"Dog In Manger" Copyright Holders

Factual Questions
1

In adolescence long long ago, I was a passionate fan of a juvenile adventure series aimed at boys. (Think “Hardy Boys,” “3 Investigators,” “Danny Dunn” etc etc).

The series has been out of print for decades. The rights are now owned by a major publishing company, and others who have inquired have been told that said company has no plans to do anything with them–no reprinting, no TV version, and so forth.

So–for all you presumptive nonauthoritative nonlawyers out there (but who have useful things to say, as always)–

1-- Do US copyrights have any kind of “must show use” provision to prevent the mindless squelching of potential competitors? (Not asking for debate on the wisdom thereof.)

2-- Noting a recent article about some Russian being threatened with a lawsuit by the Harry Potter people for writing a book with a similar sort of character and a parody-sounding name, which strikes me as a major stretch… How far are the copyright holders allowed to go in preventing the release of “variants” on their holdings? I always assumed someone could write a series called NETTY DROOP, GIRL DETECTIVE with titles like “Secret of the Old Crock” or “Netty’s Most Querelous Leotard” with relative impunity… is No?

3-- And a question specific to the Net: Let’s say I wrote a novel called THE SHINING, PART 2 and posted it on my personal website; or, similarly, my own “updated for today’s readers” version of TOM SWIFT AND HIS TRANSLUNAR BLIMP. Trouble?

Obviously one can’t sell in the marketplace books that violate copyright, or violate registered trademarks (ie, “Hardy Boys”). But to what extent do The Omnivorous They go after noncommercial net-posted materials? (I mean–there’s lots of fan-written Star Trek and Star Wars literature floating around various sites, right?)

Yeah yeah, I “hold harmless” everyone for their responses.

And I thank you.

2

Bummer, innit? Disney, for instance, has frankly said that they will never release “Song of the South.” Nevertheless, they own it, and they can clamp down (hard!) on anyone who peddles illegal copies.

As for “look alike” lawsuits, that’s much trickier. If I wrote a story about a boy magician, and got sued by J.K. Rowlings, I’d just claim I was actually stealing from Neil Gaiman’s “Books of Magic.” (Grin!) (Frankly, I think that Gaiman could sue Rowlings far more easily than Rowlings could sue some of the people she’s gone after…)

Not long ago, someone wrote a story about a little girl in a hotel, and got sued (successfully, IIRC) by the lady who wrote the “Madeleine” series of stories, all about a little girl in a hotel. I don’t know how similar the stories were.

So, if you want to write a “Space Wanderings” series with “Captain Church” and “Mister Jock,” you’d better be REALLY careful to file off any identifying serial numbers.

(Or use the “parody” defense, which is why 2,000 A.D. was able to do a blunt swipe of the Star Trek characters in a recent Judge Dredd story. Damn funny, too!)

Another tactic, which works more often than you might think, is to write to the copyright owner and ask permission.

Trinopus

3

Thanks, Trinopus. Yes, “bummer,” but I suppose the bummerness of it is more a “great debates” issue.

So now I’m more confused than ever.

I thought “copyright” for literary works meant actual plagiarism-- control-C-ing whole paragraphs or chapters, not excused by just changing a few words or names here and there.

That is, I thought it was about words. You mean PLOTS can be copyrighted? Is boy-meets-girl copyrighted? Do you really have to get Stephen King’s permission to write a story about a writer held hostage and forced to write? Can the makers of A BEAUTIFUL MIND threaten anyone who writes a book, or a play, or a film about a delusional scientist? Are people named Annie Hall allowed to write stories about THEMSELVES??

But I’m getting a tad hysterical.

There are “fan” websites in which persons share original fan-written fictional works based upon beloved movie, book, TV, or comic-book characters, or which “continue” (without any intimation of parody) plots of copyrighted works. I’d guess some people who log on will download something they want to read, and print it out for easier perusal. And I suppose if downloading a copy of a song is a violation, so are these activities.

But by the same token, lending one’s brother a book that one has purchased is a violation, as a second possible income-source has been impaired without express permission. (This comment made to elicit clarification, not argue a point.)

And why would anyone care at all about somebody writing a story for micro-limited private circulation based upon copyrighted material decades old–which the copyright-holders have zero intention of ever using at all? (Hence “dog-in-the-manger.”)

Soooo… I’d still like some specific answers to my OP questions. (I hope it’s clear, vigilant moderators, that I am not asking how to cheat, but how to avoid cheating.)

4

First, Trinopus is mostly correct. If someone owns the copyright, they own the copyright and can do or not do or prevent someone else from doing whatever they like.

Beyond that, you get into gray areas which the courts have not always been clear and consistent on.

You can copyright expression and characters, but not plot and ideas. How far one can go in imitation is difficult to measure. Generally speaking, however, you cannot write fan fiction without the permission of the copyright owner. A big complicating factor is that characters (as well as names, phrases, icons, logos, etc.) can be trademarked, as in the Star Trek universe. Trademark law is far tougher and more specific than copyright law. Unlike in copyright law, you can lose trademark ownership by not pursuing violators, which is why you so often hear about big corporations going after fan sites. They must do so or else lose the right to go after major violators later on.

