Whoosh! Issue 62 - November 2001

By Michela Ecks
Content copyright © 2001 held by author
WHOOSH! edition copyright © 2001 held by Whoosh!
6054 words

The Scourge of Fan Fiction (01-02)
The Curse of Derivation (03-06)
Derivation and the Single Author (07-11)
Fan Fiction Based on Novels (12-15)
When Agendas Collide (16-20)
The Fan's Perspective (21-24)
Can a Balance Be Found? (25-26)
Works Cited


And then the sidekick defeated the Warrior Princess 
and reigned supreme throughout the land
Gabrielle never had to worry about things like copyrights.

The Scourge of Fan Fiction

"'I am going to inform your father about what happened here today,' Dumbledore quietly continued. 'And as punishment, the two of you will be required to work as assistants to Severus Snape for the rest of the term. He could use a lot of help preparing ingredients for his classes and in cleaning up the classrooms, and the two of *you* could obviously use some more help in fashioning potions.'" (Beth Ann)

[01] The above is an extract from a story about Fred, George, Dumbledore, and Severus Snape. These characters all appear in the Harry Potter books by J. K. Rowlings yet the above example is not by J. K. Rowlings. It is a story written by Beth Ann, a fan fiction writer. This story was published without authorization or permission from J. K. Rowlings, Time Warner, or Scholastic Books. It is one of many thousands of stories on the Internet expanding on the tales of a boy named Harry Potter.

[02] Stories, like the example above, are known as fan fiction, and there is a lot of this material on the Internet[Note 01]. Fan fiction, also known as "fanfics", are stories that are derived from other material such as Harry Potter, Star Trek, Zelda, Star Wars, Xena: Warrior Princess, The Man From Uncle, Lord Of The Rings, etc. Fan fiction is customarily not authorized by the people who have the legal rights to that material[Note 02]. There are a few exceptions to this rule. The exceptions include anthologies of fan fiction published by Star Trek (Simon & Schuster, Inc.) and Darkover (Rossi), Core creating a fan fiction contest for stories featuring Lara Croft (Core), and Wizards of the Coast archiving Dragonlance fan fiction on their site (Wizards of the Coast).

The Curse of Derivation

[03] In the legal world[Note 03], fan fiction's status is somewhat unclear because of a lack of clear legal precedent in case law. Most legal scholars[Note 04] consider fan fiction to be a form of "derivative fiction". In the article "10 Big Myths About Copyright Explained", Brad Templeton states that fan fiction is a violation of copyright:

"U.S. Copyright law is quite explicit that the making of what are called `derivative works' -- works based or derived from another copyrighted work -- is the exclusive province of the owner of the original work" (Templeton)

[04] This is supported by the Copyright Act of 1976 that states that the creator has:

"the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies ... to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic ... and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary ... pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly." (Fisher)

[05] Jeffrey L. Fisher explains in "The Copyright FAQ" that these rights are exclusive to the copyright owner and the rights

"are not waived through inactivity or failure to enforce. These rights can be enforced at the owner's discretion and at any time[Note 05]. It is illegal for anyone to violate any of the rights provided to the owner of the copyright." (Fisher)

[06] The reality of the situation is that few companies invest their time and money in order to protect their copyrights and trademarks of their media products when it comes to derivative works posted to the Internet. Those companies that do seek to protect their intellectual property often find themselves having to deal with a fannish backlash such as the one that happened after Lucas Films and Time Warner sought to protect their intellectual properties. (Weise) For some large corporations such as Viacom, who owns Star Trek, tolerating fan fiction is advantageous to their company. The publishing of anthologies has created a sense of unity within that fandom. Overall, fan fiction has the potential to expand a company's market share by bringing greater exposure to their product, increase interest in their product, create fan unity, and is not competing with their product.

