Fan Fiction Writing and Distribution: Points to Consider

Michelle Turner: Blog Post

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Fan fiction has become one of the largest, if not the largest, growing genres of literature in our country- particularly on digital platforms. Fan Fiction, according to

Wise Geek, is fiction that has been written by people who are fans of a particular television series, movie or book and the fan bases their story on the characters from those movies, shows, or books. Most modern examples of fan fiction are published on the Internet.

The success of fan fiction works such as Fifty Shades of Grey has raised questions about the fair use of previously copyrighted characters and stories that are often central to a piece of fan fiction and the distribution of these works both online and in print. These questions related to the fan fiction of Fifty Shades are relevant to anyone exploring digital media publishing and distributing- particularly those in the growing fan fiction industry.

Fan Fiction Copyright Question

The website Wise Geek explores the question of copyright in regards to fan fiction – a question that must be addressed for anyone considering venturing into the digital publishing space. Wise Geek explains:

“Any material that uses fictional characters, places and other names from copyrighted works of art constitutes a violation of copyright laws. Many authors, producers and publishers who own copyrights will go to considerable lengths to protect their works, especially if they consider alternate uses of their material to be damaging in some way. Others, however, choose not to pursue claims against creators of fan fiction as long as they are not trying to profit from it. This is likely an appreciation of the fact that fan fiction can be a powerful form of free publicity as well as recognition that negative publicity could result from a legal attack on the most dedicated members of a work's fan base. Some copyright holders have even embraced fan fiction, holding contests to allow fans to submit their writings and sometimes publishing collections of these materials.”

Fan Fiction Distribution

As the Fifty Shades of Grey movie began to hit the big screen, a woman in Texas won a lawsuit on the basis that she was defrauded out of royalties from the best-selling novel based on the original fan fiction by E.L. James. According to the lawsuit, Jennifer Lynn Pedroza was a partner in The Writers Coffee Shop that originally e-published The “Fifty Shades” trilogy. The rights to the book, which subsequently sold more than 100 millions copies of the book and earned 81.7 million dollars during it’s movie debut, were sold while excluding Pedroza from the deal. A judge recently agreed that Pedroza should receive her share of the royalties- an amount that is still to be determined. Essentially, what originally simple fan fiction posted on a website, has become a media powerhouse. The lawsuit is a testament to the importance of understanding the rights of both the author and the publisher- even if that publisher is simply the one responsible for distributing the content.

Anyone who is considering venturing into writing and/or publishing fan fiction must take into consideration the issues of both copyright restrictions and the rights of both writers and publishers during the distribution process.

A Marketing Plan, A Website Technology, Trademarked Key Words: Three Lawsuits Worth of Lessons

According to Boundless.com (n.d.), the growth of digital media has required lawmakers to reevaluate how traditional trademark, patent, and copyright laws can and should be applied to intellectual property in the realm of digital media, digital technology and digital media marketing.

“Social media and other digital technologies encouraging the sharing and re-purposing of content across different communication channels have introduced new difficulties in enforcing copyright, and inspired additional challenges to the basic legal philosophy of copyright. To protect their intellectual property both offline and online, businesses that rely heavily on copyright protection laws have advocated the extension and expansion of copyrights to the digital space (Boundless.com, n.d.).”

Understanding the value of intellectual property, protecting a brand’s intellectual property, and the legal precedents connected to intellectual property and matters such as marketing strategies, website technology, and search engine optimization, are essential in establishing a successful, ethical, and legal digital media marketing agency. Whether it is a Chihuahua Taco Bell marketing campaign, Amazon’s patented website technology, or protecting your brand name against a media giant such as Google, different intellectual property lawsuits all have one thing in common- they provide a deeper understanding of how to protect one’s intellectual property.

Taco Bell’s “Yo Quiero Taco Bell!” Campaign

In 1997, Taco Bell restaurants launched the chain’s most famous marketing campaign to date- a talking Chihuahua that exclaimed "¡Yo quiero Taco Bell! (Conley, 2014).” The famous dog was wildly popular for many, many years and was used in a wide variety of campaigns. In 2003, two Michigan men filed a lawsuit claiming ownership to the intellectual property that the Chihuahua campaign was based, and that thus, they were entitled to compensation (Conley, 2014). According to the men, they originally pitched the idea to Taco Bell but the restaurant stole the idea and then hired the TBWA agency to bring it to fruition. The men were subsequently awarded $30.1 million as the court agreed they should be compensated for their intellectual property (Conley, 2014). This case emphasizes the importance of a marketing company using only campaigns based on their own intellectual property and should proceed very cautiously when using an idea that could possible be attributed to someone else.

Amazon’s 1-Click Shopping Technology

Only two years after Taco Bell launched their Chihuahua campaign, online shopping giant was granted a patent for their 1-click shopping technology (Bostwick, 2009).  What seems like a simple button on a website has actually generated several patent disputes-including one against Barnes and Noble and their “Express Lane” technology just one month after Amazon was issued their patent (Bostwick, 2009). While the terms of the lawsuit against Barnes and Noble were not disclosed when the suit was settled in 2002, Amazon’s 1-click shopping website design demonstrates that a digital media company should not overlook protecting any proprietary aspect of their website (Bostwick, 2009). Do not underestimate the value of a unique aspect of your brand- regardless of how inconsequential it may seem at the time.

