The Public Domain, Fan Fiction, and Jane Austen: Literary Re-appropriation

Man, Jane Austen can't get a break. Back when the struggling English writer was crafting Sense and Sensibility (1811), Pride and Prejudice (1813), and Emma (1816), most people didn't pay much attention: those novels garnered a whopping twelve reviews while she was still alive. It wasn't until the 1940s that people started looking at her work and calling it "great" in the English literature sense (1). Too late for the long-dead Austen to care much.

Of course, one wonders what any artist would think of how their work is regarded and treated in the modern era. Would da Vinci appreciate the parodies of The Mona Lisa or The Last Supper? Would Austen appreciate her work being turned into a zombie flick, a la Seth Grahame-Smith's partial additions to the text of Pride and Prejudice to create Pride and Prejudice and Zombies? Or would she be more offended by the sex-in-every-position-in-every-venue-heaving-bosoms nature of Mr. Darcy Takes a Wife, one of many sequels written to her most popular work?

This is all abstract in a way, as da Vinci and Austen have been dead and gone for a long time, and their works have since passed into the public domain-meaning that they are not protected by copyright and can be reprinted, adapted, muxed, mashed-up and generally trashed, to whoever's whim. But such remixing is not limited to public domain work. In the literary sphere, there is fan fiction-stories written by fans, unauthorized by the creators or handlers of a media franchise. Wikipedia helpfully provides the following quote by media scholar Henry Jenkins on one of the motivations of fan fiction:

"The encyclopedic ambitions of transmedia texts often results in what might be seen as gaps or excesses in the unfolding of the story: that is, they introduce potential plots which can not be fully told or extra details which hint at more than can be revealed. Readers, thus, have a strong incentive to continue to elaborate on these story elements, working them over through their speculations, until they take on a life of their own. Fan fiction can be seen as an unauthorized expansion of these media franchises into new directions which reflect the reader's desire to "fill in the gaps" they have discovered in the commercially produced material" (2).

To a heavy degree, there is little difference between Mr. Darcy Takes a Wife and fan fiction, whether the universe these unauthorized creators populate is Star Trek or Harry Potter. Both are essentially tales spun by a fan of the original work who in turn "fills in the gaps" left behind. The difference here, however, is that while Austen's catalogue is open and public domain, Star Trek, Harry Potter, Star Wars, and other popular fan fiction subjects are all modern franchises protected by copyright. The science-fiction space epic franchise Halo, for example, contains video games, novels, collectibles, action figures, soundtracks, and to date has generated a whopping $1.7 billion in sales around the world (3). It's in franchise overseer Microsoft's interest that all possible revenue is controlled by them, and fan fiction could be seen as a threat to that.

Let's back up for a moment. Where did fan fiction come from? The tradition of storytellers adding, revising, or otherwise altering stories, unwittingly or otherwise, in a retelling, has elements of today's fan fiction. What we know of now as the modern hero myths were probably cobbled together over generations by people who enjoyed the original stories heard around the campfire. When Cervantes was slow in producing the second volume to Don Quixote, others stepped in. In the present day, authors like Austen and Arthur Conan Doyle had their characters re-appropriated and rejoined in new exploits. Modern fan fiction, however, started in the 1960s with fans of the television series Star Trek. Star Trek only ran three seasons from 1966-1969 due to poor ratings, but it found a devoted niche of fans who were eager to continue old stories or dream up new ones when the show was cancelled. The vast majority of these writers were female (a stark inverse of the demographics of the show), and in many ways such a similar disproportionate trend is seen in many franchises (4).

All this, however, ignores the question of whether fan fiction for works under copyright is even legal. In one sense, even aggregating facts from fiction has been shown as copyright infringement in the courts; in a 2008 case J.K. Rowling stopped a fan site from publishing an encyclopedia detailing her Harry Potter universe (5). Even more germane was a 2009 court case where the reclusive J.D. Salinger prevented a Swedish author from publishing his own sequel to The Catcher In The Rye, Salinger's signature novel (6). The rationale used (unsuccessfully) in the defense of these derivative works was that they fall under fair use; such works can use copyrighted content without explicit permission from the author.

At the same time, while there is legal precedent for the authors, not every one is going to be prosecuted. The School Library Journal recommended the following to fan fiction writers: "...To keep you and your teens out of trouble, we recommend that you observe a few basic ground rules. First, don't try to sell your fanfiction stories. Second, if the original work's author asks you to remove a story you've posted online, just do it. And in a twist on the military's "don't ask, don't tell" rule, as long as you aren't trying to profit from your writing and the work's original creator hasn't objected, it's fine to keep your story online" (7).

The Journal applauds fan fiction as developing writers and giving them something fun to write about, but on this point I respectfully disagree. Fan fiction, whether legal or not, is, at its core, a cheap derivative. Virtually all fan fiction is worse than the original-after all, who would riff on a bad work? While it can be an amusing diversion, ultimately, for those serious about writing, it's a time waster. While there are in fact fan fiction writers who have published their own work after words (and been recognized because of their fan creations), more often by catering to other fans they are excluding heavy literary criticism, not improving, and being dismissed (perhaps unfairly) as hacks. The best remedy for those writers is to learn from their favorite works and universes and build on their spirit, not their characters.

References
* (1) Fergus, Jan (1997). "The Professional Woman Writer", from The Cambridge Companion to Jane Austen. Cambridge University Press (ISBN 0521498678).
* (2) Jenkins, Henry (March 22, 2007). "Transmedia Storytelling 101". HenryJenkins. Accessed May 22, 2010.
* (3) Parker, Laura (May 19, 2010). "Halo novels get a makeover". Gamespot. Accessed May 20, 2010.
* (4) Coppa, Francesca (2006), "A Brief History of Media Fandom", in Hellekson, Karen; Busse, Kristina. Fan Fiction and Fan Communities in the Age of the Internet. McFarland & Company (ISBN 9700786426409).
* (5) "JK Rowling wins Copyright Claim". Sky News. Accessed May 30, 2010.
* (6) Chan, Sewell (July 1, 2009). "Ruling for Salinger, Judge Bans 'Rye' Sequel". The New York Times. Accessed May 31, 2010.
* (7) Burns, Elizabeth; Carlie Webber (August 1, 2009). "When Harry Met Bella". The School Library Journal. Accessed May 31, 2010.