Poaching the Poachers
by Lucy Gillam

As is perhaps fitting in an essay about poaching from other fans, I'm going to admit up front that many of these ideas have been put forth by other people. In particular, the section on viding owes a great deal to tzikeh, the Brat Queen and numerous others who have chimed in over many vid theft kerfuffles.

Textual poaching. It's what we do. In many ways, it's what separates what we often refer to as "fandom" from the vast majority of people who watch shows, read books and comics, and go to see movies, even the ones who follow such things as faithfully as we do. Among the things that defines fandom is the taking of source text, whether characters and settings, art, or clips from shows and movies, and doing something new with it. And while we occasionally debate specific ethical questions, we generally accept that it is ethically acceptable for us to "poach" this source text for our own creative endeavors.

And then someone does it to us.

Someone writes an unauthorized sequel to a story. Someone uses clips from a fan vid in creating another fan vid. Someone uses a photo manip to make a Live Journal icon.

And all hell breaks loose.

Why are these situations different? Why is it acceptable for us to do it to them, but not to each other? Certainly every case of plagiarism, ever vid theft kerfuffle, brings someone out of the woodwork who accuses us of being hypocrites. Are we? Are we applying a double standard to the works of other fans, and if so, is that double standard ever justified?

In a post reporting on an Escapade panel about poaching from fellow fans, I expressed some frustration that the various ways fans could poach from one another wasn't sorted out better, because in some instances, I think there are very good reasons why it is different, whereas in others, the only reason put forth is "it's us, not them," which I find less than persuasive.

And as with many things, poaching from other fans seems to rest on a continuum. No matter what your opinion of fan fiction, I don't know too many people who would think that taking a story wholesale and putting your name on it was ethically acceptable, even if they thought the original author was behaving unethically in writing it. Likewise taking a vid or photo manip. There may be the occasional person who says we've no right to complain, but I doubt even they would say that taking a story or vid was right.

But very few acts of intrafandom poaching are quite that clear cut. What about those unauthorized sequels? What about capturing a clip from a fan vid?

So, consider this the sorting out. These are the various questions and answers I've seen about fans poaching from other fans.

Fanfiction, or "Let's Put on a Play!"
Plagiarism is one of those things like obscenity: we're all pretty sure we know it when we see it, but when you get down to specifics, it isn't always that easy. I teach writing, specifically research-based writing, and it's generally easy enough to explain to students that copying the actual wording from an article or web page without giving credit is a bad thing. It's less easy to explain on the level of ideas and information. If they put it in their own words, do they have to tell me where they got that definition of dramatic irony from? What if the idea they got for their paper came from me? Do they have to cite me when, after all, it's my job to help them develop ideas?

In some ways, fiction is the easiest of fannish arenas to explain our outrage at being poached by fellow fans. Even people who would argue that all fan fiction is plagiarism don't deny that taking a fan story and copying it outright is also plagiarism. Likewise taking large chunks of text.

(Note: If you're reading this site and you think all fan fiction is plagiarism: dude, I can't help you there).

In other ways, though, the outrage is harder to explain. What about ideas? AUs? Original characters? Here is where it becomes much, much harder to explain why fans poaching from other fans is unacceptable.

Examples of these conundrums range from the truly ambiguous to the absolutely ridiculous. We'll get the ridiculous out of the way first. Not too long ago, on FCA-L, someone brought up a fan writer who wrote a Harry Potter story that involved the Hogwarts students putting on a play. She subsequently accused any writer who used that plotline of plagiarism and demanded that their stories be removed from the archive where she had hers. Because, you know, in the entire history of books, movies, and television, no one has ever done a story about students putting on a play (note to the writer should she be reading: Mickey Rooney and Judy Garland would like a word with you).

To use a more immediate (well, to me, anyway) example: a while back, I posted a story snippet that had Nightwing and Superman discussing the idea of sex and flight. Not too long after, another writer posted a snippet that had Nightwing and Superman discussing the idea of sex and flight. Now, admittedly, she mentioned that she was pretty sure she'd seen the story elsewhere, but even if she hadn't…well, it's not like that idea is exactly a stretch, now is it? Superman. Flight. Sex. We're not talking stunning originality, here. It would have been pretty silly of me to take offense.

On the other hand, you have fandoms like Mag7 or Phantom Menace that have spawned a number of detailed Alternate Universes. If you as a fan writer want to play in those universes, possibly even using original characters, what is the ethically acceptable thing to do? Is merely crediting the author enough? I'm fairly certain most fans would agree that crediting at least is necessary, particularly since one of the arguments raised in vid theft debates is passing the work of another fan off as your own. But is more than "X,Y, and Z were created by Jane Fan" required? Permission, for example? And if the creator of the universe you wish to play in, or the writer of the story you wish to write a sequel to says no? Is it ever acceptable to do so anyway?