Google Trademark Keywords

Ten years after Amazon received their patent for their proprietary website technology, Google was ordered to continue in a lawsuit filed by “Rescuecom.” While the lower courts, originally discussed the lawsuit, the 2^nd US Circuit Courts issued its ruling in April of 2009 (Bostwick, 2009). Google’s keyword technology allows a brand to appear at the top of a Google search page when a consumer searches for a specific word or phrase related to that brand (Bostwick, 2009). In this particular lawsuit, Google was accused of selling “Rescuecom”- a trademarked name proprietary to “Rescuecom”- to the competitors of the brand. This allowed the competitors to appear on the results page when a consumer searched for the trademarked phrase (Bostwick, 2009). This is only one of multiple lawsuits in regards to the same predicament and stresses the importance of trademarking a brand’s intellectual property. Without having their name trademark, Rescuecom would have had no grounds in which to question Google’s practices. 

Each case offers a unique approach to the question of intellectual property from very unique perspectives through very unique circumstances. However, despite their differences, each one demonstrates the same key points- it is essential to protect a brand’s intellectual property, while remaining ever vigilant and ensuring that said property is not being used without proper permission, licensing, or compensation.

Selling-Negotiating-Winning: Insight from Master Negotiator J.T. Stewart

JT Stewart, author, professional speaker, entertainment agent, and marketing guru, is probably best known for his success in growing the American Fighter Apparel brand- an Mixed Martial Arts themed line. Stewart was retained by an upstart clothing brand called "American Fighter" at a time when the company’s annual sales were less than $20,000 annually. After retaining Stewart, sales improved ten fold to over $200,000 in his first year with the company (Stewart, personal communication, March 4, 2015).”

Stewart was responsible for the overall marketing, as well as the development and execution of a licensing program. Through Stewart’s effective negotiating and sales capabilities, American Fighter clothing experienced steady growth over the next five years with sales reaching $500,000 through online sales alone. Stewart, a partner in the American Fighter brand, was also instrumental in negotiating a partnership with Affliction Clothing. With that partnership in place, sales rose to $9 million in 2014 (Stewart, personal communication, March 4, 2015).”  

Now, Stewart is focusing on developing his own apparel line, while also returning to his speaking, writing, and sales roots.  He is working to develop his sales training course for young entrepreneurs, “Selling-Negotiating-Winning,” while also working on his second book, “Experience is a Great Teacher,” and negotiating the sale of live productions such as “4192: An Evening with Pete Rose” and “Stars of Music Row” (Stewart, personal communication, March 4, 2015).

The Maven: How do you separate the people from the problem when you are negotiating? What tips do you have for new negotiators who are trying to do this?

Stewart: “I don’t believe it is entirely possible to separate the person from the problem. Each person that you are negotiating with will have his or her own tendencies and personality. There are some things you can do to try and relate, and gain some common ground with the person on the other side of the negotiation- such as how you speak to them and how you read their body language. I think it is important to be upfront, so you can move towards your common ground sooner. When you get into the nuts and bolts of solving the problem, having that foundation of common ground and trust will be invaluable. It is important to relate to the person you are negotiating with in a relaxed manner, while still maintaining your internal guard up. Without establishing that trust and rapport, you will never overcome their objection and have any hope of solving the problem (Stewart, personal communication, March 4, 2015).”

The Maven: How do you handle positional bargaining tactics?

Stewart: “Never give something up without getting something in return. When someone is trying to position their argument, they will ask you for some sort of concession. It is your job to either rebuff their request, or use it to your advantage by giving them their concession only if they are willing to make a concession themselves. They can try to position their argument, but reality is still reality. If they want something they must give something (Stewart, personal communication, March 4, 2015).”

The Maven: Can you give me an example of how you worked toward mutual benefit while you were negotiating a deal?

Stewart: “The first thing you always have to do is figure out what it is they want. People will often use this as a carrot or a dodge. What do they truly want? Once you have viewed the negotiation from their perspective and ascertained what they really want, you can assess in your mind what the common ground would be. For example, if I am negotiating a show with a venue for Pete Rose, I may not tell them upfront that he will do a meet and greet. I will wait until they are looking for added value, and then suggest to them that I might be able to get Pete to do a meet and greet for a premium price ticket. I actually knew this all along, but I held that card close to my best. When they seem that I am willing to get Hit King Pete Rose to do a meet and greet, and they can make more money, it’s a mutual benefit. They get to make more money, and at that point, I get to close the deal. I use a closing line such as, ‘If I can get Pete to do an additional meet and greet, do we have a deal?’ That line will either smoke out any additional objections or they will agree. That line is also followed up with the question, ‘Is that fair?’ Nine times out of ten, they will agree. They got added value and we got the show. Mutually beneficial to all parties (Stewart, personal communication, March 4, 2015).”  

The Maven: What advice do you have for overcoming objection?

Stewart: “If the person keeps bringing up the same objection, you have to determine whether that is an excuse or if it is truly an obstacle. The way I get around repeated objections is to ask, ‘How can we solve that?’ This gives me insight into what they are looking for as a solution- and if there is one. It also helps them to answer their own questions. When they give you the answer, you can both determine if there is a executable solution (Stewart, personal communication, March 4, 2015).”

The Maven: If you only had 30 seconds to make someone a better negotiator, what would your elevator pitch/tutorial be?

Stewart: “Listen, read their body language, and speak in soft selling words with soft tones. That makes you appear like a lamb. But…on the inside, you must have the mindset of being on the attack. On the inside, you are a lion. You just can’t show that to the person on the other side of the negotiation. Get as much information as you can about any objections, and then solve them, one by one, until all the objections are gone and you are able to close (Stewart, personal communication, March 4, 2015).

For more information, on J.T. Stewart, his various projects, and how you or your organization can be a part of them, do not hesitate to email him at jtagency@gmail.com.