One of the weirder bits of news sailing through the Internet this week is Amazon’s acquisition, from the Vonnegut Trust, of the right to publish fan-fiction based on the, uh, Kurt Vonnegut universe. The Kindle Worlds program, which struck the deal, has in the past limited its acquisition of rights to series like The Vampire Diaries. Vonnegut is a bit of a square peg in that company. Never mind that it seems to vastly overestimate the American public’s engagement with literary fiction. Are any Vonnegut characters household names? Am I missing something?
Setting aside the question of whether or not anyone will actually make use of these rights, though, the very fact that this kind of licensing is becoming standard practice should raise eyebrows. The Vampire Diaries, Gossip Girl: those are clearly commercial literary properties. They were designed for merchandising and licensing and spinoffs. Vonnegut: eh, not so much. And the thing is, literary novelists have a long tradition of being, ahem, “inspired” by each other’s work.
Take, for example, one of the great novels of the 20th century, Wide Sargasso Sea. Though Jean Rhys did not announce it as such, the 1966 book is a sort of prequel to Jane Eyre. It’s about Mr. Rochester’s wife and her former life in the Caribbean, and what led her to be locked up in that attic. Feminists and post-colonialists believe the book to be a classic because the book, by exploring Bertha’s story in further depth, illuminates some of the assumptions embedded in Charlotte Brontë’s romance: namely, that women are crazy, and that West Indian women are even crazier by virtue of geographical location.
Rhys was lucky; any copyright Brontë had would have long since expired when she wrote Wide Sargasso Sea. Even if it hadn’t, she probably would have been OK with the doctrine of fair use in copyright law, because writing a novel that critiques another novel is likely to be viewed as a “transformative use,” sufficient to keep anyone from having to pay a licensing fee. But that doesn’t apply to everyone. Just a few years ago, a writer named Frederick Colting produced a sequel to Catcher in the Rye that J.D. Salinger successfully challenged as unauthorized. A federal court in New York ruled that any attempt to characterize the new book as commentary on the classic was, “post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.” Which is to say that she didn’t buy that just writing something that incorporated a character from the original book could constitute “commentary” or “parody” and therefore fair use.
The decision in the Salinger case was just one decision, of course, and for certain arcane legal reasons it is not clear what weight it would hold in a future case. And you can chalk it up to the fact that possibly Colting’s book wasn’t any good. (I haven’t read it, of course.) But it certainly gave weight to a worrying sort of argument. Do we want “serious writing” to be a place where people must license characters from each other? Does that do a disservice to the way in which literature is, for a lot of writers, an ongoing conversation with their predecessors? How would postmodernist novelists, for example, be curtailed by such rules, since they often incorporate commentary on the characters of others? Forcing everyone to get a license would send chills down the spine of any novelist thinking of writing, say, a feminist novel from the perspective of, say, Holden’s girlfriend Sally Hayes, not just anyone who wants to engineer a meeting between Holden Caulfield and Serena van der Woodsen.
Fan-fiction may have middling societal value. I admit that it isn’t exactly my jam. But everything I’ve ever seen suggests that among the flat-out porn and the straight-up plagiarism, there’s a lot of people just trying to puff three dimensions into characters that only formerly had two. I’ve always thought that even the emergence of “slash” was just a function of everyone wanting more gay characters in the canon. The fights about identity politics in the fan-fiction community make those in good, old real world politics child’s play — which mostly tells you how crucially important those debates are to a great many people. There is, I am saying, in the better bits of fan-fiction a desire for a truly “transformative” use. And it’s one we might do well to respect — even if we are in charge of some of the most prestigious literary estates in the country.