the delphic expanse

Check this out, from NPR: 'Fifty Shades Of Grey': Publishing's Sexiest Trend

Publishing has a new unlikely heroine: an unknown author named E L James who recently scored a seven-figure book deal with Vintage Books to publish her erotica trilogy, Fifty Shades of Grey.

Brimming with purple prose and racy imagery, the series had already sold more than 250,000 eBook and paperback copies through Australia's Writer's Coffee Shop Publishing. The New York Times ran a photograph of the book on a shelf at Watchung Booksellers, where a tag tantalized readers: "Yes, this is THE book everybody is talking about."

The buzz has catapulted the book to No. 1 on the New York Times paperback best-seller list, but there's one thing no one is talking about — the origins of this kinky best-seller and its implications for the industry.

The book emerged from the steamy land of fan fiction, an online community of readers who write unauthorized extensions of their favorite stories.

[...]

Jamison argues that the story and the success of the book pose a unique ethical and legal problem for the publishing industry: "Whether the explicit, conscious use of another writer's fan base, via creation of characters known and experienced as 'versions' of the writer's characters, for commercial purposes, constitutes any kind of damage or infringement."

It's a question the publishing industry must reckon with. Publishers have a bad habit of chasing trends, and James' success will undoubtedly spawn a wave of repurposed fan-fiction erotica in the coming months.

Discuss.

Very interesting news! I was actually wondering if you can make the transition from fan fiction to published works. I know that Star Trek has the Strange New Worlds series, which is dedicated to stories written by fans. I suppose that qualifies as published fan fiction.

I see fan fiction as a proving ground for one's writing skills, a way of getting yourself into shape for writing an original work that can actually be published with no copyright infringement issues. I see that this lady has managed to accomplish what to me seemed to be the impossible.

I'm not sure how I feel about this. I heard about this on another site, and a lot of the commenters there were saying that they'd previously read the story on ff.net and the author just changed the names of her characters from "Bella" and "Edward" to something non-Twilight related, but that it was clearly still Bella and Edward she was writing about. Is that fair? Could one of us write a story about, say, TnT, upload it to all the fanfic sites, have it read by lots of people as a TnT story, and then just change the names to have it published for retail sale? Is that infringing or is it fair use? Of course, whose to say that a lot of published authors aren't already using the inspiration of other people's characters but just haven't gone through the fanfiction medium first? Sorry. I'm rambling. I haven't read the books or the stories online, so perhaps I'm not being fair. I'm just curious.

I am presenting a paper about fan fiction and its ambiguous legal status within copyright and fair use at the end of the month.

Fair use is considered by four factors, and a story does not have to "pass" all four in order to be considered a fair use of a copyrighted work, it just has to have one factor or a combination of several weigh heavier in favor of the story than the factors that don't. A piece of fanfic, for example, is almost never going to have the second factor weigh in favor of it, because that factor says that copyrighted works of fiction deserve more protection from infringement than works of non-fiction. (Ie, an encyclopedia can't sue you for using facts you got from it.) However, if the piece of fanfic is not for profit, does not compete with the original work in any way, and the "amount and substantiality" of the material borrowed from the original work is sufficiently low (amount refers to word-for-word quantity and substantiality allows for the fact that the infringing author may have borrowed very little quantitatively, but what little they did borrow is the "heart" of the original work), a piece of fanfiction can be perfectly legal.

Unfortunately, the "amount and substantiality" thing gets a little hairy. You know those fics that are wildly out-of-character? And I don't mean gentle reinterpretations in terms of, say, a slash pairing when the "assumption" that the characters are heteronormatively straight. I mean the fics where the nice guy clean cut straight male lead are suddenly starring in a story in which he's a necropheliac cannibalistic pedophile, etc.--basically, the characters and the world they inhabit are so mutilated by the author they are damaged beyond recognition -- THOSE stories are offered more protection under fair use than the stories where the author took the care and time to replicate the tone of the universe and make sure the characters "sound" like the ones we see on the show. Why? Because the "mutilation" means the story is sufficiently transformative. Sticky, right?

There are those, however, who argue that fanfic is more akin to parody, which is not restricted to borrowing the bare minimum necessary. Parody, it is argued, needs to borrow a sufficient amount from the original work to remain easily recognizable, and to limit how much it can borrow would undermine its purpose. Fanfic, likewise, must borrow enough to be recognizable.

So, so far, so good -- at least as good as it gets, when you consider that no case involving fanfic has ever made it before a judge in order to be tested in fair use. Why? Because corporations have deeper pockets than the average fan -- cease and desist orders are effective against fans who either don't understand their rights, or don't have enough money to exercise them.

