester Stallone, for copyright infringement. In the end, the court said the screenplay was an unauthorized derivative work and thus was not eligible for copyright protection (Anderson v. Stallone, 1989). This case showed that fanfiction writers do not own anything – including plot – even if it is entirely new and only minimal themes and characters were taken from the original work. The modern equivalent would be if a fan writing a fanfic in the Supernatural fandom and sent the work to the producers and then parts of it were used in the next episode without giving credit to the fanfiction writer. The producers could not infringe upon a work that was itself an infringement of their work. Finding the Path Through the Ethics of Fanfiction | Fidler 24

The Cat Not in the Hat was a parody of the O. J. Simpson murder trial done in the style of

Dr. Seuss. Dr. Seuss Enterprises sued the creator for copyright infringement. The creator claimed that the work was transformative use because it was a parody. The court upheld that the work was a parody, but not of Dr. Seuss and therefore not fair use in this case (Dr. Seuss Enterprises v.

Penguin Books USA, 1997). This is particularly important in relation to fanfiction because of the popularity of the subgenre Alternate Universe (AU). Alternate Universe fanfiction takes story- world elements from one work and adds the characters of another. For example, Hogwarts AU fanfiction is a very popular fanfiction trope, in which characters from any fandom are re- identified as witches and wizards and sorted into houses at Hogwarts, the famous British school within the Harry Potter universe. Even if such a fanfiction were able to claim fair use for the characters used from the first original work, they would not be able to do the same for the elements taken from Rowling’s works.

Two cases clarify the parameters of transformative use; Salinger v. Colting and Suntrust v. Houghton Mifflin, the court case involving Randall’s The Wind Done Gone. Salinger v.

Colting is the closest example of fanfiction being brought to court. A sequel to The Catcher in the Rye called 60 Years Later: Coming Through the Rye was published without authorization from J. D. Salinger, the original creator. Even though the sequel had its own words and plot, it took main characters from Salinger’s novel. The judge did not find the sequel to be fair use because the author did not create the work to critique the original but instead to join in the popularity and fortune. Randall and Mitchell’s case concerning Gone with The Wind and its counterpart had a very different outcome simply because Randall’s work was a critique of

Mitchell’s historical romance. The first case shows why much of fanfiction would not qualify as Finding the Path Through the Ethics of Fanfiction | Fidler 25

fair use, at least if it was commercialized and considered under the first factor of fair use. The second case reiterates the importance of recognizing fanfiction as transformative.

Probably the most famous lawsuit brought by an author against a fan is Warner Bros.

Entertainment Inc. v. RDR Books. A fan created the HP Lexicon, an online guide to the Harry

Potter world, that was so thorough Rowling herself was said to have used it. The trouble came when the fan was about to sign a publishing deal to make the Lexicon into a book. Rowling was making her own Harry Potter encyclopedia, which meant the fan’s book would have interfered with her market value. The court said the published lexicon would not have been transformative because it was simply a rearrangement of the original work and so not fair use, either (2008).

This case shows the importance of the fourth factor as well as the classification of rearrangement as non-transformative.

The lawsuit Paramount Pictures filed against Axanar Productions in 2017 simply offers further proof of the importance of the fourth factor as well as a cautionary tale against commercializing fanfiction. Axanar was a fan made production that provided backstory for an episode in the original Star Trek series. However, what made this different from the thousands of fan videos and amateur reproductions or continuations online was the professional quality of the work. It was a real market threat to the Star Trek franchise because it looked like a seamless continuation by what could be professional actors and filmmakers. While the work did not borrow much of the characters or plot from the original work, it did borrow elements of the universe such as the existence of the Federation, the shape of the ships, the uniforms, the Star

Fleet logo, and the alien races. Courts decided Axanar was not fair use because it was not transformative (Paramount Pictures v. Axanar Productions Inc., 2017). Finding the Path Through the Ethics of Fanfiction | Fidler 26

Since the case of Campbell v. Acuff-Rose, where transformative use was officially added into the first factor by the Supreme Court, courts have been looking more closely into whether a work is used in a “transformative” way (Kimbrough, 633) even though the Supreme Court still held that the fourth factor was the most important. Fanfiction writers who to profit from their work interfered with the original works’ market value and subsequently failed in proving fair use when it came to the fourth factor.

