Paradigm Shift: Copyright & Fanfiction: Who Owns What?

Missing Pages, Season 2 Episode 2 - Copyright & Fanfiction: Who Owns What?

Bethanne Patrick: 

Please note that today’s episode includes sexual references.

Johannes Gutenberg’s printing press revolutionized the replication of texts and made them available to more and more people – and with that came copyright law.

In 1709, British Parliament enacted a statute to prevent anyone from copying a published book for 14 years after publication – enabling authors to make money with their craft. The laws have been updated a few times since then. Today, a writer’s work is protected for the duration of their life plus 70 years after…which profits an author’s estate long after they’re gone. 

And for stories-turned-franchises, like Superman and Star Wars, copyrights make fortunes for their domain holders. But that hasn’t stopped avid fans from developing their own lore within the legally protected worlds.

That lore has come to be known as fanfiction.

The Graham Norton Show: Michael Sheen Clip

“But they seem quite passionate, those fans -” “Oh they’re very passionate, absolutely, there’s a lot of fanfiction going on out there”

Bethanne Patrick: 

Fanfiction, which consists of fiction written by fans or writers of certain stories, characters, and franchised narratives, has restored the collective aspect of storytelling. 

In the digital age, amateur fanfiction writers publish stories each day that build upon one another in extensive forums, through fan commentary. 

The Graham Norton Show: Michael Sheen Clip (00:55 - 01:05)

“It's such a love of the show and it shows such commitment to it, I think it’s wonderful. I mean it does involve on Good Omens, me and David Tennant having sex, mainly (laugh)”

On Fanfiction.net, there were 14 million published stories as of 2022. Wattpad, a newer fanfiction community, has 94 million users who collectively spend 23 billion minutes on the app each month. And to be clear: this is a hobby for the vast majority of practitioners. For most of its history, no one has really sought to make money doing it. 

But that’s a lot of fiction…and it doesn’t just sit there. It evolves as the communities do. 

The point here is: in fanfiction, the line between fan-powered fantasy blog and professionally-written story can get pretty blurry…especially when fans of a certain lore come to pedestal certain creators in their community who, by the way, don’t exactly have a legal license to riff on the IP.

This begs an important question. In a world where popular fanfic writers can achieve a following,  where exactly does power reside? In the hands of the writers who contribute their adaptations to the websites? But what happens when a successful hobbyist wants to publish their derivative lore in a more professional sense? Even more intriguing, what happens when they want to corner the market of their entire sub-genre?  

More recently, this question has sparked huge debate in the fanfiction world… threatening the modern practice of public, collaborative storytelling altogether.

LINDSAY ELLIS YouTube: Into The Omegaverse

So a few months ago there was this article in the new york times with the title a feud in wolf kink erotica raises a deep legal question subheader what do copyright and authorship mean in the crowdsourced realm known as the omegaverse

Bethanne Patrick: 

Welcome back to Missing Pages. I’m your host, literary critic and writer, Bethanne Patrick. This is the podcast where we examine some of the most surprising, industry-shaking controversies in the literary world and try to make sense of them. 

This is the second episode in a series where the social media age has created new opportunities and challenges for publishing. In this episode, we’re discussing a scenario where it’s not clear who really owns the work because a single author cannot be identified.

We’re journeying into the land of fantasy characters and the people who spend their time writing stories about them, to explore the legal battles underlying the world of fanfiction.

Chapter One: Fanfiction and The Wolfkink Lawsuit

When I think of fan fiction, I remember the first and only Star Trek convention I ever attended. I went with a friend, not sure what to expect. Would I be ridiculed for not speaking Klingon? Would all the Trekkies be off-puttingly anti-social? Instead, I discovered what it was really about: this was something people had centered their whole lives around. There was this aspect of story as a living, breathing experience that opened my eyes to a different kind of interaction with stories.

And so I think the real entry point in today’s discussion is: what exactly is fanfiction and what does it do for those who embrace it? To help me answer this question, we got in touch with Elizabeth Minkel .

Elizabeth Minkel:

My name is Elizabeth Minkel. I'm a fan culture journalist and I am the co-host of the Fansplaining podcast.

Bethanne Patrick: 

Perhaps evident from its name, “The Fansplaining Podcast” illuminates various aspects of fan fiction…a topic that still needs some defining.