Derivation and the Single Author

[07] The situation differs when it is individuals, not companies, who find their work, their intellectual property, as the basis of derivative fiction. Authors have a different set of concerns to worry about. For most authors, their work is often their sole source of income[Note 06] and actively protecting their work, work that is protected under the US Civil Law through intellectual property rights acts such as the Copyrights Act of 1976, is the only way to ensure the continuance of their livelihood. Because of this, protecting their copyright becomes a bigger issue than it might be for a corporation.

[08] This paper explores the issues surrounding fan fiction derived from books and makes an argument that fan fiction derived from books should not be published to the Internet without the consent of the author, creator, or copyright owner[Note 07]. Furthermore, the paper will examine both fan and author concerns as they pertain to fan fiction derived from books.

[09] There are several compelling reasons for authors to not allow fans to write fan fiction based on their work. The first reason is that there exists a potential for possible litigation. The second is that fan fiction competes with their work because professional works exist in the text-based medium as fan fiction. A third reason is that fans misinterpret their work, which may confuse an author's audience. The final reason is that fan fiction derived from books has less room to explore than fan fiction derived from television. All of these are reasons why authors worry about fan fiction derived from their work.

[10] In 1992, a fan fiction writer[Note 08] sued Marion Zimmer Bradley. The fan claimed that Marion Zimmer Bradley stole her ideas, ideas that Bradley read when the fan submitted her Darkover story to the fanzine Marion Zimmer Bradley ran, for her latest Darkover novel. This fan then hired a lawyer and an agent. She demanded half the royalties from the book and to be credited as a co-author of the story. Daw, Marion Zimmer Bradley's publisher at the time, put the book on hold to avoid the possible legal repercussions of going to court (Rossi). Because of the whole incident, Marion Zimmer Bradley lost several years of hard work. This sort of incident has potentially serious repercussions for professional authors[Note 09]. They have to be extremely careful about reading fan fiction derived from their own books and original fiction sent to them by fans lest they be accused of the same thing[Note 10] and open themselves up to potential litigation[Note 11].

[11] This may be nearly impossible to do if the author is an active Internet user and fans do not clearly label their fan fiction and fan sites with a notice that the site is not safe for the author to visit. To counter this problem, several authors have created policies that state you can use their works as a basis for fan fiction but that doing so means the story becomes property of the author[Note 12]. Because of this potential for litigation, most authors ask that fans[Note 13] observe policies they enact.

Fan Fiction Based on Novels

It says we're being sued by half a dozen Chin film 
Gabrielle's stuff was all original.

[12] Fan fiction and fiction books have something in common. They both exist as text-based mediums. They both use words to convey emotions, images, and a sense of place, time, and being. They have the potential to compete with each other[Note 14]. Camille Bacon-Smith expresses her concern over the medium difference between fan fiction derived from television and fan fiction derived from books when she says:

"I don't object to television-based fan fiction, because television is a different medium, and therefore fan fiction doesn't hurt the television show's earning power. Also, television is already a cooperative medium, therefore fan fiction doesn't infringe a unique creative vision. "Authors of books and stories are generally paid very poorly, however, and rely on the uniqueness of their characters and settings and stories for their income. When someone offers stories about the characters and settings for free, the author's power to charge for the work is damaged." (Bacon-Smith)

[13] Lawrence Watt-Evans expresses similar concern about the issue of fan fiction as a written medium. In a personal e-mail, he said the following about fan fiction derived from books:

"And the other thing, which might seem contradictory, is that written fanfic is too close to the original -- it's the same medium. It seems to be stealing some of the original author's market -- and given how little money most novelists make to begin with, that bothers me." (Watt-Evans)

[14] This concern is expressed again by Doranna Durgin. In a private e-mail dated April 9, 2001, she says:

"Genre fiction authors aren't as well known. Even the big name pros within a genre can be completely unknown outside that genre, with the rare exception of the Anne Rices and Stephen Kings of the publishing world. Someone coming across fanfic based in one of my universes may well have no idea that the characters and setting =are= mine--or any way to judge how accurately they're represented. Also, fanfic based on printed fiction is being presented in the original medium, and as such is more directly competitive." (Durgin)

[15] Laura Resnick agrees that fan fiction has the potential to compete with published books by an author. In a personal e-mail, she said that she was sure that if fans started competing in the same medium as movies by producing fan sequels to the movie[Note 15], the studios would be just as concerned as authors are about their own works being used with out their permission. This concern about competition in the medium was a recurring theme in e-mail message from several authors[Note 16]. Fan fiction does have the potential to compete with books as they are both text- based mediums.