The fourth fair use factor, the effect of the use of the new work upon the potential market, does not tend to be a common problem among fanfiction written and distributed for free online.

However, some authors choose to commercialize their fanfiction and made this factor more relevant.

The Commercialization of Fanfiction

Getting their fanfiction published was probably the last thing any writer would have expected before E.L. James’ Twilight fanfiction, Master of the Universe, appeared in stores across the country under a new title: Fifty Shades of Grey. James’ series has since evolved into three books and a movie trilogy. While this is a dream come true for any writer, no one in the fandom community would have considered wishing for one of their fanfiction works to go to box office and earn nearly half a million dollars. Most writers would obviously prefer an original work of theirs to be recognized. That is not to say James was the first to think of pulling her work to publish, but she had the most media coverage of and success with her endeavor.

Pulled to publish fanfiction is not simply fanfiction that has been printed, bound, and shipped off to bookstores. It is when fanfiction writers remove any details related to the copyrighted source and then send it in to be published as original work. This removal of details, Finding the Path Through the Ethics of Fanfiction | Fidler 27

such as names, places, and even ethnicities, is known as “filing off the serial numbers.” This is exactly what James did with her fanfic Master of the Universe. She changed the names of the characters and gave some of them new ethnicities to make their relation to the original characters less blatant. Bella Swan became Anastasia Rose Steele, Edward Cullen became Christian Grey, and the Native American Jacob Black became Hispanic José Luis Rodriguez Jr.

Besides being dishonest, filing off the serial numbers of fanfiction and commercializing it as original work brings up problems legally as well as within the fandom community. As discussed, the fourth factor of determining fair use is one of if not the most important factor that fanfiction must battle. Commercializing it makes such a battle impossible to win without filing off the serial numbers because, like Salinger v. Colting, the commercialized fanfiction would be interfering with the original work’s market value and competing for the same readers and profit.

Unless it was fanfiction of a work whose copyright had elapsed, fanfiction writers would have to change names and descriptions to avoid a lawsuit. Examples of successfully commercialized fanfiction of these works who did not – and did not have to – file off the serial numbers include

Frank Beddor’s The Looking Glass Wars trilogy based on Lewis Carrol’s Alice in Wonderland and Seth Grahame-Smith’s Pride and Prejudice and Zombies based on Jane Austen’s classic

Pride and Prejudice. Another exception fanfiction writers could use to avoid filing off the serial numbers of their fanfiction is adhering to the first factor of fair use, by creating a critique, parody, etc. of the original work such as Randall’s The Wind Done Gone.

Another, now mostly disregarded, option for fanfiction writers is to publish licensed commercial fanfiction. This option is now practically nonexistent with the closing of Amazon’s

Kindle Worlds publishing platform earlier in 2018. Licensed commercial fanfiction are derivative works that have permission from the original creator to publish and sell fanfiction. Finding the Path Through the Ethics of Fanfiction | Fidler 28

The only platform to do this was Kindle Worlds, who also prohibited writers from publishing their work in other platforms including in online archives (Lipton 440). While licensed commercial fanfiction encourages secondary creativity and removes the threat of copyright infringement, it also limits that creativity. Within the Kindle Worlds platform, combining elements from two original worlds is prohibited, which means any writers who wish to write AU fanfiction cannot do so. Each original creator also has their own personal guidelines for any fanfiction written of their world. Finally, any original creator or Amazon itself can use the fanfiction for their own means without having to compensate the fan author, as the work legally belongs to them.

Additionally, when compared to commercial derivative works, questions arose. If licensed commercial derivative works exist, does that negate the legality of unlicensed commercial derivative works? Would fanfiction authors have a harder time satisfying the fourth fair use factor if licensing options are available for that original work? These questions were never satisfactorily answered before Kindle Worlds was shut down, and now, with the lack of any popular and efficient licensing alternative, they may never be (Lipton 461).

The fandom community generally disapproves of the pulled to publish fanfiction and licensed commercial fanfiction (Jones). Pulling a free fanfic to publish it as original fiction applies an air of dishonesty to the author and even worse indicates exploitation of fans.