You should check out the FAQs on this page, which may help your understanding.

Parody is yet another issue. Parodies have almost complete freedom, but you can’t just say that anything is a parody. They must meet certain criteria laid down by previous court decisions.

The short answer to your overall question is that you didn’t create these worlds. The authors did. You don’t have the right to use them for your own benefit. The owners may not want the world available to others. That is their right. They may want it untouched because they have plans for it in the future. That is also their right. They may not like what you do with it. Again, they have the right to say no. That is one reason for copyright law. It gives owners some protection. That the Internet makes it easier to trespass on these rights doesn’t make it less of an offense.

5

XAPNO, thanks for the cite, which did answer most of my remaining questions.

One thing remains somewhat unclear in my mind, though it may be that I just don’t want to face the truth… It has to do with the inherent enforcibility or unenforcibility of copyright regulations in specific situations.

Now legal sanctions against something like bank robbery obviously apply–and are vigorously applied–despite the fact that sometimes they cannot be enforced…ie, the guy gets away with it and is never caught.

But “bank robbery” is not only a serious crime, but ALSO is generally enforcible by nature.

But whether or not one regards copyright violation as “serious,” some kinds and cases of violation are inherently difficult to detect, or indeed may be quite undetectible. I can xerographically copy some old Woody Woodpecker comic book and pass said copies out to all 3 members of the local WW Fan Club. This is a violation of copyright. But it’s hard to imagine how the copyright owner would go about detecting it. Any enforcement in cases of that type would have to be capricious.

My point is not that “getting away with it” makes it all right, but rather… Isn’t there some sort of limit (perhaps from case law rather than statute) on the extent to which private and personal use (extending to one’s family members, immediate friends, members of a small club) is actionable? The “Chilling Effect” site mentions the right of the owner of a work (ie, of a book) to lend or sell it, and I know the courts have allowed such things as personal videotaping, audiotaping of music, etc., even when the products are circulated in some very limited way (though not sold). Is there something similar with regard to “FanFic?” Here the form of violation is creation of a derivative work. It doesn’t seem very…reasonable…for the courts to allow Disney or Simon & Schuster to go after Aunt Minnie for giving her nephew her own typewritten story “Donald Duck Meets Nancy Drew” (which they happened to find out about after said nephew snitched in a moment of anger).

So: is there any such limit on actionability? Have courts ever addressed that issue?

6

Well, you know most writers don’t have all that much money that they can sink it into major court battles. They usually rely on the moral suasion argument: I know and appreciate that you’re a fan of mine, but if you do respect me then respect my wishes that I don’t want my work copied in this manner.

And private and personal use is not actionable. Creating fanzines, either print or electronic, constitutes a different scale of infringement, however.

Court battles are almost always the province of major corporations who are protecting trademark rights rather than copyrights.

I don’t offhand know of court decisions based solely on fan-fiction. I’ll try asking elsewhere.

7

As previous posters have suggested, there is no “use” requirement in order to maintain copyright. Trademarks are retained via use.

Nipick: The “Madeleine” stories were written by Ludwig Bemmelmans and concerned a little girl who lived in an old house in Paris which was run as a Catholic school for girls. The little girl who lived in a hotel–the Plaza in New York–was Eloise, and her stories were written by Kay Thompson. Thompson costarred with Fred Astaire and Audrey Hepburn in the film Funny Face.

As a general rule, courts give greater latitude to artists in copying an established work when the purpose is parody. The question of how close an imitation is considered too close otherwise is always a touchy subject, and is often a difficult one for courts to decide.

In recent years there have even been cases in which it has been held that infringement occured when a painter used an existing image such as a photograph as a model. This is kind of spooky, as an extraordinary lot of paintings are borrowed from existing images. This is not new; in the 18th Century the Neoclassical painters–Ingres, David, etc.–based their movement on copying the poses and other details of art from classical Rome and Greece.
These days it is not uncommon for good looking women on paperback book covers, billboards, etc., to bear a striking resemblence to models in back issues of Penthouse and Playboy.

The degree of originality an artist shows is always a factor to be considered. For years the publishers of Superman tried to make out that they pretty much owned the rights to the whole idea of superheroes. Immediately after Superman first made a hit in comic books, an accountant for National (Superman’s publisher) named Victor Fox started his own comic book company and hired a then-teenaged Will Eisner to create a Superman imitation. The result was a character named Wonderman. Threats from National’s lawyers were enough to insure that Wonderman’s adventures were limited to one issue.

While courts were able to find without difficulty that National’s claim to the idea of super powers genrally was too sweeping, there was a lengthy court battle (or series of battles) between National and a rival publisher, Fawcett, over Fawcett’s character Captain Marvel. Like Superman, Captain Marvel could leap tall buildings in a single bound, and eventually learned that he could fly. Like Superman, he could bend steel bars in his bare hands, and he fought crime in a tight suit with a cape.

