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The legal argument against fan fiction isn't actually very strong. The scenario Card describes, in which an author's rights are diminished because he or she doesn't actively defend them, is associated more with trademark than with copyright. But in practice, a fan-fiction writer who receives a cease-and-desist letter has almost no choice but to comply. No fan wants to go through the bother and expense of litigating against a celebrity or a major corporation. As a result, no definitive legal precedent exists.
But there's more to argue about than legal niceties. A lot of authors feel emotionally and viscerally that nobody else has any business using their characters. George R.R. Martin, author of A Game of Thrones, writes on his website, "My characters are my children ... I don't want people making off with them, thank you. Even people who say they love my children." Ursula K. Le Guin, another giant of the fantasy canon, writes, "To me, it's not sharing but an invasion, literally strangers coming in and taking over the country I live in, my heartland."
The confusing thing about this disagreement is that neither side is wrong. The contradiction lies in our culture, which supports both positions at the same time and hasn't sorted out a good way to mediate between them. Up until relatively recently, creating original characters from scratch wasn't a major part of an author's job description. When Virgil wrote The Aeneid, he didn't invent Aeneas; Aeneas was a minor character in Homer's Odyssey whose unauthorized further adventures Virgil decided to chronicle. Shakespeare didn't invent Hamlet and King Lear; he plucked them from historical and literary sources. Writers weren't the originators of the stories they told; they were just the temporary curators of them. Real creation was something the gods did.
All that has changed. Today the way we think of creativity is dominated by Romantic notions of individual genius and originality, and late-capitalist concepts of intellectual property, under which artists are businesspeople whose creations are the commodities they have for sale. But the pendulum is swinging back the other way. The particular feature, or bug, of our millennial moment is a double vision that allows us to look at stories both ways at once. In 1966, the year Star Trek premiered, Jean Rhys published Wide Sargasso Sea, which retold the story of the mad wife from Jane Eyre, and Tom Stoppard staged Rosencrantz and Guildenstern Are Dead, which borrowed two bit players from Hamlet. Both works fused homage and critique as surely as Spockanalia did. In her 2005 novel March, Geraldine Brooks filched the absent father from Louisa May Alcott's Little Women and took him on a tour of Civil War battlefields. March won the Pulitzer Prize.
These works aren't fan fiction in any strict sense. They're written for profit, and they're adorned with the trappings of cultural prestige; true fan fiction has naught to do with either one. But they come from the same place fan fiction does: that moment when a reader enters a world that was created by someone else and remakes that world in his or her own image. It's hard to throw out "A Fragment Out of Time" without throwing out March as well, and where would that end? If authorship is no longer the exclusive domain of the gods, it's no longer the exclusive domain of authors either.
There may be hurt in that, but there's a great deal of comfort as well. A writer's characters are his or her children, but even children have to grow up eventually and do things their parents wouldn't approve of. "We don't own nonfictional people," Maltese says, "and at the end of the day, I don't think we can own fictional ones either."