Moreover, the removal of a works’ fannish history creates a divide between the author and their fandom where a sense of community is essential (Jones 5.8). It is the communal nature of fandom that draws so many fans into participation via reading, writing, drawing, and betaing.

Betaing, in particular, causes a rift between the author and the community because the work is then seen as a collaborative effort. The work itself may also be the result of a prompt or Finding the Path Through the Ethics of Fanfiction | Fidler 29

challenge by another fan in the fandom or the result of canon, fanon, or headcanon discussion meaning the idea for the plot of the fic isn’t even the writers’ to claim (Jones 2.3).

Fandom is a community whose cultural value is placed upon the “gift economy” (Jones

2.6). This gift economy consists of any fanwork being given to another fan or to the fandom in general and fostering a relationship because of it. Such an economy, like the fandom, is based upon giving, receiving, and reciprocating, attributing value to these works within the community.

The gifts, or fanworks, offer social structure as well. Specific to fanfiction, this social structure is dependent upon views, likes, comments, and followers or subscribers. Fanfiction authors who collect a substantial amount of all four have a certain prestige; they are like minor celebrities within whatever fandom they have written for.

The act of pulling to publish leads to a split either between the author and the fandom or in the fandom itself. The fandom is subsequently split between those who wish to support a fellow fan and/or place value in profit and those who adhere to the gift economy mindset and/or believe that if it is not published for profit, then the work isn’t illegal (Jones 2.3 – 2.6).

There are those who argue that if the sale of fanart or fan merchandise is legal and accepted within the community, why not fanfiction? The answer lies in the difference of availability and collaborativeness between fanart and fanfiction. Artists who create art in the form of jewelry or clothing can sell their creations on platforms such as Redbubble and Etsy.

These works are rarely available for free anywhere else and are created by one or two authors alone. Fanfiction is very different in that, as previously discussed, it is made up of collaborations between writers, betas, and fans. Fanfiction is also posted on blogs and archival sites for enjoyment and review. Fanfiction can be edited and updated after posting if authors wish to apply advice from the fandom (Jones 5.7). Finding the Path Through the Ethics of Fanfiction | Fidler 30

Finally, it is what Catherine Tosenberger describes as fanfiction’s quality of

“unpublishibility” that classifies it as fanfiction in the first place. “Fanfiction is often so deeply embedded within a specific community that it is practically incomprehensible to those who do not share exactly the same set of references” (Tosenberger 5). It is this exclusionary quality that inhibits the commercialization of most fanfiction. To make such a quality irrelevant to a particular work would distance that work from its original audience, perhaps opening itself up to another but still losing the fan base that made the story popular to begin with. Fanfiction can work within the constraints of preexisting characters, plots, and story world elements as well as liberally twist the stories to the writers’ interpretations (Tosenberger, 15). One small, seemingly insignificant line can inspire a fanfiction of up to three million words.

In the end, when it comes to legality, fanfiction is safe from litigation if writers are sure to steer clear of commercializing their creations (or make sure to attain a license) and – though it might not be necessary to win any legal fights – avoiding writing fanfiction of works whose authors have explicitly and publicly asked fans to refrain from creating it. The discussion of the ethics of writing fanfiction is just as drawn out, if not more so, and the path through it just as hard to make out.

Ethics

The common stereotypes that people buy into when it comes to fanfiction is that it is altogether unoriginal, violent, and pornographic. These misconceptions were not helped by the publication of E.L. James’ violent erotica notorious for its beginning as fanfiction and obvious portrayal of characters too similar to Stephanie Meyer’s. The prevalence of sexual and violent themes within fanfiction can be lifted via data collection. However, the works that do contain such themes bring up the question of supervision of minors’ internet usage. Finally, RPF, a Finding the Path Through the Ethics of Fanfiction | Fidler 31

debated topic even in the fanfiction community, raises concerns about consent when it comes to the genre considering the topics of the works are real people rather than fictional characters.