Here is where fans are often split between those who would say that asking and receiving permission is absolutely required, and those who say it is not. And here is where things get a great deal stickier, stickier perhaps than in vidding and artwork debates. Because here, in the end, we are doing to one another what we do to the creators of the sources we write about. And explaining why one is okay and one is not gets difficult.

I've seen it argued that if we were able to ask for permission to write fan fiction, or for creators to grant it without creating legal tangles, we would. I find myself a tad skeptical on that account, since we seem pretty willing to disregard the stated wishes of the creators who've said they don't like fan fiction, or don't like a particular type. I've also seen it argued that while professional creators get paid, fan writers do not, and that therefore poaching from them is churlish. This one makes a little more sense, but it sets up a binary that I suspect is a bit false, particularly as some of the lines begin to blur, as pro creators write fanfic and fanfic writers turn pro. However, the most common response I've seen to why it's acceptable to poach from a professional creator but not a fan writer comes down to "us versus them." The fan is one of us; the creator is not.

And on this, I can only say that your mileage may vary. I personally don't find it particularly persuasive, but I know plenty of people who believe it passionately. And more to the point, I'm not sure either side can be argued, as it comes down largely to a feeling. Also, like many other things, I suspect we get bogged down in the difference between courtesy and necessity, between "it would be nice if you…" and "you must…" I think many of us might accept that since the writer in question is someone in roughly the same circles as we are, that it's polite to ask, even if we don't agree that it's necessary.

I think that most of us in fandom live by this double standard whether we agree with it or not, because we recognize it as a community norm. That said, I think we need to realize that to outsiders or newcomers, it's not necessarily the most illogical leap to assume that because it's okay to write a story set after the ending of Order of the Phoenix without permission, it's okay to write a story set after "Stealing Harry" without permission.

Vidding, or Stealing the Snoopy Dance
As mentioned above, despite the gray areas where ideas and characters are concerned, fan fiction does have it relatively easy when it comes to outright copying of text: pretty much everyone recognizes that this falls under the definition of plagiarism.

Vidders don't have it quite that easy.

Let's begin with a hypothetical: Anne Q. Vidder creates a Buffy vid. She does this using her own source material. She painstakingly edits that material, adding various effects, to get the desired result. She then posts her vid to the internet for others to see. A few months later, she sees another Buffy vid posted by a another vidder. Within that vid are fifteen seconds that she recognizes as being identical to her vid. The edits and effects absolutely identical, leading to the inescapable conclusion that the segment was taken directly from her vid.

Various things might happen after that, but if the situation becomes public, the odds are very, very high that someone, somewhere will argue that the original vidder stole the source material in the first place, and as such is being a hypocrite by objecting to her vid being used.

And I will somewhat shamefacedly admit that for a long time, I accepted that using clips other fan vids was a bad thing (I'm only slowly learning the world of vids, so I took a lot on faith for a long time), I didn't really have a satisfactory answer for this question until fairly recently, when tzikeh and the Brat Queen provided it.

The answer in this case isn't really about "us versus them." It's about giving credit where credit is due.

If I were, say, to write a story set in Lanning Cook's Identical universe, it would be relatively easy for me to identify what elements of the story where hers and what were mine. A simple "This is set in Lanning Cook's Identical Universe; these aspects of the set-up and these characters are her creations," and perhaps a link to her stories, would suffice. And just as importantly, the vast majority of readers would understand what she had done and what I had done. In other words, it would be relatively easy for me to give credit where credit is due.

Taking clips from an fan vid and using them in other fan vid is, in essence, taking credit for someone else's work, and it is simply not possible to give proper credit on the same level that it would be in fan fiction. Trying to explain to the average viewer that the segment from this time to this time was taken from another vid, let alone what the original vidder might have done in the creation of that segment, requires a vocabulary that the casual vid viewer simply doesn't have.

What's that you say? That the original vidder didn't necessarily identify what edits and effects were in the source versus what she did? Well, true. However, as both Tzikeh and The Brat Queen point out, the vast majority of what the vidder didn't do is blindingly obvious. We know they didn't write, stage, choreograph, or film the scene. And for the editing and effects that could be either in the source or created by the vidder, well, I would argue that more often than not, vidders tend to get less credit for what they do than more. That is, I would guess that most casual viewers tend not to realize how much the vidder might have done to the source. And I say that as the most casual of casual viewers.