At any rate, the author in question in the article was with us up to this point.

If the above-mentioned author was smart, he or she would have PUBLISHED UNDER A DIFFERENT NAME and not told anybody that they tweaked a piece of fanfic they wrote. I hate to tell you, but this happens a lot more often than we're aware. And I'd think of how I'd feel as a writer...yes, the characters and universe that inspired my story are someone else's, but the plot, the situations I put them into, are MINE. In terms of TnT -- sorry, rocky romance where the parties involved are from different sides of the tracks is hardly an original idea that began with them. Furthermore, there are only a finite number of plots and character types out there -- the devil is in the details and how artfully you use language to make them seem fresh. Case in point: my professor pitched a few scripts to DS9 back in the day, and after he pitched one he was especially proud of, they told him, "yeah, we just shot our version of The Searchers a couple of weeks ago." So not only did he independently come up with an idea similar to the writers and producers, both versions were informed by a John Ford movie.

So...can we really say that what this author did was all that wrong? My inclination is to say that adapting his or her own story for publication wasn't such an awful thing, but how they went about it seems questionable.

^Kinda reminds me of something I read in a different fandom not too long ago about an author who wrote a story in one fandom (Real people K-pop fandom) and then basically swapped out the names with a different band (Real people J-pop this time) and put it up again. It's still her story so not technically wrong but it comes across as a very dodgy thing to do.

Lady C wrote:^Kinda reminds me of something I read in a different fandom not too long ago about an author who wrote a story in one fandom (Real people K-pop fandom) and then basically swapped out the names with a different band (Real people J-pop this time) and put it up again. It's still her story so not technically wrong but it comes across as a very dodgy thing to do.

If the author did that on ff.net, then she's in violation of their terms of service. They clearly state that you post a story only once, no changing names and posting the same thing in several places. OK, so it doesn't earn her a cell next to Blago, but the rule is pretty staightforward. If she'd bothered to read it, then she'd know whether she was abiding by it or not.

I'm finding the comments made about the articles concerning 50 Shades of Gray to be more interesting than the articles themselves. One blog post that seemed to come from the romance novel angle asked about fan fiction community expectations. The consensus in the responses seemed to be that they didn't particularly mind that one of their own had gone on to write professionally. They didn't seem to be all that upset that what the author was being paid for had at least started out based on the intellectual property of another. The big unhappiness seemed to be that she had used a story originally posted as one where she didn't (and by extension, I suppose, would never) seek profit and that she didn't acknowledge all of the reviews, support, beta reading, suggestions, etc., that she got from the community. It came off to me as more we're unhappy because we were used rather than we're unhappy because she infringed on copyright and used the work of another author. That may not be what they meant, but it's how it came across to me. Wasn't exactly what I expected.

I had to laugh at the guy who basically said that all the sex gets boring. The dress may be a different color, but the description of the "assets" are the same as is the description of how "tab A" gets into "slot B." As Prude Girl, I'm glad I'm not the only one who feels that way. In trying to track down some good Reed/Hayes to recommend, reading several stories in succession emphasized that there is apparently only one school of smut writing and everyone went to it. He's right. It does get boring!

Since Hubs told me about this story, I really haven't had a chance to give it much thought until now. And even now, I still do not know how I feel about it, very conflicted.

Some things that came to mind are that authors can fall anywhere on the spectrum of how they feel about others use of their work. Some authors may not like anyone daring to touch a hair on their character's perfectly placed head. Those authors have already swallowed their pride enough to have an editor go over their work and don't want anyone else to do so. Then there are authors that let their children run free in the world (within the boundaries of the publishing company) to be transformed in the fanfiction community to have all sorts of things done to these beloved characters of theirs.

I think for those authors that are gracious enough to allow fanfiction of their work freely, this is a breach of that respectful relationship that is often pushed to its limits. On the other hand, if she had an original story (for the most part), then why not have her work shared with others on a greater scale? Like I said, conflicted. And then there is the problem with not acknowledging whatever contributions came from the fanfiction community.

As Aquarius suggested, keeping quiet may have been better for everyone. But I get the feeling she may not have been able to keep the origin of the story secret because it had such a following in the fanfiction community. If she's outed, I think she should at least start handing out credits quickly.

As for "tab A" gets into "slot B", if this is the case with her story, perhaps she could have benefited from a smut workshop like ours!

Also a very close friend in a publishing company pointed me in the direction of very awesome adult fiction. Before her recommendations, I thought they were all tabs and slots and Jackie Collins clones. There were some with fresh stories that I was addicted to instantly. But even among these "different" kinds of stories that I've taken to, there is still the same rich, distant, hunky male and the awkward, vulnerable female dynamic that runs strong in them much like the borrowed Twilight characters in 50SoG (I'm guessing from descriptions of the story and Twilight).