Ethical Framework

If a practice is deemed legal, does that make it ethical? Breaking a promise to a friend is legal but generally thought to be unethical. Most kinds of lying is legal but is definitely viewed as unethical. Now that we have dissected the legal ethics of fanfiction, this section deals with the remaining ethical dilemmas many within and outside of the fandom community perceive when considering fanfiction, its content, and its widespread digital availability. In order to analyze these issues, an ethical framework must be determined through which to view them. The two theories which are most applicable are consequentialist theories which are principally concerned with the ethical consequences of certain actions as opposed to non-consequentialist which are more concerned with the intentions of the person deciding upon the action (Bonde and Firenze).

Because we are looking at the consequences of fanfiction rather than the intentions of its writers the former is more appropriate.

The utilitarian approach is one of the most common approaches to ethical decisions, especially those dealing with large groups of people because it posits that the right decision or action is “that which provides the most good or does the least harm, or, to put it another way, produces the greatest balance of good over harm” (Bonde and Firenze). By viewing fanfiction through this lens, a fan or writer could say that fanfiction is ethical because it causes more good than harm even if one assumes that fanfiction’s content and availability truly harms those who read it. Opponents, however, could use the utilitarian approach to deem fanfiction unethical because it the only good fanfiction provides is that of entertainment while its content harms minors through inappropriate content. Finding the Path Through the Ethics of Fanfiction | Fidler 32

Because the utilitarian approach is easily flipped to suit either side with no obvious winner, I believe the second consequentialist theory, the common good approach, to be the superior model. The common good approach “underscores the networked aspects of society and emphasizes respect and compassion for others, especially those who are more vulnerable,”

(Bonde and Firenze). Through this approach and action or decision would be ethically right if it contributes to ethical communal life and the well-being of community members (Velasquez et al.). Fanfiction, then when viewed through this theory, is ethical because it promotes representation of minorities (i.e. “those who are more vulnerable”), experimentation and evolution of literature and digital literacy, and community and connectivity.

And so, it is important to view this section through the lens of the common good approach. Do fandom and fanfiction emphasize respect and compassion for others? Do they highlight the networked aspects of society, especially the globalized world society we have today? Does fanfiction contribute to communal life and the well-being of community members?

Rating and Tagging Systems

The Archive of Our Own uses a rating system involving General Audiences, Teen And

Up Audiences, Mature, Explicit, and Not Rated. The last three ratings include works with adult themes (sex, violence, etc.) that are not graphic, are graphic, and those that are unrated respectively. The works that do fall under these ratings – and therefore, under the obscene and violent stereotypes that James’ work implies for the rest of the genre – make up only two-fifths of the fanfics on Archive of Our Own. Just like published original work, fanfiction includes works that explore the darker side of humanity, but it is mostly comprised of works that do not. Finding the Path Through the Ethics of Fanfiction | Fidler 33

These rating systems are applied to the work at the author’s discretion. Should an author rate their work incorrectly, a complaint can be sent in to request that the rating be reviewed and corrected. On Archive of Our Own, these complaints are handled by the Policy & Abuse team who will review the work and “may decide that a ‘general’ or ‘teen’ rating is misleading. In such cases, the creator may be required to change the rating. If the creator declines or fails to respond, the team may hide the work, set the rating at ‘not rated,’ or take any other appropriate action, but it will not add any other rating” (“Terms of Service”). The site will also show a banner warning that reads, “This work could have adult content. If you proceed, you have agreed that you are willing to see such content,” before allowing an unregistered or underage user to view a fanfic that is rated Mature and up.

While there are no statistics for the percentage of works these ratings make up,

FanFiction.Net has its own rating system composed of K, K+, T, and M. K works are appropriate for general audiences five years and older. K+ is content suitable for more mature children, nine years and older. T includes content appropriate for teens, thirteen years and older.

M works are only for ages sixteen and up. FanFiction.Net’s rating system is regulated similar to

Archive of Our Own. There is an option for readers to report abuse at the bottom of every work that can be used to report ratings below content maturity. These reports will be reviewed and dealt with either by suspension of account or removal of the work (“Community Guidelines”).

The tagging method is also an effective and often humorous way of rating fanfics, though only Archive of Our Own uses it. These tags can classify a work within a subgenre, trope, or theme such as “fluff,” “domestic,” “mythical beings & creatures,” and “modern era.” They can also act as trigger warnings for readers with tags such as, “child abuse,” “homophobia,” “death,” or simply “sexual content” and “violence.” These tags are very effective in not only classifying Finding the Path Through the Ethics of Fanfiction | Fidler 34

fanfiction, but also warning a reader and holding them responsible for their own choices in reading a work that might contain mature content or triggering themes.