When Agendas Collide

[16] Another concern authors have is that fans will radically or intentionally misinterpret their stories. As such, the fan writer will compose a story with the author's characters in the author's universe that is radically different than the canonical versions of the characters and universe. The fan fiction writer creates his or her own original characters under the auspices of the original story. The characters help to push the fan fiction writer's own agenda, which may be at odds with the professional author's. They are not writing stories derived from the original because, in a book, there is only one correct version of the story: the author's. There is little room or no room for creativity because fiction has few constraints.

[17] Books do not have budget or time constraints that plague movies and television. There are things that will not be explored by television and movies because of those. When an author writes a book, there is always the possibility of a sequel. If a sequel is written, any speculation a fannish author may have done has the potential to be out of character or radically differing from the canon material. If a fan views a character as "gay" by reading into the text[Note 17] when the author knows the character is just a sexually repressed heterosexual male but has not yet written about this, then the fan is wrong.

[18] Several authors do not tolerate nor have policies regarding fan fiction derived from their work because of concerns about how characters are portrayed[Note 18]. Author Kristen Randle is deeply concerned about how fans portray her characters in any fan fiction derived from her books. She says in a private e-mail dated April 6, 2001 the following:

"I do not wish anything that comes from me to be used in a way that I would judge to be outside my moral view. I would be extremely upset to find my characters sleeping together, for instance, since I find that kind of thing brainless, selfish and extremely damaging to the culture as a whole. There are plenty of people who don't care about this; I would hope anybody intrigued by my characters would be so because of their sense of honor." (Randle)

[19] Lawrence Watt-Evans echoes a similar feeling based on his own experience with fan fiction derived from his work. In a private e-mail dated March 26, 2001, he says the following:

"Third, on the few occasions when I _have_ seen fanfic based on my work, they always got the details wrong. In one case the whole thing was just so _off_ that it set my teeth on edge and left me wondering how anyone could misread my stories so badly." (Watt-Evans)

[20] If fan fiction is wrong, then it has the potential to confuse would-be readers who run across the material on the Internet. This is a valid cause of concern of authors that fan writers will get it wrong.

The Fan's Perspective

And don't forget, you owe me big time for these ideas, 
right punkin?
Gabrielle did have a little unsolicited help from time to time.

[21] If the authors have reason for concern, the fans have equal cause. Readers of books read them because they enjoy them. They write stories based on books because they love the stories and want to add their own twist to them and to share their stories with people like themselves, people who enjoy books by this one certain author. In a post to ffn-slashers-unite@yahoogroups.com[Note 19], the following questions were asked to gauge people's feelings about fan fiction derived from books:

"1. Do you read/write fan fiction derived from books? 2. If so which books/authors do you read/write fan fiction derived from and why do you read/write fan fiction based on books? 3. If you found out an author had a policy against fan fiction derived from their material, would you continue to read/write fan fiction based on their work? Why or why not? 4. What are you general feelings on fan fiction? Do these feelings differ when it is fan fiction based say on books versus television?"

[22] The consensus appears to be that people read or write fan fiction for enjoyment and to give a sense of belonging to a community. They were not concerned for the writers, nor did they seem to see any real reason for the writers to be concerned about their activities[Note 20]. A few said, had their positions been reversed, they would tolerate fan fiction being written from their original work. They did not see it as a potential market threat as people read fan fiction to tide them over between new books which, in some cases, can take years. Most respondents felt fan fiction derived from books left more room for creativity than television. Most indicated that they would not stop writing fan fiction derived from books were they asked[Note 21] and one or two indicated they would continue writing just to spite the authors.

