‘Fifty Shades of Grey,” the smutty bestseller by E.L. James, has generated a lot of talk about women, sexuality, and feminism. But the book’s success also raises very different — and important — cultural issues: When does fiction inspired by other works become intellectual theft? Can derivative works be considered legitimate art or literature? And what should the law have to say about this?
As has been widely reported, “Fifty Shades of Grey” was born as a work of fan fiction based on the “Twilight” series, with vampire Edward Cullen changed into an emotionally damaged but human tycoon and teenager Bella Swan into a virginal college student. Then, James removed the story from the Internet, changed the names and made minor alterations, and sought a commercial publisher.
This “tainted” origin has invited jeers as well as charges of ethical delinquency. Some of the harshest criticism has come from fan communities, where “thou shalt not profit from fan fiction” is a sacrosanct principle — one that preserves the nature of fan works as a labor of love and averts copyright infringement claims. Yet other critics regard all fan fiction, for-profit or not, as an intellectual and moral affront: Fan writers, they argue, are “stealing” characters and storylines that do not belong to them.
The “Fifty Shades of Grey” phenomenon is only the latest example of fan fiction’s mainstreaming. Publishers have bought sequels to Jane Austen’s “Pride and Prejudice,” which first appeared and gained a following as online “fanfics”; in this case, copyright is not a problem since the original is in the public domain. Authors such as fantasy novelist Naomi Novik openly acknowledge their background as fanfic writers. (Full disclosure: I write and read fan fiction as a hobby.)
To some, this signifies cultural downfall. Yet literature and art have always thrived on creative adaptation. The question thrown at fan fiction writers — “Why don’t you create your own characters?” — would have baffled ancient Greek dramatists whose plays were populated with mythological characters. Shakespeare drew on historical chronicles and other people’s stories, such as the Italian novella “A Moorish Captain,” which served as the basis for “Othello.” (Under modern copyright law, the author’s heirs could have sued.) In modern times, John Updike gave us “Gertrude and Claudius,” a “Hamlet” prequel, while Jane Smiley and Geraldine Brooks have won Pulitzers for novels based on “King Lear” (“A Thousand Acres”) and “Little Women” (“March”). If lack of originality is the crime, all these works are guilty.
Yes, the vast majority of fan fiction falls woefully below such lofty standards. But so does most original writing, particularly the self-published kind — and some fan-written stories would hold their own against much professional fiction. (Granted, “Fifty Shades of Grey” is appallingly bad, but then “Twilight” is no “Jane Eyre,” either.)
Legally, of course, the difference between “Hamlet” fanfic and “Harry Potter” fanfic is copyright. Yet many scholars argue that intellectual property laws have sprawled far beyond their original intent. The first copyright law in the United States gave authors the exclusive right to profit from their works for 14 years after publication, with the option of another 14-year extension (and did not cover most derivative work). Today, copyright lasts for the author’s lifetime plus 70 years, and for 95 years from publication for works of corporate authorship.
What’s more, the standards for what constitutes copyright infringement are often vague and subjective. Whether a work is judged a legitimate parody or critique of the original, or an unlawful borrowing, can depend largely on the judge’s whims.
Copyright laws were meant to encourage creativity by boosting incentives for authors and artists. Today, they often have the opposite effect, blocking new works that can cause no conceivable harm to the original author’s financial interests — such as “Sixty Years Later,” in which the aged protagonist of “Catcher in the Rye” has further adventures and rebels against his creator, or English translations of the Tanya Grotter novels, a Russian fantasy series that both reimagines and parodies “Harry Potter” in a Russian setting.
“Fifty Shades of Gray” may not present the best case for derivative work. Yet the attitude of “Twilight” author Stephenie Meyer, whose response to James’s success has been “good on her,” is refreshing (particularly since the novel’s kinky non-marital sex flouts Meyer’s own conservative values). As long as the author’s ability to profit from his or her work is not affected, why not let a hundred fanfics bloom? The next one that that morphs into a “real” book could be great literature.
Cathy Young is a columnist for Newsday and RealClearPolitics.com.