Lifting Stereotypes: Unoriginality, Obscenity, and Violence

The popular discourse surrounding fanfiction is dismissive, characterizing the genre as,

“non-academic, non-creative, subversive and extra-legal,” even as many literary scholars regard the genre as a safe space for participants “to critically explore popular culture texts, social dynamics, cultural norms, and their own identities” (Berkowitz, 198). This view developed because of mainstream media’s dominance over youth subcultures, including fanfiction. The media can label subcultural groups through movie portrayals and newspaper articles as deviant or leisure pursuits or pit them against each other, eventually converting the members back into dominant culture (Berkowitz 204).

What could be creative about a genre of fiction in which the characters, the universe, and sometimes the overall plot is simply taken from someone else’s work? The same questions could be asked of mainstream media. Horror movies have a set of humorous rules that fans can use to predict the sequence of events. What keeps the horror genre in business? Why haven’t people stopped going to the movies, or buying Stephen King’s novels? The answer, I believe, is the journey. Yes, all Disney movies might have a happy ending, but what will the hero and heroine face along the way to their happily ever after? In a romance novel, the guy may always get the girl, but is it the girl he wanted all along? Did he learn something about himself before they found each other in the end? It is the situations fanfiction writers place characters in, the new words they make them say, and the lessons they teach them that draw readers in and make fanfiction original in its own right. Finding the Path Through the Ethics of Fanfiction | Fidler 35

Sexual themes, while not as prevalent as many are led to believe, still exist within fanfiction just as it does in the published genre, and in this case, specifically in young adult chick lit series. From the demographics of fanfiction, it is clear that most readers and writers in fanfiction are girls between thirteen and seventeen; therefore, it is applicable to analyze published fiction marketed to the same audience in order to discuss the ethics of sexual themes in fanfiction.

It is important to understand that the following analysis is not of fanfiction labeled as

PWP (Plot What Plot/Porn Without Plot), which makes up only 2.2% of fanfiction. PWP fanfiction does not have any literary or storytelling value and is simply what its name implies: pornography. The ethical discussion of this subgenre of fanfiction is only concerning its censorship and easy availability to minors online. The following analysis, however, involves the

37.9% of fanfiction that has storytelling merit and includes sexual themes.

Young adult novels shape how readers understand themselves, relationships, and sexuality. However, their readers are only getting the mainstream story from authors who are, with the rare exception, much older than they are and party to a different mindset from an older generational point of view. The young adult chick lit genre inducts girls into “a larger cultural narrative about what and how they should desire and how they should enact that desire” (Bullen et al., 9). Because of this mainstream focus, the books are centered around heteronormative sexuality and consumerism. Additionally, this mainstream genre frequently depicts friendship, female empowerment with a concentration on sexualized femininity, and presents positive and helpful coming of age messages to teenage and adolescent girls (Bullen et al., 7). Much of the genre is concerned with sexual and romantic exploration, most times in favor of exploring via casual sex like in the popular series Gossip Girl by Cecily von Ziegesar. There is, however, Finding the Path Through the Ethics of Fanfiction | Fidler 36

another avenue that became rather popular with the rise of Stephanie Meyer’s Twilight. Twilight is what Bitch Media writer Christine Seifert famously labels “abstinence porn” and what the fandom community at large knows as “slow burn” (Day, 29). Slow burn fanfiction is a romantic work in which the intended couple dance around each other until the end, culminating in a romantic scene of declaration involving anything from a chaste kiss to graphic love-making.

Meyer’s novels depict a positive example of a young woman waiting until marriage for sex while also engaging in a relationship with a vampire. Besides the obvious parallels between vampirism and penetrative sex, this relationship is characterized by the voyeuristic tendencies and heightened sexual tension between the two main characters throughout the four books. The author limits herself to the established cultural framework of the young adult chick-lit genre, a genre that is stuck in a postfeminist discourse and its ensuing contradiction of feminist and anti- feminist themes (Bullen et al., 21).