[23] Are fan views justified in light of some authors' feelings on this topic? The answer is yes and no. Fans and authors have a different set of priorities. Fans are concerned with their own personal pleasure that they attain from reading books and fan fiction, and writing fan fiction. Professional authors are concerned about their own livelihoods, both as professional writers with reputations to maintain and their monetary livelihoods that allow them to provide for themselves and their families. Because of different priorities, seeing eye-to-eye is often difficult for both parties.

[24] There is a delicate balance and when it comes down to it, fans are the ones who will probably have to back off before the author. If they want to see the continuance of stories by authors they enjoy, they need to give the author the time and the space to do that. Fans are also the ones who are generally in the wrong from a legal point of view. Fan fiction based on books is a derivative form of fiction with certain legal issues about it. Authors have the right to protect that area as the law says they have the right to control the market as far as derivative works based on their material goes if there is the potential to exploit that market. Because fan fiction is in the same market as professionally published material, a text-based market, authors can and will exploit that market.

Can a Balance Be Found?

[25] A balance needs to be struck between the two parties: fans and authors. Several authors have reached that balance with their fans. J. K. Rowlings tolerates fan fiction (Ecks)[Note 22]. Tamora Pierce encourages her young fans to write anything in order to help themselves grow as writers (Pierce). Kristen Randle allows fan fiction to be derived from her work so long as it does not go against her own moral views and is not out of step with the characters (Randle). Terry Pratchett prefers fan fiction not be written from his work but tolerates it in order to foster a sense of unity within the Discworld fandom (Disc World Monthly). Piers Anthony allows fan fiction so long it is not sold at a profit (Anthony). Lois McMaster Bujold allows fan fiction to be written by her fans but does not read it (Bernardi par. 2). Anne McCaffrey allows her fans to write fan fiction on the condition it is not archived on the Internet and follows guidelines she has established (Gaskill). These authors have managed to find a sense of balance that allows them to protect their copyright while at the same time allowing their fans to get creative with their works, enjoy them in a new and fun way, and to improve their own writing skills.

[26] The issue of writing derivative works based on novels or short story series is a tricky one. There are concerns on all sides and a quagmire of legal issues further clouding author and fan issues. Authors are concerned about their own well being, avoiding litigation and the possible misuse of their work by fans. Fans are concerned about retaining their communities and their own enjoyment. The law states that copyright owners have the right to control derivative based on copyrighted material. Finding the balance between those concerns is a difficult problem, one that needs to be solved.


Note 01:
FanFiction.Net (http://fanfiction.net), Gossamer (http://www.gossamer.org), Trekiverse (http://www.trekiverse.org) are among the largest archives of fan fiction on the Internet.
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Note 02:
The exact definition of fan fiction varies depending on who you ask. In examining some twenty-five definitions of fan fiction found on the net, most had the common element that fan fiction is based on other material. The definition offered by Writers University is as follows:

"Fan fiction: Original fiction by fans of a show, movie, books or video game. The fiction involves characters and the location of the show from which the person is a fan. Fans write fan fiction for a variety of reasons. One of the most popular reasons is to explore themes and ideas that will not or cannot be explored on the show, movie, book or video game."
which is slightly different than the one offered by Bad Fic! No Biscuit! found at http://www.englishchick.com/badfic reading as follows:
"fiction written by fans about characters created by someone else. Generally, fanfic is written about movie or television characters. Fanfic is never written for profit, only for the enjoyment of fellow fans. Copyright on the characters (and anything else borrowed) is owned by the originator (usually the production company or studio that produces the show/movie)."
In addition, the one offered at http://www.thehumorwriter.com/My_Serious_Side/Fan_Fiction/fan_fi ction.html titled "Hello Mary Sue" by Carol Moore is still different yet, defining fan fiction as follows:.
"Fan fiction is a literary genre that exists outside of mainstream, commercial entertainment. It is what it sounds like: stories written by fans starring characters from movies and television. "