Elizabeth Minkel Interview:

It's when you use established worlds, so characters, plot setting, et cetera, and you create new stories out of them. So there's a lot of things in the history of literature and in our current storytelling universe that are, you know, taking one thing and creating new stories out of it, like reboots, adaptations, et cetera, et cetera. But fanfiction, uh, to me is an intentional practice. It's when people say that they are participating in this practice within fan groups, and so they post their work online. They interact with each other, they share these stories for free. It's a lot of free labor. And there are tropes and norms and head cannons and all sorts of things that kind of get passed around in this giant messy, overlapping series of amateur writing spaces.

Headcanon refers to one’s personal take on a story’s canon…like thinking the fairy godmother in Cinderella is Cinderella’s mom in ghost form. It’s canon that exists exclusively in one’s head…and, sometimes, winds up in reddit threads.

Other headcanons feel more minor to a story – like one Harry Potter fans’ suggestion that Professor McGonogall lives in a muggle community when she’s not teaching at Hogwarts. These communities go all the way back to the 1930s and have always been really niche and, you know, delightfully dorky. 

And across the 20th century, fans engaged with this headcanon by putting out fanzines, where they could share their work with other fans. It was the Wild West for fandom communities.

YouTube: The Rise (and Rise) of the Omegaverse | Video Essay:

Essentially writing about an alternate version of our society where everyone has a secondary gender or sex outside of just male and female, that involves some interesting changes to their physical anatomy, shall we say, that we will dive into a bit later in more detail.

Bethanne Patrick: 

By the end of the 20th century, thousands of fanzines were accessible for consumption. Some of those included content adapted from source material that wasn’t traditional literature – like Star Trek fanfictions, which often followed the characters Kirk and Spock.

With the internet, the fanzine scene turned digital – people found community within these spaces, where lore evolved constantly and collaboratively. 

ELIZABETH MINKEL INTERVIEW

So the communal element is really at the heart of it.

ELIZABETH MINKEL INTERVIEW (4:05 - 4:08)

Anyone can write fan fiction in isolation. But there is something about participating in the community or at the very least putting your work into this pool. So you have this kind of long history of, at least if fan fiction online, you know, people, uh, creating things via discussions and forums, turning into works of fan fiction or back in the live journal era, that was when it was really, really collaborative, you would have these things called kink memes and someone would say, I'd really love to see blank. And then someone would write their version of that in the comments and then a few comments down, someone else would write a different version and then a few down, someone would write kind of a remix of those two, right? So it was really, really interactive and it was a communal writing practice.

Bethanne:

Why were people so willing to just…share and collaborate?

ELIZABETH MINKEL INTERVIEW

I think a lot of that does come down to the fact that there is not money involved. People I think really come at it with a communal sharing sort of spirit. This is always the idea of like, oh, I've read, I've already read 500, like fake dating stories about these two characters. Oh, why not one more?

Bethanne Patrick: 

It’s important to note that the stakes in online collaboration are lower compared to traditional publishing. In the realm of fanfiction, people are more comfortable recycling and repurposing material…kinda like jazz music…people riffing off of, celebrating what came before. In live concert, this works. In a fan forum detailing the unsavory exploits of Ron Weasley’s clandestine affair with Draco Malfoy, this works. 

YouTube Tom Felton reads his first fanfiction

“Hey! Ebony” - shouted a voice. I looked up it was Draco Malfoy. ‘What’s up Draco?’ I asked. ‘Nothing’ he said shyly. But then I heard my friends call me and I had to go away. Okay how’s that? Chapter one done.

Bethanne Patrick: 

But when it comes to the commercial viability of putting forth derivative work for profit, there’s some legal gray area. So bear in mind, this kind of community-oriented storytelling is only legal because no one’s profiting on it. In other words, the people posting derivative work aren’t setting out to commercially publish it…typically. 

How ‘After’ author Anna Todd built erotica empire from One Direction fan fiction | Nightline

I basically put everything I've ever loved like Pride and Prejudice, Wuthering Heights Vampire Diaries, even Cruel Intentions, 50 Shades, like everything, Twilight, everything I've loved I just like dumped it in a bowl and stirred it basically and I tried to find ways to make it almost even more intense

Bethanne Patrick: 

And this allows for ideas to iterate really quickly, because writing a new story is as simple as taking ideas in the comments on a story and whipping up a rendition overnight to post the next day. Don’t get me wrong, there are people who devote effort and time into their stories, but the widely-accepted fanfic practice of using pre-existing concepts and plotlines makes riffing a non-issue.

