The Lawbringer: The trouble with fan fiction

Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Running parallel to the games we love and enjoy is a world full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?

Finally, I return home after a bit of bliss. Fun is over -- it's time to get serious by talking about fan fiction. Sort of. You see, fan fiction is one of those areas that people love to hate, hate to love and everything in between. What is it about fan fiction that gets people so upset and so defensive? Is it the personal nature of the craft, the accusatory piggy-backing on other people's characters, or just that so much of it is mind-numbingly terrible? Who knows? Today, we're going to explore a few of the concepts of fan fiction in a very no-nonsense, barely legal way, to give you aspiring authors something to consider while writing your own fan fiction or even original content.

With my post-vacation bliss now completely out of my system, thanks to reading so much terrible fan fiction in preparation, I am happy to share with all of you a story that I've been writing for the last minute and a half. Don't be cruel, now. It's pretty much going to become the greatest story ever told. Enjoy.

If you read through those horrid two paragraphs, I salute you. There is no way that reading through the sordid tale of Dargonarth Silversun was harder than writing it. Dargonarth's story raises some pretty interesting questions, though. First off, the character does not exist in World of Warcraft, or the expanded universe, or any of the other games in the Warcraft series. Dargonarth is a figment of a very gifted and talented imagination. Second, is it even fair to expand on someone's work?

Copyrighted works exist alongside so-called "public domain" works. Simply put, works are considered in the public domain if they have no copyright status or laws that govern them. Shakespeare's plays, for example, have no copyright associated with them, since Shakespeare is long, long dead. World of Warcraft and the characters that exist in the fiction, however, are very much protected by copyright laws. One day, sure, Thrall and company will be in the public domain. Until then, there are rules governing the use of these characters.

Fair is fair

Fan fiction is one of those things that exist in a sort of nebulous world of "maybe" under the copyright laws of the United States. The Organization for Transformative Works (OTW) has been fighting the good fight for fan fiction for a while now, taking the position that fan fiction is a transformative work, i.e., the author of the fan fiction has added something new in an experience and mindset viewpoint, not actual cannon, to the original work under the fair use exception.

Fair use gets thrown around a lot, as well. Basically, fair use is the act of using someone's copyrighted material without the owner's slapping a bill on the table or even giving permission. Fair use exists because, otherwise, expounding on other's ideas would be difficult or impossible. And really, some amazing stuff has come from fair use, parody and critique. There's also the infamous EverQuest fan fiction kerfuffle of Mystere and her vivid descriptions of engaging in ... well ... let's just say "open PvP."

Money, money, money

There's a four-part test that courts use to decide if something is covered under the fair use exception, but as most things in the legal world are concerned, it mostly comes down to the first factor: profit. Arguably the most weighted question is whether the work was being created to garner some profit off of someone's characters, settings, etc. Let's look at two different fan fiction authors.

First, we've got Jimmy. Jimmy loves him some Warcraft, so he pens an artistic tale of love and redemption for his favorite character in the game, "Silvermoon" Harry. "Silvermoon" Harry's story involves the band of pirates he hangs with out at Scalawag Point, and the back-and-forth, romantic, cat-and-mouse relationship he has with his dashing "blood elf" mistress, probably instrumental in Yogg-Saron's imprisonment. Jimmy wrote this wonderful story on his laptop, printed out a few copies and handed them out to his friends. No profit, no problem. Does Blizzard really care enough to sue little Jimmy for using its characters when, really, it's not hurting its brand? (Well, maybe among Jimmy's circle of friends. Or maybe it's just hurting Jimmy's reputation ...)

Second, we've got Thrall and Friends, publishers extraordinaire. These guys compile fan fiction stories into volumes and sell them at trade shows. Things become more interesting because profit is now involved. Let's say a random author writes "Thrall's Story: The Real Truth," a tell-all narrative about the life and times of Thrall included in a compilation. An original character is created to be his buddy in this Kerouac-esque movement piece set in Hillsbrad. The book sells for cash. The profits of this book can be directly linked to the inclusion of a copyrighted character. Further, one could argue that this book's audience now sees this copyrighted character in a canonical new light, hurting Blizzard's brand.

Take the profit motive to the next level. A site like Fanfiction.net, for instance, is ad-supported through Google's ad programs. This repository of all types of fan fiction includes copyrighted characters and stories for which no authors or companies have given permission for their characters' use, but the site still makes money. Fanfiction.net has a copyright policy akin to the Digital Millenium Copyright Act's "takedown" notice, which allows copyright holders to ask for the infringing works to be taken down. You've seen it in action before -- YouTube regularly pulls down copyrighted material at the request of the copyright holders.

Create your own!

So what are some guidelines for safe fan fiction production? Here are some tips to consider when writing your own adventures of Dargonarth and his best buddy Kael'thas Sunstrider. First, don't sell it. Selling your works based on other's copyrighted characters might land you in trouble, if only because profit is a huge factor in most intellectual property cases. If you're doing it for the fun of it, keep it free and flowing, letting the world see your work. Remember, though, that this alone doesn't safeguard you. It is still a violation to use a copyrighted character, but the profit factor is a big issue.

Second, don't pretend it's yours. One of the worst things you can do with someone else's copyrighted material is pretend that it's yours. It's not. We know it's not. You're not fooling anyone -- unless you are fooling people, which lands you with a hefty fine and a whole bunch of legal bills. Pay deference to the characters you include in your own works, but don't pretend that they are yours.

Fan fiction has been both lauded and trampled on in the publishing community for some time. Notably, J.K. Rowling of Harry Potter fame has come out saying she was flattered by people creating in her universe. Naomi Novak, author of the Temeraire series of novels, also believes fan fiction has a place online, even a crucial nature. Other authors believe that fan fiction is damaging to their brands. Representation does exist on both sides of the debate.

By no means is this a comprehensive discussion of the legality of fan fiction, mind you. We're talking about the grand scheme -- the big issues, just asking some questions. Broad strokes with a broad brush. Take the discussion for what it's worth -- a quick look at some of the odder aspects of the stories you write. Because, one day, you're going to create something absolutely amazing and you'll want to protect it. And you'll want to sell it.

This column is for entertainment only. I hope you laughed at least once, right? Are you not entertained? If you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wow.com.