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Note 03:
Information on fan fiction as a form of derivative fiction can be found at
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Note 04:
Elizabeth Weise, in her article in USA today, cites Janes Gingsburg in the following:

"there's extensive precedent for non-commercial use of trademarks by fans. ' Nominative fair use' allows the descriptive use of someone else's trademark as long as the use doesn't suggest sponsorship or endorsement by the trademark holder. That's certainly covered by the disclaimers plastered over every Potter fan site."
This may possibly be a loophole that would render most fan fiction legal should a case regarding fan fiction go to court.
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Note 05:
This is different than trademark law, where according to Elizabeth Weise in an article for USA Today, if you do not protect your trademark, you can lose it.
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Note 06:
Dave Duncan, in a private e-mail, emphasizes this point:

"Some people do not realize that creative artists require copyright protection in order to make a living".
Orson Scott Card acknowledges that fan fiction has the potential to cost him money when he is quoted in an interview:
"So fan fiction, while flattering, is also an attack on my means of livelihood".

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Note 07:
It should be noted that not all authors own the rights to their books. In a private e-mail from Tracy Hickman, he stated that he did not own much of his work. This is similar to other authors who responded to e-mail questions from me. Christie Golden, Yvonne Navarro, and Linda Evans both confirmed via private e-mail that they fell into the category of not always owning their work.
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Note 08:
More information can be found about this incident on at the "Firebird Art & Music" Ask Misty page. Some information about this incident was attained through e-mail conversations with authors. A lot of information was culled from mailing list archives on-line. A majority of the information was found at or confirmed by Fabrice Rossi's "Darkover On-line". Parts of the Marion Zimmer Bradley incident are based on speculation and compilation of multiple stories.
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Note 09:
Several authors who have web pages containing information as to what their policies are and why they created their policy cite the Marion Zimmer Bradley incident as a reason. These authors include Mercedes Lackey (Firebird Art & Music), Dennis L. McKiernan (McKiernan), and David Weber (Gonsalves).
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Note 10:
In Bouchat vs. Baltimore Ravens, Inc. case 228 F.3d 489, the United States Court of Appeals, Fourth Circuit, stated