ELIZABETH MINKEL INTERVIEW

You have tropes that will start in one place and someone else will pick them up and bring them to another fandom, and then they'll transform it a little, and then they'll transform it a little more.  

Bethanne Patrick: 

Remember the massive bestseller 50 Shades of Gray? 

ABC News: 'Fifty Shades of Grey' Author E. L. James's First Interview on Career, Erotic Novel

We're talking about the blockbuster novel that has really taken the publishing world in Hollywood and possibly yours on your neighbors bookshelf by storm we're talking Fifty Shades of Grey. It's the steamy novel that everyone is reading.

Bethanne Patrick: 

E.L. James began by writing Twilight fan fiction on fanfiction.net, and when it was deemed too racy by the community – this is true, btw – she decided to try her hand at adapting the characters and 50 Shades was born.

ABC News: 'Fifty Shades of Grey' Author E. L. James's First Interview on Career, Erotic Novel

James first posted her titillating tale on a Twilight fan fiction website and the word-of-mouth frenzy began. Then an independent publisher put the books out online and in less than a year more than a quarter of a million ebooks had already been sold. “Did you ever imagine this would take off the way it has?” “Never in a million years, never.”

Bethanne Patrick: 

But then sometimes these authors get defensive about what’s “theirs,” and when that happens the conversation surrounding what’s fair use can get messy.

LINDSAY ELLIS QUOTING ADDISON CAIN’S RIDICULOUS FB POST

“My publishing house has chosen to take legal action against another author for plagiarism and copyright infringement of one of my books. They own the rights to print and distribute my story, and should an outside influence try to profit from it, they are legally bound to respond.”

Bethanne Patrick: 

That’s a YouTuber giving voice to a pointed comment made by Addison Cain, a fanfic writer who took her story to mainstream publishing and got irate when it came to sharing canons that live in a fandom world called…the Omegaverse.

YouTube: Omegaverse - Yaoi Genre Explained

Omegaverse also known as a-b-o an abbreviation for alpha beta omega, is a sub genre of speculative erotic fiction - we might get into some material that is kind of scary, bear with me, you’ll be better off with the knowledge you take away from this lecture

Bethanne Patrick: 

This world portrays human characters in a hierarchy most commonly seen in myths about wolves. Pack dynamics consist of alphas (dominants), omegas (submissives), and betas (neutrals). So, you can think of the Omegaverse as wolf-themed BDSM.

YouTube: Into The Omegaverse: How a Fanfic Trope Landed in Federal Court

So there was this lawsuit surrounding some works of fiction that incorporated the fanfic trope known as a-b-o or omegaverse and one thing led to another and before you know it the New York Times gets to explain concepts like estrous cycles claiming bites forced impregnation knotting which is um well it's like uh apparently it's a feature of wolf anatomy it's like the tiger king of wolf porn.

Bethanne Patrick: 

Some stories in the Omegaverse don't include sex scenes, instead honing in on the power differentials of Alpha and Omega relationships. 

Minkel posited that the Omegaverse fanfic community may have started because of a show on the CW called “Supernatural.” It came out in 2005 and follows two brothers who hunt down supernatural creatures. Sometimes, these creatures are werewolves. 

When viewers wanted a way to explore relationships between actors in the show, still set in the supernatural world, the Omegaverse was born.

YouTube: The Rise (and Rise) of the Omegaverse | Video Essay:

There were these kind of message boards for basically any genre of fanfiction, but the kink meme ones were pretty much all specifically interested in erotica or at least romance with heavy se4ual elements. The prompt post that started it all was Supernatural RPF or real person fiction about the two lead actors, Jensen Ackles and Jared Padalecki, rather than the characters that they played in the show. It read as follows. I'd like to see alpha male Jared and (beeps) male Jensen. Jensen is a snotty prude, think Lady from Lady and the Tramp. He may be a (beeps) male, but he's not just gonna let anybody take a go at his sweet little (beeps)…  And the rest, as they say, is history.