It can be argued that it is not just young adult fiction, but all fiction read by adolescent and teenage readers that help shape their understanding of themselves, relationships, and sexuality, including fanfiction. Female empowerment is well represented within fanfiction, and the empowered woman is not always portrayed with sexualized femininity. Fanfiction presents entertaining scenarios that encourage a reader to think just as young adult fiction does. However, fanfiction is not written by someone whose teenage years are long past like most published authors. Most of it is written by the same demographic that reads it. Mature fanfiction is comprised of the same themes of sexual and romantic exploration that young adult fiction consists of but presented in a way that connects with younger generations better than published books might, offering adolescent women the opportunity to “adapt, reimagine, and reconstruct” the lessons and motifs presented in mainstream literature. If an entire genre of fiction specifically Finding the Path Through the Ethics of Fanfiction | Fidler 37

marketed to teenage girls can be published with these sexual themes, surely a third of fanfiction can be posted online without argument.

In actuality, it is not the depictions of sexual behavior but the romanticizing of violent relationships that require more attention in literature, attention it receives in fanfiction and the fandom community. In a study conducted at Ohio State University it was determined that women

(between the ages of eighteen and twenty-four) who read at least one of the Fifty Shades books showed higher rates of eating disorders and intercourse partners within their lifetime as well as increased binge drinking and a preoccupation with body image (Bonomi et al., 5). The obvious conclusion is that depictions of violence against women in popular culture, specifically literature, normalizes the risks and violent behaviors in women’s lives. Fifty Shades of Grey was banned in several public libraries in the United States under the assumption that it was harmful to readers.

Portrayals of this romantic violent behavior should not be as widespread as it is, even in the cases of redeemability. Beauty and the Beast, for example, is a fun popular children’s movie about the love of Beast and Belle and the jealous hatred of the villain, Gaston. At first, it appears easy to identify who one would consider abusive; Gaston physically threatens and imprisons Belle, tries to isolate her from her family, only wants her to preserve his status in the community, and never apologizes for any of his wrongdoings. However, the Beast also physically threatens and imprisons Belle. He succeeds in isolating her from her family for a short while, courts her mainly to break the spell that has been cast upon himself and his servants, and never apologizes for his treatment of her. The Beast’s redeemability in the eyes of Belle and the audience is what casts him in the hero’s light as opposed to Gaston’s irreparable personality (Olsen, 463). Even in children’s media, the normalization of violence is prevalent. Finding the Path Through the Ethics of Fanfiction | Fidler 38

However, it is important to understand that the depiction of violence is not the same as the normalization of violence; there are many works of literature that do not normalize such behavior. They portray abusive relationships and then deconstruct them as the author heals the victim through another character or general character development. The fandom community and their fanfiction are both discourse that discuss themes of violence specific to the aftermath and the recovery of an individual from an abused mindset. Such works are tagged as hurt/comfort in fanfiction. It should be noted as well that fanfics that involve abuse (2.2%), violence (3.7%), hurt/comfort (6%), or are tagged with Graphic Depictions of Violence (6.6%) make up only a very small portion of fanfiction archives (Archive of Our Own). There are very few fanfics in general that depict domestic violence or abusive relationships (0.3%), but there are significantly more that show this hurt/comfort trope. These works are an exploration of power and metaphysical knowledge as well as of the relationship between characters. Hurt/comfort is often an examination of relationships and the human response to pain, both physical and emotional.

The hurt character brings back some knowledge from their experience that enlightens themselves, the comforter, other characters, or the reader (Linn, 4.6). These fanfics fall in line with the assertion that “struggle, pain, and loss are central to all meaningful storytelling” (Linn,

1.4). All together fanfiction with violent themes makes up a small portion of the genre and those fanfics that do deal with such themes use violence in a meaningful way rather than just for the sake of violence itself.

Internet Supervision and Censorship of Digital Libraries

The demographics of fanfiction show that most of the fans are between the age of thirteen and seventeen. Underage fans have access to the minority of fanfiction that contains the themes above, themes inappropriate for their age group, because of fanfiction’s solely online presence. Finding the Path Through the Ethics of Fanfiction | Fidler 39

And so, the questions of internet supervision are raised. Does the responsibility of such a problem rests on the user, the user’s guardians, the administrators of these forums, or the writers?