"Where direct evidence of copying is lacking, plaintiff may prove copying by circumstantial evidence in the form of proof that the alleged infringer had access to the work and that the supposed copy is substantially similar to the author's original work."
This has possible repercussions for professional authors. The fan fiction writer, should they ever choose to sue an author for copyright infringement, needs only to prove that the author had access to their work and that the copying was similar. If an author is a known Internet user and the author has been quoted as reading fan fiction, then they may find themselves with a very weak case.
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Note 11:
For this reason, Terry Pratchett demands that no fan fiction be posted to alt.fan.pratchett. If fan fiction is posted there, he will leave the group in order to avoid potential litigation (Disc World Monthly). Several authors including Mercedes Lackey (Firebird Art & Music), David Silva (Silva), Lawrence Watt-Evans (Watt-Evans), Orson Scott Card (Card), Dave Duncan (Duncan), Roberta Ghellis (Ghellis) and Katherine Kurtz Lackey (Firebird Art & Music) have been asked by their lawyers or agents or have decided based on research not to tolerate fan fiction. More information on individual author policy can be found at http://writersu.s5.com/law/policy.html
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Note 12:
Most policies require filling out a form and attaining author permission. Authors who have this sort of policy include Ellen Hayes (Hayes), Chelsea Quinn Yarbo (Firebird Art & Music), Anne McCaffrey (Kent), Mercedes Lackey (Firebird Art & Music), and Marion Zimmer Bradley (Firebird Art & Music)
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Note 13:
In the question to ffn- slashers-unite@yahoogroups.com about fans actually observing such a policy by an author, the results were mixed. Jeannette Rothenberger said she would observe such a policy by not writing fan fiction from that fandom. Juliette Torres said she would probably observe such a request not to publish but would continue to write because her creative instincts cannot be squelched. Amy Fortuna on the other hand said she would not observe such a policy because "once the book is published, it's no longer just the author's creative property, even though s/he holds the copyright to it". Angel Sparrow agreed with that not following an author's policy because she "would resent someone playing in a sandbox I had marked 'No Trespassing'". Rose agreed with them because she does not think she is harming them. Ailei thinks authors should just get over it. These replies seem to indicate that fans would not observe policies and may explain why some authors are forced to litigate.
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Note 14:
In the case of Harry Potter, fan fiction may also steer people away from the books. In a survey done in #cleftofdimensions on irc.esper.net, when asked why people did not read Harry Potter books, they said they did not feel a need to when there is all that fan fiction. They can keep up with what happens to Harry Potter through the fan fiction. Others who did not read Harry Potter said they did not read it because the fan fiction is so bad, that it speaks volumes about the readers and the writer of the books and they do not want to be affiliated with it. The others in the room, who did read Harry Potter, did not read the fan fiction because it was of poor quality.
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Note 15:
In fact, studios do care when fans create movies based on their material. Lucasfilms has gone after amateur producers who have created their own sequels (Filmfodder).
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Note 16:
Some of these authors include Laura Resnick, Lawrence Watt-Evans, Alan Dean Foster, and Camille Bacon-Smith.
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Note 17:
In fan culture, the act of reading into the text to find examples that support your views of characters is called subtext.
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Note 18:
Larry Niven is one such author who does not tolerate fan fiction derived from his work. According to Writers University's Author Policy page on Larry Niven, Larry Niven created that policy after he read some bad fan fiction derived from his books.
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Note 19:
ffn-slashers- unite@yahoogroups.com is a slash oriented fan fiction mailing list affiliated with FanFiction.Net (FFN-Slashers-Unite).
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Note 20:
The findings of the informal survey to ffn-slashers-unite@yahoogroups.com and in observations, posts to fanfictionnetwriters@yahoogro ups.com, and posts to FanFiction.Net's Digimon forum (ShannonL) match that of Brigette Morissey in her paper "Intellectual Property in Cyberspace" where she says "It is a common attitude among netizens that their activities are harmless because they are not done for profit".
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Note 21:
In a private e-mail to the author, Amy Fortuna clarified issues involving creativity of fans and how it is almost impossible to stop writing. She said

"Basically. An author writes and publishes a book. I read it. I think about it. I start wondering what would have happened if.... I write it down. (I would be hard-pressed not to write it down, it's an irresistible impulse on some level). I find others who also wonder if.... I share it with them.

"That's what I mean by 'not just the author's creative property.' The work is theirs, it is copyrighted to them, but they can't stop me from thinking about it, speculating about it, and finding others who do the same thing. It's not meant to be an insult to the author (for some unaccountable reason, many seem to think so) but rather a compliment, for they've engaged my brain and emotions in their universe, even if I've totally misinterpreted what they were saying."

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Note 22:
Information on J. K. Rowlings feelings can be found at http://writersu.s5.com/law/moreharrypotter.html. This information can be substantiated by two interviews J. K. Rowlings has given. One is an interview with Scholastic Books that can be found at their web site. The other is an interview with Barnes & Nobles that can be found at their web site. J. K. Rowlings is said to be flattered by fan fiction and has read some of it.
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Ecks, Michaela. IS FAN FICTION LEGAL? WHOOSH #57 (June 2001)


Michela Ecks Michela Ecks

Michela Ecks is a 20, almost 21 year old, senior at Northern Illinois University and majoring in Communications. She is a huge Trek fan, reads too many books and has a love of theory about the inner workings of fan culture. She collects Cookie Monsters and books by Peter David and Lois McMaster Bujold
Favorite episode: LOOKING DEATH IN THE EYE
Favorite line: Xena to Ares: "What's the matter, God of War, you afraid of a girl?"
First episode seen: SINS OF THE PAST

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