Bethanne Patrick: 

Initially, these fanfiction relationships were all male to male…a benefit of the fanfiction world being that it allowed people to explore what wasn’t highly commercially available. In the 2000s, queer fantasy novels didn’t have a home in traditional publishing. 

But along the way, some readers voiced a desire for heterosexual lore in the genre.

Enter author Addison Cain, who In 2016, she published “Born to Be Bound,” an Omegaverse-inspired fantasy book that centered around a male-female relationship. 

This shift to the world of real publishing was notable, since previously, Cain had only published to fanfic sites. Now, she had backing from Blushing Books, a small, romantic ebook publisher best known for its spanking erotica. It’s no Penguin Random House, but it’s for profit. And she secured this deal based on the success of her original “Born to Be Bound” manuscript after querying publishers for months.

Two years later, in 2018, a different fanfiction writer, Zoey Ellis, published “Crave to Conquer.” It utilized Omegaverse tropes as well, and involved a willful female historian who eventually gives in to a deep, passionate relationship with an Alpha male. 

The writing itself was very different from Addison Cain’s but in both stories: Alpha males are inordinately drawn to the Omega female heroines, those female heroines try and ultimately fail to resist their urge to mate with the males.

The similarities here are a symptom of both stories drawing on Omegaverse lore.

But Addison Cain didn’t see it that way. In fact, when she found out about Zoey Ellis’ book, she decided to take legal action.

Bethanne:

What happened with the Omegaverse lawsuit?

ELIZABETH MINKEL INTERVIEW

So this author, Addison Cain, accused another author who had written a male female wolf kink Omegaverse romance, Zoey Ellis, of plagiarism and issued a takedown notice.

Bethanne Patrick: 

Coming up…the Omegaverse divided.

Chapter Two: The One Who Cried Wolf

Addison Cain took off in the fanfic community when she published an adaptation of Christopher Nolan’s Dark Knight set in the Omegaverse world back in 2012.  She’s no stranger to drawing on pre-existing lore. And fanfic writers in general tend to be accepting of the collaborative, often-referential aspect of what they write. People take elements from other stories all the time. So one would think that she would cheer on fellow fanfiction writer Zoey Ellis who had also published a book using Omegaverse tropes…even if it meant their stories had some similarities. Not so.

When Cain found out about Ellis’ book, she had her publisher send DMCA takedown notices to every e-book distributor – among them Amazon, Google Play, and iTunes, claiming Ellis had infringed on her copyright.

Cain seemed to be most upset that Ellis’ book depicted a heterosexual Omegaverse…something Cain felt she’d invented, since many of the Omegaverse fanfictions available online were about relationships between gay men. 

CAIN CLAIMS SHE INVENTED M/F NON-CON WOLFKINK EROTICA

“I was the first for male-female. I loved reading Omegaverse fanfiction but got so frustrated that it never included women. So, I made my own meta, rules of the universe, for female Omegaverse and made my own.”

Bethanne Patrick: 

It was a serious allegation. And not exactly a fair one…

Ellis had undoubtedly taken a lot of her time and effort to write her own Omegaverse novel. She’d spent months writing blogs to her loyal readers, teasing the story elements and the book cover reveal. And she’d looked forward to the pre-orders she anticipated at the presale…only to have her book unavailable for purchase.

When the distributors saw the DMCA takedowns, they responded by removing Ellis’ book from sale. It was a threat to her livelihood…and the diminishment of something she’d worked hard to produce.

The natural question that arises here is: how was this allowed? Did Cain wield authority over Ellis in this space? Not quite.

The problem is this:

When platforms like Amazon or iTunes are told that a book infringes on a copyright, then they have to take it down till a lawsuit is settled. This leaves people like Ellis in a place where they need to spend a lot of money on legal fees or just let their dream die. Because of Cain’s claim, Born to be Bound was removed from digital platforms, literally vanishing off devices of people who had purchased it! But Ellis decided to fight.

In October 2018, Ellis published a letter to her readers on her blog, addressing the legal allegations. She expressed concern as a new author and concern for Omegaverse writers in general. Apparently, she wasn’t the first person whose work had been thwarted by Addison Cain’s DMCA takedown notices.