Since the user is the minor in question, they cannot be held responsible for the content available.

The writer, while they are choosing to post a work with content unsuitable to minors, has no control over who sees their fanfiction once it is on the site. Neither FanFiction.Net nor Archive of Our Own have preventative measures for minors and mature content. Archive of Our Own’s warning banner only warns readers of mature content and does not prevent them from seeing them. So, it is up to the guardians of the users, or the archival cites themselves, to supervise or censor online activity.

The debate of children’s rights to privacy on the internet versus parental monitoring has been ongoing since the dawn of the digital age. While adolescents and teenagers can find some opportunities online for creativity, social interaction, and self-expression, they might also be exposed to violent, hateful, anti-social, or sexual content” (Mathiesen, 263). Central to the arguments for monitoring children’s activity online is the paternalistic approach to parenting that is almost universally endorsed. Paternalistic actions “remove or restrict the choice of another person for that person’s good (Mathiesen, 265). If it is a parent’s goal to keep their children safe, and those children face risks when they go online, then monitoring their on-line activity is a good way to gather information to make informed decisions about their online freedom in order to keep them from harm’s way. The other side to that argument includes objections like the overstated risks, and ineffective or even harmful monitoring (Mathiesen, 268). Note that in the case of fanfiction, we are not speaking of children but adolescents and teenagers who are more mature and in control of their mental faculties. These older minors need autonomy to grow into the rational adults they will be in the future. To limit that autonomy, especially with a tool as Finding the Path Through the Ethics of Fanfiction | Fidler 40

universal as the internet, would limit that minor’s growth. This is particularly apt in the modern- day climate of technology reliance. Internet supervision may also affect the minor’s relationships with family, friends, and significant others. Privacy is essential for personal relationships, as it enables a person to “create relationships of varying depth and intimacy” (Mathiesen, 270).

However, a balance must be found between the parent and the child in order to assure the minor’s online safety as well as preserving their autonomy and privacy.

On the other side of the screen, there is the question of responsibility for the archival sites as well. If one considers fanfiction archives to be libraries and fanfics the metaphorical digital books, the arguments for and against censorship within libraries will then be comparable. The concept of censorship is fluid and highly controversial when it comes to censorship in libraries.

In the case of physical libraries, the decisions about censorship usually fall to the individual libraries or librarians as the codes and guidelines for such things are often bland generalizations when most censorship decisions have to do with complex situations (Duthie 88). Libraries almost as a whole use internet filters to limit what sites customers can and cannot see, the severity of these limitations depend upon the library.

Similarly, different fanfiction archival sites have different rules that are overarchingly vague. While public libraries officially oppose censorship, most will not act against it. School libraries have banned an enormous number of books at the passionate behest of parents and added many back to their shelves at the equally ardent demand of other parents (Duthie). In general, the contradicting sides of the school libraries banned books debate both want to promote the welfare of children. Though, one “[offers] the variety of protection that preserves innocence” while the other wishes to “[impart] what they view as a comprehensive education” (Duthie 91).

“It would seem that at least some forms of censorship in the library sector are often perceived as Finding the Path Through the Ethics of Fanfiction | Fidler 41

both inescapable and ethically sound” (Duthie 93). These forms include general internet censorship programs that many schools employ that do not allow computers to load sites deemed inappropriate – including social media sites – and the restriction of certain books that a particular librarian or the library board has deemed unsuitable. “Some forms of censorship” in the case of fanfiction can be applied to archive warnings and tags that warn the reader of potentially harmful themes, leaving the censoring to the discretion of the reader. There are cases in which censorship is unavoidable, concerning racist, sexist, homophobic and antisemitic content (Duthie 90). In fanfiction, content that faces unavoidable censorship might be considered commercialized fanfics that violate copyright laws, or content, such as RPF, that holds no literary value and/or violates the consent of the subjects.

Real Person Fiction

Real Person Fiction (RPF) is a topic of controversy in the fandom community. There are the supporters: fans of bands, sports teams, and bloggers who could not write fanfiction otherwise and those fans in the literary, television, and movie fiction fandoms who have the option to write about fictional characters but argue that, as celebrities, the actors who play those characters have “signed up” for the kind of life where they are written about without their consent. Critics of the subgenre hold that celebrities and artists and athletes have agreed to have their lives written about in newspapers and magazines. They have not agreed for fictional versions of themselves to be manipulated into situations and relationships they have never been in. 70.7% of RPF is slash fiction (two male pairing), but most celebrities are not homosexual.

