Fan-Fiction: Copyright Versus Plagiarism

I own a site called Dragon’s Mark, which is run with the help of four friends. It’s a site, well a group of sites set up for free form role-playing. Basically, a form of creative writing, usually done on a collaborative scale. The forums are generally used to posting of story items written by our site members. These can range from short “play by post” set-ups where two or more players write out a scene together, to much more elaborate stories that make up scenes from the life of the various characters.

Recently we had an issue crop up where it was found that a number of story type postings were plagiarized. The original poster has said it was not intentional, that the stories were purchased from a ghost-writer. That’s really neither here nor there. The fact is, the items were plagiarized, taken from various fan-fiction sources. the OP took most of them down, well, took down pretty much everything they had ever posted. We (the admins of the site) took down some others. The whole thing has left a bit of an open sore sort of feeling with a number of folks.

I do not, by any means, claim to be an expert on this issue, but I have learned a number of things about plagiarism and fan-fiction over the last couple of weeks.

First off, Plagiarism is not illegal. It is not a legal term, there are no laws against it, it has no bearing on anything should you wish to address it in a court of law.

I’ll “cite” a couple of paragraphs from Wikipedia:

Plagiarism is the unauthorized use or close imitation of the language and thoughts of another author and the representation of them as one’s own original work.
…
Plagiarism is not copyright infringement. While both terms may apply to a particular act, they are different transgressions. Copyright infringement is a violation of the rights of a copyright holder, when material protected by copyright is used without consent. On the other hand, plagiarism is concerned with the unearned increment to the plagiarizing author’s reputation that is achieved through false claims of authorship.

Essentially, plagiarism is a tool used primarily by academia to prevent students from turning in work that they did not do. While it is not illegal, if you plagiarize your term paper you will likely find yourself failing the assignment, possibly the class, and depending on the school it can even get you kicked out.

Now, depending on what you plagiarize, you may also find yourself running afoul of copyright law. Violations of copyright laws are generally civil in nature, but can be criminal as well. Like I said, I am not expert, and getting into those nuances is far beyond my ability right now.

But I can tell you the two are not mutually inclusive. You can plagiarize Shakespeare, but since his works no longer fall under copyright protection you would not be violating any laws in that regard. And you can breach copyright law, say by distributing a scanned copy of the latest Vince Flynn book, but if you don’t claim it as your own work you are not plagiarizing anything.

Now we come to Fan-Fiction. Another quote from Wikipedia:

Fan fiction (alternately referred to as fanfiction, fanfic, FF or fic) is a broadly defined term for fiction about characters or settings written by admirers of the original work, rather than by the original creators. The term usually applies to works that are not commissioned and unauthorized by the owner/creators and publishers of the original and usually (but not always) works which are not professionally published. Fan fiction is defined outside of original fiction, which exists within its own discrete, professionally published universe, and therefore, as long as it’s related to the subject, can be completely outside of canon works within that universe. Most fan fiction writers assume that their readers have knowledge of the canon universe (created by a professional writer) in which their works are based.

Unless your writings are based on say, Romeo & Juliet, or The Wizard of Oz, or other works that are now in the public domain, there is little doubt that fan-fiction is a violation of copyright law. But like many laws, it is up to the “victim” to pursue charges. You could steal my wallet, and even be caught by the cops, but unless I press charges you will not be arrested.

The reaction to fan-fiction by the copyright holders (authors, movie producers, etc) varies greatly. Most generally ignore it. Some actively pursue the enforcement of their copyright. Others open encourage it. Regardless of this, or any claims of “fair use”, everything about copyright law points to the fact that fan-fiction is a deriative work and thus a violation of copyright protections.

So if fan-fiction is already, by definition, illegal… how can it be plagiarized? Well, first of all you don’t need to violate copyright law to plagiarize, so that should be obvious. Taking credit for work you did not create is plagiarism, and is wrong, no matter what the source material is. But it is not illegal, so you couldn’t pursue any sort of legal recourse against someone that plagiarized your fan-fiction writing. You could try to pursue things on a civil matter, but since you violated copyright laws to begin with, I just don’t think you will get too far.

Would it be upsetting to find out something you wrote, even if it’s fan-fiction, was plagiarized? Sure. Copyright violation or not, a lot of creative effort goes in to such work. I’ve read some wonderful fan-fiction that I am sure took hours and hours of work on the authors part, but I will have to be brutely honest and say you would not get much sympathy from me if you try to take some sort indignent position, shouting down the plagiarist from some moral high-ground.

To me, that would like trying to press charges against someone for stealing a party-mix CD you made of illegally downloaded MP3s. Sure, you paid for the CD, you put the effort in to arranging, mixing, and burning the whole thing - but in the end, you have no claim to the material on that piece of plastic.