Liosse de Velishaf
Banned
Count me as someone else who doesn't think legality plays into whether something is fanfiction or not. Mostly because of the following:
1) People keep talking about the "legal definition" of fanfiction -- is there a legal definition of the word "fanfiction" in any jurisdiction? I wasn't aware it had been legally defined.
2) Laws are dependent on time and place. Are we talking about U.S. law here? Current U.S. law? If the copyright laws in another jurisdiction differ, does something magically become not fanfiction if we take it over a border? If the author is from somewhere else? If the original creator is from somewhere else? That feels a little silly to me.
3) It also feels silly to me to say something that is "fanfiction" magically becomes "not fanfiction" the moment the copyright expires.
4) To me, there is nothing creatively distinct about crafting a derivative work of something that is in the public domain -- or something that is licensed -- and crafting a similar unlicensed work that is derivative of something under copyright. i.e., I would see no automatic craft distinction between Pride & Prejudice & Zombies and Downton Abbey Zombies. There is, of course, a legal distinction in what can be done with them.
I guess I see fanfiction as a creative term rather than a legal one.
And I see transformative works as a broad continuum. There's no big black line for me on which one side is fanfiction and on the other side is original work. Even work we would term wholly original takes inspiration from other things we have read or seen in a myriad of small ways, whether it's a response to or a homage to or a reaction against. So we have that at one side of the continuum, and we have id-satisfying fanfiction at the other side of the continuum, and in between we have a whole mess of creativity.
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That's basically how I feel about it, as well. Why call it fan-fiction if what you really mean is illegal derivative works? To me, the name says it all: fiction written by fans of an intellectual property.