Cain didn’t like that.

Soon enough, Addison Cain made a Facebook post letting her readership know what was going on as far as she saw it…  describing Ellis’ actions as “serious.”  

LINDSAY ELLIS “INTO THE OMEGAVERSE” YOUTUBE

This is outside of my control. Please consider that this is very serious. A publishing house does not make a move like this without solid evidence and the full knowledge that any legal battle is already won. I am sick to my stomach thinking about it.

Bethanne Patrick: 

Apparently, Cain’s readers responded by harassing Ellis, sending her death threats.

Ellis responded by directly asking Cain to at least not encourage the threats.

In September 2018, Ellis’ publisher Quill Ink filed a lawsuit against Cain and her publisher, to address the copyright infringement claim.

Here’s what the case came down to:

Cain believed that Ellis had stolen key aspects of her characters, like the fact that the Alpha male protagonist was large and took advantage of the Omega against her will. She also honed in on the fact that the Omega in Ellis’ book tried to hide her scent to protect herself…and the fact that Omegas are going extinct. 

But as Ellis went on to refute, these story elements are endemic to Omegaverse lore. And you can’t copyright a trope.

It would be like Shakespeare suing Jane Austen for recycling the whole enemies-to-lovers plot device. And in the same way no one can own that plot device, no one can own the rich girl bully, the awful stepmom, the forced proximity romance, or the rags to riches redemption story. 

Tropes like these become tropes because they’re universally recognized by humans across time and cultures. Ten years before Addison Cain even published her story, fanfiction writers were using the same plot devices she put in her book. 

The erotic werewolf genre that is Omegaverse was never hers to claim.

But for a full year Ellis lived in a purgatory not knowing what would happen to her book. 

Then, on September 9th, 2019, Zoey Ellis and Addison Cain settled. As part of that settlement, Quill Ink and Blushing Books, the authors’ respective publishers, agreed that there was no copyright infringement and that the claims were invalid. Essentially, Addison Cain’s copyright infringement claims didn’t hold water.

So, Ellis’ Omegaverse book had been reinstated on Kobo and Google Play. Later on, Kindle would reinstate the book too. However, we don’t know how all of this impacted Zoey Ellis’ sales. 

Overall, the Cain vs. Ellis case showed the community how corrupted things can get when fan fiction becomes more than just a hobby. 

ELIZABETH MINKEL INTERVIEW

I think within fandom, it just looked absurd because it was, it was, it, I think it kind of underscored for a lot of people in fandom who look at the pro writing world with a little bit of, maybe not derision, but this kind of idea of like, oh my God, there's always room for another Omegaverse story, right?

This is what happens when you involve money, uh, you have people, you know, fighting other people and claiming that something is stolen with an idea that exists in the comments. And then also, you know, there was a little bit within the fan fiction world of like, wait, that's, that's like our thing also.

Bethanne:

But what about Cain? What did things look like for her after all of this?

ELIZABETH MINKEL INTERVIEW

I don't know how Addison Cain’s sales did after this, but she got so much blow back…

People were like making fun of her, you know, to say like, First of all, you did not invent Omegaverse.

ELIZABETH MINKEL INTERVIEW

That couldn't have been very good reputationally, 

Bethanne Patrick: 

After a quick break, we’ll chat through the repercussions of Cain vs. Ellis

Chapter 3: What does this mean for the mega corporations

The thing about this lawsuit, which ended up being fairly non consequential, is that it brings up some broader questions to contend with when we’re dealing with organizations with a lot more money and power than a fan fiction author. But first, let’s look back a bit. 

For as long as we’ve existed, humans have told stories. 

While we’ll never fully know what kinds of sounds or words were shared, as the first humans set out to make meaning through symbols and shared ideas, we do have a written myth dating as far back as 4,000 years ago.

This epic poem, written in ancient Mesopotamia, is titled the “Epic of Gilgamesh,” and portrays the journey of a man who, faced with his friend’s death, goes off in search of immortality. Many credit this work for providing the foundations of the Judeo-Christian Bible, which was written about 2,000 years later.

One passage from the epic describes a woman named Shamhat who convinces a man named Enkidu to eat from the Tree of Knowledge. When they both eat from the tree, they become different from the rest of the animals around them – aware of their nakedness, with no way to go back.