This adds another layer of consent that critics claim is being violated. In addition to the misrepresentation of their sexuality, these public figures are being portrayed in largely maturely Finding the Path Through the Ethics of Fanfiction | Fidler 42

themed fanfics. 51.2% of RPF is rated Mature, Explicit, or Not Rated, meaning most of RPF depicts violent and sexual themes.

Public figures’ rights to privacy are complicated. Privacy in the United States is a battle between the first amendment as well as the freedom of the press and the fourth and fourteenth amendments (Shackelford 125). Unfortunately for celebrities and other voluntary public figures, the law tends to lean more toward the public’s freedom of expression than a public figure’s right to privacy. This is very lucky for RPF writers. While much of the language used to discuss public figures’ rights revolved around the news and other such media, many courts still tend to lean toward “freedom of expression” (Shackelford 127). “Writing fanfiction about real people may be the next step in fans’ attempt to create identification and appropriate popular culture for themselves” (McGee 174). Fans may take the name of the actor, athlete, or otherwise celebrity, but the RPF character is not truly the public figure. They are instead the carefully constructed persona created by them and the fans. Still, these celebrities have the right not to have their character and image treated as an object (McGee 174).

RPF does not include historical figures such as Marie Curie or Alexander Hamilton, this is instead labelled historical fanfiction. RPF also does not include side characters named after actors or other celebrities because the focus is not on them but on the fictional characters. For example, in Wordsplat’s Avengers fanfic “Saving the World (Is Totally a Date),” the two protagonists, Steve Rogers and Tony Stark, are high school teachers, and many of their students are named after actors from the movie Avengers. Because they do not play a major role in the plot, the fanfic is not RPF and does not face the same scrutiny. Finding the Path Through the Ethics of Fanfiction | Fidler 43

Conclusion

As technology develops and our knowledge grows exponentially, more questions of the legal and ethical ramifications of the free digital circulation of fanfiction will rise to the surface of the academic community. Fanfiction is growing, buoyed by developing technology and the increasingly curious and knowledgeable youth that dominates the genre. Its ethics are difficult to navigate, but the risks that fanfiction and its writers take are, I believe, important for the evolution of literature and digital literacy. The next generation is immersed in the fanfiction community and will inevitably bring some aspects of that community with them to the publishing world whether this is as writers, readers, or publishers. Because of this it might be necessary for the community to begin a more rigid set of guidelines in order to better protect the practice of fanfiction from ethical scrutiny.

Fanfiction is so unlike our published fiction from which it emerged. It is a genre that is essential not only to the evolution of participatory media consumption and amateur writers, but also women, people of color and especially the LGBT community. Nowhere is there a better representation of a group of individuals who have only just begun to see themselves in television, politics, and books, portrayed just as anyone else might be. Until the media at large can represent these groups with the same passion and societal approval as the heteronormative side of society, fanfiction will be their main avenue of expression and exploration. Fanfiction requires further study into its importance within these communities as well as its singular literary style and evolution that combines digital literacy with the ideals of the newest generation.

Finding the Path Through the Ethics of Fanfiction | Fidler 44

Statistics Collected at 12:55 PM on April 3, 2019

Total Number of Fics 4,682,568

General or Teen Rated 60% Mature, Explicit, or Not Rated 40%

Slash (male/male romance) 49.7% Graphic Depictions of Violence 6.6% Hurt/Comfort 6% RPF (Real Person Fiction) 5.7% Slash (male/male romance) 70.5% Mature, Explicit, or Not Rated 51.2% Violence 3.7% Abuse 2.2% Plot What Plot/Porn Without Plot 2.2% Domestic Violence or Abusive Relationships 0.3%

Demographics of Fanfiction Writers and Readers Location United States 57% United Kingdom 9.2% Sex Female 78% Male 22% Age 13-17 80%

Finding the Path Through the Ethics of Fanfiction | Fidler 45

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