This morning Amazon announced a new platform enabling writers to sell fanfics.  For a while now selling fanfics using the original characters and world of another writer has been heavily frowned upon as it’s technically a copyright violation.  For E.L. James to sell Fifty Shades she had to change the names of Edward and Bella (I have a copy of the original, titled Master of the Universe, and all the names are from Twilight) and make a few other changes, even though the books are still very easily identified as being Twilight “with the serial number filed off,” as writers say.

Amazon has solved the copyright issue while creating another one.  The company has contracted with some entities, such as the one owning Vampire Diaries, so that the writers can leave in the same names.  Amazon will sell the stories and the writers will get royalties and the entities will get kickbacks. This is what makes it legal, though it’s still dubious, and still fanfic with filed-off serials.

Now the new problem, outside the moral realm of making money off someone else’s creations, is that Amazon’s contract to do this says Amazon can confiscate the works, including original characters, without payment.  Contract law requires consideration to have monetary value except in very limited situations (if I hit you with my car, we can contract for me to pay your medical bills and living expenses while you’re recovering, even though my consideration is nothing more than fulfilling my debt to you).  This consideration must have value, and both sides must receive it.  Bargain, consideration for both sides, consideration has value, are three elements to make a contract enforceable.  Even if you sign, you may have a legal “out.”  Large companies often rely on the little guy not knowing this.

But neither are they quite creating an estoppel.  If the fanfic writer pulling out of the contract due to their lack of consideration would cause Amazon to lose money they already made (versus future gains), an estoppel could be created to stop Amazon from losing money out of their pockets.  It would be an interesting time in court having one side argue for an estoppel while the other argues that the contract wasn’t enforceable in the first place while the first side argues that the terms were ratified by the other party not taking action at the very beginning while the other side…starts passing out Tylenol because it’s a big mess and this is why court cases can drag out for years and some judges appear to have constant migraines.  The law is complicated and sorting it out would be easier by flipping a coin.

So Amazon’s wanting writers to enter into a contract that may or may not have consideration, and the writer won’t know ahead of time.  Removing the clause allowing for confiscation of the stories without consideration could eliminate a lot of trouble, even if it wouldn’t tackle the moral issues.

One argument right now is that this is no different than a tie-in since Amazon’s getting approval of the entity owners.  Well, it is different.  A tie-in in supplemental material written by the original writer (such as The Short Second Life of Bree Tanner by Stephenie Meyer, the original writer of Twilight) or someone contracted with the final products approved (such a the many making-off books for the Lord of the Rings movies or the many, many, many Star Wars books written by third parties that are approved by Lucas or other authorized people) and becomes part of the canon.  This scheme will allow writers to upload stories and books without making the work canon.  Also those approved to write tie-ins are guaranteed payment for their work.

On the flip side, the fanfic writers don’t own characters that aren’t their original ones, so how can they retain rights to their stories?  How can a story be retained by Amazon without the loss of original characters?  How can fanfic writers retain rights if they don’t own all the characters?

An interesting quandary is who is more right or more wrong, and is this a situation Amazon or fanfic writers should even get into?  Writers don’t own someone else’s characters.  Amazon’s offering a contract that may be unenforceable.  What would happen if a bunch of writers filed a class action and took Amazon to court to try reclaiming stories that have characters they don’t own on the basis that Amazon gave them nothing, nullifying the contract?  One side wants rights to someone else’s property and the other wants to enforce an unenforceable contract.  Hmm.

I also have a concern that this is furthering the push toward buying the same stories over and over again, which harms writers of original fics.  If you’ve noticed that so much of what’s available is the same, this is why.  Agents and publishers tend to want more of what has sold in the past to lessen the risk of a flop if something different doesn’t find an audience (same reason Hollywood keeps remaking films and adds to preexisting franchises like Fast and the Furious 7).  If you want original works, in books or films, consider spending your money on what’s different, which may very well be self-pubs and indie movies.  Independent writers and film-makers can’t copy the same stuff that’s already out there.  If you want fanfics, there are plenty of websites to read it for free.  I admit enjoying some fanfics, and highly recommend FanFiction.net or, if you like the adult type, AdultFanFiction.net.

The very heart of fanfiction is fans writing new stories using characters they love in ways that aren’t canonical.  Harry Potter and Hermione Granger never were in love, yet some fans will write stories where they do fall in love, and the chance of Hermione and Draco Malfoy ever having a love affair, yet some fan will write those two having a heavy fling (I wrote a popular fic years ago about these two).  That is what makes fanfic so fun.  These are by fans, for fans, and attempting to make money off someone else’s work in such a manner has been looked down upon since the beginning of fanfics back in the 70’s.  (Your fanfic history lesson of the day: We got the phrase “slash” as a reference to same-sex non-canon pairings from the original 70’s fanfics featuring Spock and Picard as lovers, often written as Spock/Picard or Picard/Spock, and when spoken, it was – you guessed it – slash.)

So I suggest both financially supporting original artists if you are a reader an enjoying the fanfiction written in the spirit of its creation, and if you are a writer, consulting with an attorney prior to relinquishing your fanfic work to Amazon to make sure you are comfortable with potential headaches.

Insert standard IANAL disclaimer. I Am Not A Lawyer.  Legal discussion here isn’t to be taken as legal advice.  My legal background is that I have studied contract law and passed state testing with flying colors (though this doesn’t make me a lawyer).  As the owner of a small business dealing regularly with contracts and with the potential to enter into contracts with my writing, I continue to keep abreast of any changes.  So while I am not a lawyer, I also am not someone who googled a few websites after reading something that pinged a red flag this morning.  However none of this is legal advice.

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