This story is also known to feature a seductive snake.

Sound familiar?

Earlier versions of stories that appear in ancient epics and then landed in the Judeo-Christian bible also appear in Roman and Greek mythology. And references to those myths can be found in Shakespearee’s work, which has allusions to Jove and Venus, respectively the Roman names for Zeus and Aphrodite. Some even say Ovid’s Metamorphoses had a direct influence on Shakespeare’s work. 

The bottomline: most of the stories we tell have origins in a story that’s already been told. Sharing them links us, as story-telling creatures, through the centuries. So in the past, when it came to a single writer receiving credit for them, that sort of…wasn’t a thing. 

Obviously, I don’t think an author's work should be stolen and profited on. But with more fan fic works leading to original works, the publishing industry has had to grow more flexible, more holistic in its understanding of ownership. And maybe this is more accurate to how things have always been. 

Here’s Minkel again: 

ELIZABETH MINKEL INTERVIEW

You see a lot of these clashes, you see smaller authors, trying to kind of shore up copyright or make ownership of ideas tighter. And I understand why they do that because they have such small margins. Even all of them combined in the entire history of literature have not done as much damage to copyright as Disney has.

Bethanne Patrick: 

What Minkel means is that Disney has scared off so many would-be authors from using Disney storylines or tropes, which are themselves often inspired by mythology and fables, because of their aggressive litigiousness.

DISNEY DOWNFALL ANALYSIS

The company has become even more morally bankrupt. They’ve become so desperate to squeeze even more money that they actually refused parents from putting a picture of spiderman on their 4-year-old’s grave. 

DISNEY'S CREATIVE DARK AGE

Another soulless adaptation of a classic Disney film, because we are in the age of creative and soon financial bankruptcy.

NEWS REPORT ON DISNEY SUIT

Disney is suing a local company they say is selling counterfeit Disney merchandise.

truTV: Adam Ruins Everything - How Mickey Mouse Destroyed the Public Domain

Even the breakthrough Mickey cartoon Steamboat Willie is based on a Buster Keaton movie from 1928.

Bethanne Patrick: 

While bigger organizations can have much more of an impact on fan communities should they want to – Disney buying LucasFilms and killing old Cannon anyone? – that unfortunately is a story for another episode. 

For today, I think what we can draw from the recent Omegaverse suits is that not even all storytellers who got their start in the collaborative world of fanfic will be quite so open to its collaborative aspect once they start publishing. Addison Cain might be a particularly severe example of what can happen when one takes claim over the canon of a genre…but she’s not the only author trying to profit off of her material. And when profits are involved, livelihoods at stake, that’s when the voluntary, community-based fanzine culture of online fandoms can turn into genuine publishing controversies. 

ELIZABETH MINKEL INTERVIEW

I think we're seeing more and more publishers within more mainstream spaces bringing fan fiction tropes and sensibilities into published work. I think part of that is a result of a lot of people who came up in fandom joining the publishing industry, and now they're the ones who are commissioning stuff.

Bethanne Patrick: 

This is a good thing. It means fanfic writers are growing their presence in the more traditional publishing space…but I do wonder how it might change the free-for-all culture that made it such a fertile space for story-loving creatives. It seems that’s something only time will tell.

Missing Pages is a Podglomerate Original, Produced, mixed, and mastered by Chris Boniello with additional production and editing by Jordan Aaron.

This episode was produced by Devan Schwartz

This episode was written by Lauren Delisle

Marketing by Joni Deutsch, Madison Richards, Morgan Swift, Vannessa Ullman, and Annabella Pena. 

Art by Tom Grillo. 

Produced and Hosted by me, Bethanne Patrick. Original music composed and performed by Hashem Assadullahi, additional music provided by Epidemic Sound. 

Executive Produced by Jeff Umbro and the Podglomerate.

Special thanks to Dan Christo, Matt Keeley, Grant Irving from Mutual Friends Media, and Elizabeth Minkel

Fact checking by Douglas Weissman

You can learn more about Missing Pages at the podglomerate dot com, on twitter at miss pages pod and on Instagram at missing pages pod, or you can email us at missing pages at the podglomerate dot com. If you liked what you heard today, please let your friends and family know and suggest an episode for them to listen to.