Glory1863 wrote:If the author did that on ff.net, then she's in violation of their terms of service. They clearly state that you post a story only once, no changing names and posting the same thing in several places. OK, so it doesn't earn her a cell next to Blago, but the rule is pretty staightforward. If she'd bothered to read it, then she'd know whether she was abiding by it or not.

It was on Livejournal afaik - i don't think you're allowed to post real people fic on ff.net anyway.

What about the disclaimer that you don't own the characters and aren't making profit from it that goes with every fanfic? Does the fact she changed the names invalidate that? Because clearly now she is making profit from somthing that started as fanfic.

Lady C wrote:It was on Livejournal afaik - i don't think you're allowed to post real people fic on ff.net anyway.

What about the disclaimer that you don't own the characters and aren't making profit from it that goes with every fanfic? Does the fact she changed the names invalidate that? Because clearly now she is making profit from somthing that started as fanfic.

Let me give you a scenario:

I'm living in Los Angeles and I'm trying to make a career as a TV screenwriter. A show's producers have looked at my sample script and expressed interest in me. My agent calls and tells me I have an appointment to pitch on Monday morning.

Knowing that I have to go in with a minimum of three ideas to pitch, I come up with a couple of treatments for episodes of this show. I look at my shelf, and there sits a treatment for a story I pitched to another show six months ago -- a wildly successful, highly-rated one-hour drama. They passed, but I still have faith that the story is solid. Flipping through it, I realize that this could easily be re-tooled to suit the new show and if I use it, I've got my three I need, and I'm under less pressure. If I come up with more between now and Monday, that's just the icing. So I change the names and the setting, merge two characters into one because this show's cast is structured a little differently.

Monday I go in and pitch. They love me. They buy the treatment, and they like me a lot, so they're going to give me the first crack at writing the script instead of taking it in-house from there. Whether they use my draft or not, I get paid for it, and I'm getting paid for the treatment.

I'm now profiting from something that was made for someone else's show, I've just retooled it into something someone else was willing to buy.

Is what I've done questionably ethical? Because it doesn't strike me as all that different from what the fanfic author did -- and it happens all the time in the professional world, because writers need to eat, and they believe in their ideas.

I know the hang-up point is the original disclaimers, etc., that begin with fanfic. However, one of the factors of fair use is that a work has to be sufficiently transformative to be a fair use of copyrighted material. Yes, the name change added to her original plot may be enough to pass muster in front of a judge. Of course, she leaves herself open to a cease and desist order for the original piece of fanfic if the Twilight people choose, but that doesn't make the new version of the story less transformative. It isn't the author's piece of fanfic a judge is going to compare the commercial work to if this goes to court, it's the Twilight stories they're supposedly derived from. If the story can pass the "amount and substiantiality" factor, fine. If not, she's shot herself in the foot, and will probably take some of the rest of us with her.This is totally untested legal ground, since no case involving fanfic has gone to court.

You'd think people would've learned from Loir Jaero. What she did was different, but the chief complaint in both cases is likely to be that the authors have brought unwanted attention upon the community by going public in such conspicuous ways. That's why my fanfic gets written under a pseudonym, and when I publish, it goes under something else. Fanfic writers have been doing it for years -- except the Trek writers under Gene's watch didn't really have to because he was down with what we do. Hell, he made sure some of them have careers.

crystalswolf wrote:I think for those authors that are gracious enough to allow fanfiction of their work freely, this is a breach of that respectful relationship that is often pushed to its limits. On the other hand, if she had an original story (for the most part), then why not have her work shared with others on a greater scale? Like I said, conflicted. And then there is the problem with not acknowledging whatever contributions came from the fanfiction community.

This is exactly what has me feeling conflicted, too. On one hand, I know I would feel so happy if one of you guys was published. I've read some really, really good stories here and on a couple of other sites, and some of them I could totally see being expanded upon and turned into something larger with the names changed. And, as Aquarius pointed out, it's done all the time. Everyone from Shakespeare to the author of Pride and Prejudice and Zombies is ripping off someone. We're all inspired by other writers, other story tellers. Yet something about taking a story straight from a fanfiction site and publishing it largely the same with different character names just bothers me a lot. I can't quite put my finger on what it is.

All I do know for sure is that I agree with Aquarius that it's a good idea for everyone to publish their fanfiction stuff under pseudonyms. I've even heard a few rumors about some well-known authors who try out experiments in their writing by writing fanfiction under pseudonyms.