“But authors of original works are always copying off each other by having things like archetypal characters!!!1!”
Think of it this way: a painter, a stick figure artist, and a fan of the painter each paint a house.
The painter makes a marvellously detailed house in crème colour with a green lawn and blue sky. It’s their house (of course it is: most houses are white, most lawns are green, and sometimes the sky is blue, but this is specifically their house that they live in).
The stick figure artist makes a stick figure style representation of a house, which is white, and has a rough representation of a green lawn and the word “Sky” written above it in blue. This house is distinct from the painter’s house. It’s the stick figure artist’s house, which they live in.
The stick figure artist is not copying or ‘transforming’ the painter’s house because both of them acknowledge that houses are often white-toned, lawns often green and the sky sometimes is blue. They are both houses, but they are separate houses which are not copied off the other.
But then there’s the fan of the painter. The fan could paint a picture of their own house, but they don’t. Instead they decide to make a paint by numbers of the painter’s work. So instead of putting a huge amount of effort into design like the painter and stick figure artist, they trace the painting so they can make an exact duplicate, then they paint this to be an almost perfect colour match for the painter’s picture and proclaim that what they’ve created should be considered just as original as the painter’s work because “obviously” the painter was just copying the stick figure artist.
But the fan isn’t making transformative art. The fan has made a forgery.
This, essentially, is the problem with Archiveofourown.org/the organisation for transformative works’ claim that all fanfic is transformative. But most fanfic is no more transformative than the above forger’s slightly off colour recreation of the painter’s art. There is a MASSIVE difference between using accepted literary tropes in original works and writing fanfiction. Comparing the two only proves how little the person doing so actually understands the art of writing and the effort that goes into it.
The idea of a being who can enter people’s dreams is a Trope.
Freddy Kruger is a character from a copyrighted work, who is a being who can enter people’s dreams.
…So is Princess Luna of My Little Pony.
Saying that “all fanfic is transformative and therefore fair use because original authors use tropes” (the basis of A03’s arguments) is saying that Princess Luna is a fan’s representation of Freddy Kruger because OMG they can both dream-walk.
Likewise, Glen Cook’s Garrett (of the Garrett P.I. series) is definitely inspired by Chandler’s Philip Marlowe but – and here’s the critical thing – neither TunFaire nor Garrett ARE Chandler’s setting and character. If you compared Garrett and Marlowe, or TunFaire and LA, the differences would be too enormous to consider them the same place or person. They’re too transformative.
Plucking Marlowe – specifically Marlowe, not merely a hardboiled detective, but specifically Chandler’s Marlowe – down in a fantasy setting is not transformative.
But that’s all beside the point because, dear AO3, that’s not what transformative legally means.
You see, to be transformative it must – and I get this from the US government’s copyright department’s legal information pages “add something new, with a further purpose or different character, and do not substitute for the original use of the work” (emphasis mine). Oh, and that’s “character” as in the nature of the work, not the people in the story.
Do not substitute for the original use of the work.
The original use of a work of fiction – film or book or tv show or webcomic – is to entertain.
The original use of fanfiction is to entertain.
Do you see the problem here? Fanfiction does not fall under fair use law. Fanfiction is not transformative. By the time fanfiction is different enough from the original work to count as legally transformative, it is so different from the original that it might as well be completely original.
And here’s another important thing: alternate character interpretation – no matter how many big issues like sexual orientation you drag into it – is not transformative. Why? Because you’re only changing one little thing. After all, if you’ve alter the character completely because of their orientation they aren’t the canon character anymore, they’re a Mary-Sue with the character’s name and vague appearance.
Parody is transformative because it holds the original up to ridicule. Parody – true parody – takes the ENTIRE work and holds a mirror up to it. Messing with one character’s ethnicity or orientation is not transformative. It is changing things, but it is not transformative.
Oh, and the argument that fanfic “should” be considered fair use because of how many minority groups it helps bring to light when straight, white characters are made into anything but that? That’s not a proper argument. Self-publishing (whether freely online or for profit) is fairly easy to master. If it matters that much to you that there aren’t enough non-straight, non-white characters out there, write some original ones of your own and start changing the norms of what main characters in original works can be. That would ACTUALLY make a difference. And you know what? Everyone should be able to eat, but that doesn’t mean we should be protesting laws that make it criminal for someone to break into our homes and offices and steal all our food, or make themselves at home in our pantries. There is no reason that respecting an author’s right to control the art they laboured to make and, oh yeah, is their living would make the benefits of fan communities and fanfiction impossible everywhere.
Here’s the thing, fans, an author only has one or two canons to live off. A fan who can’t express themselves in one fandom because there’s a fanwork ban? They can just move to a different fandom and there are THOUSANDS of them to choose from.
So, no, AO3/OTW, you haven’t done good. You’ve done fucked up. Why? Because you’re teaching fans to be entitled brats with no true understanding of what “Transformative” legally means and are campaigning to take the control of all authors’ livelihoods out of their hands. And for what? For the sake of fans who put “ORIGINAL CHARACTER DO NOT STEEL” in their summaries when they have major OCs, who think it’s not “Fair” that they can’t profit off someone else’s copyrighted work, and whose oh so ‘original’ fanfiction is all too often more akin to plagiarism than copyright infringement given how many scenes get lifted out with almost no textual changes.
And you know what, AO3? If it weren’t for ‘fans’ like you trying to take control of the original creators’ intellectual property away from them, a LOT more original creators would be open to allowing fanfiction. You have a privilege. Stop acting like spoiled brats with entitlement complexes and calling it a ‘right’.
If only fans and fan organisations, like AO3, could go into fandom with an attitude of “Gee, I’m glad this canon’s author is cool with us doing this” when fanfic is permitted and of “oh well, there’s always other fandoms” when it is not, fandom and fanfiction would be a lot better off. But no, instead they insist on acting like two year olds who’ve got the Gimmies.