In the second of an ongoing series of features, Philippa Warr explores the recent trend of cloned games on mobile platforms and some of the legal and regulatory issues that the phenomenon raises.
Fanfiction: Creators, communities and copyright.
From zombie apocalypses in Merlin to elevator-confined World Wrestling Entertainment fighter romances and Twilight/Meerkat Manor crossover massacres, the online fan community has proven adept at taking characters from books, TV shows, movies and games and using them to create their own content.
WHEN FANS CREATE
Probably the most famous example is fanfiction. The original source material becomes a toolkit for fanfiction authors. Existing characters or locations are put to use in telling new stories which now live in vast online repositories like Fanfiction.net. Some tweak the existing material to better suit the new author – what if a favourite character had lived rather than died? What if a romantic relationship had blossomed between another pair? Others move closer to original fiction, using the familiar setting but adding original characters, storylines and so on.
It’s not just about fiction writing, though. Fan art sees fans representing the worlds and people with whom they have become involved, using that artwork to either tell new stories, to play with the characters in new scenarios, or simply to express their own connection to those worlds.
There are also communities within gaming which modify the original content, sometimes just making tweaks (removing all traces of spiders is a popular option), sometimes coming up with significant amounts of original content and story quests which are then shared on fan and mod sites.
Generally fanfiction and fan art represent a community of hugely engaged aficionados of an author’s work. They’ve developed an intense relationship with the original and would like to reciprocate or add something of their own to the universe. The story worlds aren’t just
static instances as laid down by the original author, but living worlds with gaps to explore and new characters to be imagined.
SOME AUTHORS ARE NOT AMUSED
But despite pointing to deeply invested fan communities, fan content is not a universally positive experience for authors and that’s why some have raised objections. It can be an unpleasant experience seeing your characters being reappropriated. It involves ceding control of something you own and it is particularly problematic when the uses to which fans put your characters come into conflict with your own beliefs. For example, Harry Potter author J.K. Rowling tends to operate a live and let live policy when it comes to fanfiction but takes issue with explicit content because it’s not in accordance with the original books. The Harry Potter series is aimed at younger children, after all.
FANS MAY STRUGGLE UNDER INTELLECTUAL PROPERTY LAW
So what’s the story, legally speaking? Well, fan content generally makes limited use of material which is copyrighted to another person or organisation. For example, in the UK, if the fan community uses artwork from the original in depicting the characters, that copyright belongs to the author of the original work and, under the UK Copyright, Designs and Patents Act 1988, their rights may be infringed if the fan content uses the whole or a substantial part of the that copyrighted work without permission. There might also be problems under the common law of passing off, if the result is that the second work might be
confused as endorsed by the original author. When considering fan content in relation to copyright infringement in the UK, fair dealing defences may be hard to apply. This is because the purpose of the use has to be criticism or review of the original work, and UK law has yet to adopt a parody defence (the progress on that front has recently been set back).
Setting the law to one side, other rights holders have pursued the ‘engaged audience’ aspect of fan content, soliciting it to help build that sense of involvement in a given world. Often this takes the form of competitions. As an example, Warner Bros launched a fan art competition earlier this year to support its Godzilla movie. “We give you a brief, guidance and assets. You design your own version of a Godzilla film poster. The artwork will be judged by the film’s director, Gareth Edwards and the winning entry will be featured in Odeon cinemas.” There was no financial reward listed and Warner Bros were in no way ceding their rights to the Godzilla movie assets, but it’s an acknowledgement of fan creativity which the business is openly seeking to use to promote its product.
OF FAN COMMUNITIES AND BUSINESS MODELS
Amazon has embraced fanfiction through licensing via its Kindle Worlds project. Authors can submit stories inspired by specific worlds which Amazon has licensed. The stories are then made available for readers to purchase. The royalties from these stories are paid to the rights holder and to the fanfiction author with the fanfiction author getting from 20-35 percent. The worlds licensed for use in the programme include Gossip Girl, The Vampire Diaries, Veronica Mars and the World of Kurt Vonnegut.
Another interesting area is in gaming, where community contributions are being encouraged. Valve uses the Steam Workshop as a space where player-created content can be bought. The proceeds then get split between Valve and the item creator. A portion of Valve’s split can also be directed towards toolmakers and service providers whose work has been used in the creation of the items.
Valve’s more open approach can lead to the assumption that the company is fine with other types of monetisation, though. That means Valve still needs to actively deal with infringements, although some have happy Valve-sanctioned endings. Artist Robin Wild started creating fan art featuring characters from Valve’s Dota 2 game reimagined as rag dolls. “Once I got about halfway [there are over 100 characters] I thought, I’ve invested quite a lot of time in this, maybe I should try and get something for it.” To that end he began distributing the shirts through a print on demand e-commerce service until Valve sent a takedown request. “I was kind of under the impression that because Valve is so open to the community profiting – they’ve got the whole Workshop – I thought maybe they would encourage that sort of thing but they want people to do it through their channels.”
But that wasn’t the end of the story. Wild was later contacted by We Love Fine, a third-party which works with Valve to get the company’s approval for selling fan-designed products. A couple of his designs are now on the We Love Fine site and his work will also be included in the official shop catalogue for Valve’s upcoming multimillion dollar Dota 2 professional gaming tournament.
A BLIND EYE CAN LEAD TO BETTER RELATIONSHIPS
Broadly speaking, the attitude of creators when it comes to copyright and online fan creations is often to turn a blind eye unless the content being created is monetised or is otherwise significantly objectionable. To do anything else places a restriction on the activity of the fan community and makes the author seem threatened rather than positive. This said, legally-speaking, if there’s been a substantial taking from the original copyright work, there’s nothing stopping them enforcing their rights.