Fan Fiction of the Eighteenth Century and IP

Elizabeth F. Judge, University of Ottawa Faculty of Law (Common Law Section) has published "Kidnapped and Counterfeit Characters: Eighteenth-Century Fan Fiction, Copyright Law and the Custody of Fictional Characters," at Originality and Intellectual Property in the French and English Enlightenment 22-68 (Reginald McGinnis ed.; Routledge, 2009). Here is the abstract.

Analyses of the intellectual history of eighteenth-century copyright typically focus on unauthorized printed editions (that is, the entire copying of another author’s works verbatim) and the associated copyright case law in the literary property debates, such as Millar v. Taylor and Donaldson v. Becket, which tested the status of authors’ common-law rights. This chapter turns to eighteenth-century fan fiction, to import today's term for referring to newly written fiction by fans featuring fictional characters created and made famous by another author, and especially online publication of fan fiction, in order to examine the early relationship of readers and authors to fictional characters, rather than to printed works, and the ongoing custodial interests that both readers and authors felt toward fictional characters in this period. While seemingly an anachronistic pairing to speak of “fan fiction,” which has been so strongly associated with the internet, and the eighteenth century, the characteristics that define internet fan fiction appositely describe the eighteenth-century phenomenon, excepting the medium of dissemination. As with fan fiction today, which has been at the locus of cultural and legal debates around the meanings of authorship, originality, interests, and rights, fan fiction in the eighteenth century was a focal point for unresolved and evolving views on those same issues, especially the nature of authorship, and originality, the integrity of fiction, and the reader’s role. This chapter examines the cultural discourse around fan fiction in the eighteenth century in order to shed light on eighteenth-century interpretations of originality and imitation, and the extent to which copyright law shaped (and was shaped by) cultural perceptions about the ownership and care of fictional characters and how competing interests in fictional characters contributed to the debate on copyright law. It re-considers the role that author’s rights, in the sense of moral rights and the droit d’auteur tradition played in English copyright history. Well-documented examples of extensive reader response to fictional characters that became cultural phenomena, including Samuel Richardson’s Pamela and Clarissa and Daniel Defoe’s Robinson Crusoe, spawning numerous unauthorized sequels in novels, plays, and short stories, lively correspondences between fans and the author, satires by rival established authors, and character merchandising, illustrate how appealing fictional characters who reach iconic status within a culture are subject to competing claims of ownership as well as competing affections. The chapter focuses especially on when and why popular, creative, and often even affectionate inclusions of these eighteenth-century fictional characters into works by other people were, more often than not, treated by the original authors as akin to legal wrongs against a person - ravishing, counterfeiting, and kidnapping - and treated analogously to the word-for-word copying of entire works that was condemned as “pirating,” despite the lack of legal foundation in eighteenth-century English copyright law to underlie these assertions.

Download the essay from SSRN at the link.