And it's for that reason that I tend to support a fairly absolutist position here: that taking clips from fan vids at all, even if they appear to be unaltered, is simply a bad idea. Very often the changes made to the source are nearly invisible unless you know to look for them. Even if the intent is simply to get a particular unaltered clip, it's almost certainly best to go about it another way.

Fan Created Images, or Would You Mind Not Using My Identity?
I'm using "fan created images" here loosely to refer to any (comparatively) static image, whether it's a drawing/painting, a photo/image manip, or a live journal icon. These aren't, of course, interchangeable, and since LJ icons represent the most distinct case, I'll (mostly) deal with those separately later.

Fan art and photo manips can be poached for a variety of reasons, but most often, they're either put up on someone's web page or, more recently, made into LJ icons.

We'll get the easy part out of the way first: a major part of what people object to is that credit is not given for these images. And while it's true that fan artists don't always, or often, credit the original photographers whose work they use to make manips, we're back to "no one thinks I did that." The occasional psychofan aside, fans generally don't claim that the photographs are their work, and the default assumption is that they're not. (In fact, I would guess that if a fan tried to claim credit for the photo, she'd meet with more than a little skepticism.)

And in the case of using fan art to create a Live Journal icon, giving appropriate credit beyond the first post they're used in is a little difficult. You can put something in the icon keywords, but honestly, how many of us ever check those? So I can certainly see fan artists having a beef if someone makes their art into icons without permission.

However, let's say some form of credit is given. Let's say that, without asking permission, Fan Y takes a photomanip done by Fan Q and puts it on her website with a caption that says "photomanip by Fan Q."

This is wrong because…that is, it's different than when we take professional images because…

Someone help me out here.

Actually, I can think of one reason besides the "us versus them" reasons mentioned above. Because the general practice in fandom at large is to ask for permission, there's a tacit association that goes along with having Fan Q's work at your site. That is, the majority of the fans who visit Fan Y's web site are going to assume that Fan Q knows and approves of the image being used, and thus possibly approves/endorses/likes the content of the site in a way that they won't assume about the professional creators.

Okay, so it's a bit thin. Because in this instance, as with unauthorized sequels to fan fiction, most people's responses really do seem to come down to "us versus them," to "they get paid and we don't" and similar arguments, and again on these, your mileage may vary. And actually, I suspect we give fan artists more respect in this area than fan writers, primarily because good fan art is a lot scarcer than good fan fiction, and thus the threat of an artist no longer posting because she doesn't like being poached is more dire.

And again, I suspect most of us abide by this community standard even if we don't agree with it, because, again, it is a community standard. But also again, I think it's one of those things that we would be aware isn't necessarily a logical leap for people who aren't immersed in fandom, or aren't in the circles where this norm is a given.

Which brings us to Live Journal icons themselves, and the poaching thereof. I think here, the "don't take without permission" standard makes a bit more sense, and not just because giving credit is difficult. Icons serve a very particular function. Beyond just looking pretty, or making a pithy or pointed statement, they can serve as identity markers. Not all do, but some certainly come to be associated with an individual to the point of being as much a part of their identity as their name. Do I own this image of Rhetorica? No, of course not. But I've been using it as my default icon since I first got my journal in 2002, so I'd say that by this point, it's pretty strongly identified with me in certain circles, and I would in fact feel a little strange seeing it show up next to someone else's name.

Certainly not all icons are quite so, um, iconic, but in the absence of knowing whether one is heavily identified with a particular person or not, asking seems the best course of action.

Conclusion
I suppose I should clarify that I'm not calling for all-out poaching even in the instances where I've argued that there's little difference from what we do to creators. Personally, I'd be flattered as all heck if someone wrote a sequel to one of my stories, and have no need to be asked ahead of time. Personally I'd love to see fans riffing (note the f's) off each other's stories all the time. Certainly the various remixes have shown the possibilities in that. However, I know that being part of a community means sometimes going along with norms I might not agree with, and while I'd love to see those some of those norms challenged, the question of fans writing unauthorized sequels to fan stories isn't a hill I want to die on.

What I would point out, however, and hope I have above, is that those norms aren't always very intuitive, and that as fandom gets bigger and bigger, just how obvious some of these notions aren't is going to become more and more apparent. This may mean making certain expectations clearer (stating outright on a web page or in a story what you do and do not want people doing), it may mean just being calm and patient when people act in ignorance of those norms, or it may mean tossing some of them altogether. But before we act as if everyone ought just to know them, we might want to remember that we are all, after all, textual poachers.