Entertainment Weekly (EW) has apparently stepped in it big time with the fan-people of the world. Late this past December, in preparation for their month-long January fandom extravaganza dubbed “Fanuary,” they put out a call for fanfic writers to submit original fanworks for a contest to win publication in their magazine. Although at a glance it seemed a generous outreach to the fandoms of the world, a quick look at the terms and conditions gave the contest a way more sinister shine, causing a decent uproar in the fan corridors of Tumblr. The official EW post advertising the contest has managed to garner over 23,000 notes as of this afternoon, and most of the commentary on it is predictably negative and scathing.
Although the contests contains a fairly boiler plate list of stipulations (all written in the prototypical legalese of corporate protection) some of the “highlights” include:
“Entries become sole property of Sponsor and none will be acknowledged or returned”
“By entering, Entrant warrants that his or her entry (1) is original and does not infringe the intellectual property rights of any third party, (2) has not been published in any medium”
“Entrant grants to Sponsor a non-exclusive, worldwide, royalty-free license to edit, publish, promote, republish at any time in the future and otherwise use Entrant’s submitted fan fiction, along with Entrant’s name, likeness, biographical information, and any other information provided by Entrant, in any and all media for possible editorial, promotional or advertising purposes, without further permission, notice or compensation”
“Acceptance of the prize constitutes permission for Sponsor and its agencies to use Winner’s name and/or likeness, biographical information, fan fiction, other materials submitted for advertising and promotional purposes without additional compensation, unless prohibited by law.”
“Entries may be edited and published, at EW’s discretion”
This means that EW essentially wants to publish fanwork for their own profit with no payment to the original author, and a possible moratorium on said author publishing the work elsewhere. The latter issue appears to be somewhat contested, however.
In response to the outcry specifically over the terms of ownership — Entries become sole property of Sponsor and none will be acknowledged or returned — author Jennifer Povey explained on her Tumblr blog:
It’s a hangover from the days of physical submissions and it just means that they won’t send your entry back to you. It doesn’t mean they get the rights, it means that if they had received a physical manuscript, that physical manuscript is now theirs. The rest of that clause is also clearly a hangover (It’s not our fault if your submission gets lost in the mail). No longer necessary but included surprisingly often (source)
Indeed, OTW’s resident copyright expert Heidi Leia also weighed in on this issue to say:
[A]s the Copyright Office says, a “transfer of copyright ownership … is not valid unless an instrument of conveyance (for example, contract, bond, or deed) or a note or memorandum of the transfer is in writing and is signed by the owner of the rights conveyed or the owner’s duly authorized agent.” See 17 U.S.C. § 204(a). We don’t believe that submitting a contest entry constitutes a signing by the fic-writer; if it doesn’t, then there’s no assignment of the fic. There is, as we said, a non-exclusive license, but that means that after submission, the fic-writer can still do anything they want to with said story (source)
It seems that aspect of the controversy is due more to EW’s poor wording of their terms and conditions, rather than being a reflection of actual binding ownership of the work to the exclusion of the submitting author. EW can still do what it pleases with the work after it has been submitted, of course, but they likely cannot stop the original author from also publishing it elsewhere (assuming said author does not sign a formal transfer of ownership after having won).
Many fans have also been lambasting EW’s seeming ignorance as to the fact that they have asked for “original” work that “does not infringe the intellectual property rights of any third party,” even though fanfiction is by definition derivative of copyrighted material.
However, in the same post, Leia has also issued a fairly strong rebuttal to that critique as well:
A fanfic can be an original work. EW can ask for fanfic submissions that do not “infringe upon the rights of any third party” because it’s an accepted legal judgment that fanfic does not automatically infringe upon the rights of any third party…The underpinning to this is that fanfiction is transformative, Fair Use and thus non-infringing. It says “fan fiction submission” – not just “submission”. By putting “fan fiction” into that sentence, they’re creating a situation where a court would have to use the standard meaning of “fan fiction” (source)
It is understandable why fans would assume fan fiction “infringe(s) upon rights of a third party” but U.S. case law has been pretty lenient lately on what it will classify as “transformative,” and therefore protect under Fair Use. In any event, EW clearly feels confident enough that they can legally make a profit off derivative fanworks.
EW has had an uneven relationship with fan communities in the past. They came under intense scrutiny in 2012 when they erased slash ship submissions to their “Couple You’re Shipping Like Crazy” poll, but later they created a “Fandom Friday” column, and have apparently recently decided they aren’t above the occasional strategic slash ship reference when it suits them.
Fandom based engagement and outreach is a corporate trend that has been radically increasing in recent years, one which definitely exceeds EW as a singular entity. From Rainbow Rowell’s well-known Fangirl and Carry On novels, to the increasing use of slash references as a way for commercial products to gain social media attention (looking at you Olive Garden, Applebees and Astroglide), to that most infamous of all fan cash-grabs, 50 Shades of Grey, fandom is in a transitional period of rapidly increasing commercialization.
This is not necessarily all to the bad, but it does mean fans have to tread ever more carefully around the corporate interests that are increasingly attempting to gratuitously profiteer off their labors of love.