A court eventually held that Captain Marvel was sufficiently original to stand on his own and not be considered an infringement of copyright. It was observed that while Superman was rocketed to Earth as an infant from the dying planet Krypton, Captain Marvel was little boy who gained his powers by reciting a magic word (Shazam!). It was also mentioned, in passing, that though Wonderman’s status was no longer at issue, the only real difference between him and Superman was that Wonderman wore red while Superman wore blue.

8

Just had to quickly chime in here. Parody has some protection in U.S. provisions falling under the fair use provision as “criticism”.

In the U.K. and Australia, parody is not a defense for infringement, and in Canada it isn’t really either. In these countries it would have to stand up to thresholds of substantiability, originality, and “level of offensiveness (that may affect the market value of the original work).”

9

Calm down. You can’t copyright plots or titles or character names (you can trademark titles, but that’s another issue).

The copyright holder has the right to control all derivative works – works based on the original. Thus, if you want to write THE SHINING 2, it either needs to be completely different from King’s novel (though you’d probably be hit with a suit forcing you to rename it) or you have Steve’s written permission.

As with any infringement, the copyright holder has to sue you; it’s a civil infringement, not a criminal one.

As for writers going to court over infringement – they don’t need a lot of money. If you have infringed on a work whose copyright is registered you pay all the costs of the suit – yours, and the authors. Since this would probably bankrupt you, it’s in your interest to settle. And most infringers do settle.

And it’s not just big corporations that go after infringers; you just don’t hear about the other cases. Suzy McKee Charnas, for instance, sucessfully went after a couple of fans who used her characters in a fanzine without permission. I myself shut down a fanzine for pirating copyrighted material (not just mine, but that of 50+ other writers).

Nope – not legally. However, since, as you pointed out, it’s not detectable, the author isn’t going to go after every case, but rather just the high-profile ones.

If you have a book and sell it, you are not making a copy. Copyright only involves itself in making a copy.

As far as videotaping, the courts only allowed it for personal use. You can play the tape, but swapping it is technically a violation.

Nope. Fanfic is a derivative work. It’s up to the copyright holder to determine whether they want to go after someone. In the example you gave, it’s unlikely anyone would bother with a lawsuit because it isn’t worth the effort (and would be very bad PR with little to gain). But, legally, Disney could.

Is that correct? IIRC, Fawcett stopped publishing the comic before a decision was reached and dropped the suit.

10

Thanks, all.

Guess I’ll have to accept that, for all the sheer democratic and artistic wonderfulness FanFic would seem to offer, doing it–even in a very limitedly-circulated noncommercial way–can bring out the posse.

Some say, “Why not just contact the copyright holder and get permission?” --Same reason you don’t ask Mom beforehand whether you can ski the big one. Do it without permission and you’re being sneaky, but They Can’t Take That Away From you–cause you’ve already done it. Ask for permission and you run the risk of being denied, which means either (a) you don’t get to do it, or (b) if you do it, you’re not just sneaky, but downright deliberately disobedient and defiant–a worse crime.

If you really want to do something, think it’s OK in an absolute moral sense, and calculate that the odds on getting away with it are pretty good–you won’t ask permission unless you’re certain it will be granted. That, at least, is what Eddie Haskell advises.

I’d better stop, lest I wind up in Great Debates… or Embittered Creative Guy’s Anti-Capitalist board. (But thanks again for the info!)

11

Let me point out that copyright law protects the individual creative artist as well as the big corporation – and the individual is the one who really benefits.

12

And I have to add that if you are truly a Creative Guy you write about your own characters and worlds, not somebody else’s.

Scott, you haven’t been stopped: you’ve been freed.

13

See y’all over in Great Debates!

14

No, if you are a truly original writer, you are original enough to compete with the countless fanfiction with an original enough story with those characters of high enough quality to make the fanfiction popular. Also, if you have good writing skill, you shouldn’t take the easy way out, make your own characters, and have them be in character all the time by virtue of the fact that they only appear there, and you can incorporate things into them to make that in character, unlike the vast challenge and amount of research you must do for a good fanfic. Nothing sickens me more then arrogant people assuming original fiction is superior with no familiarity with the subject. And besides, it’s such a PR disaster in this day and age that going after fanfic writers who don’t profit from their work that it is extremely rare, and gets you a great degree of scorn.

15

You seem to be contradicting yourself, birdboy.

Writing in another universe is using a crutch. Maybe you can write original fiction, but you won’t know that unless you actually do it. It’s so much easier to stick with existing characters. The times I worked in another universe (a proposal to Pocket for a ST:TNG novel, and a story for “The Ultimate Spider-Man”), it was much easier to do the characterization. I didn’t have to worry about creating a bombastic cheating newspaper editor; I just wrote J. Jonah Jamison. It was fun, but it wasn’t anywhere near the difficulty of creating memorable characters on their own.

As far as a PR disaster – if an author runs the risk of hurting their livelihood, you bet they’ll go after you for infringement, whether you’re profiting by it or not.

You can have fun with fan fiction, but real writers write their own stories. Even those who successfuly started with fan fiction and wrote professionally moved on to other things. If you only do fan fiction, you’re only half a writer.

16

This discussion is fascinating, but one thing bugs me… what the heck does ‘dog in manger’ mean? Or ‘hold harmless’ for that matter?

17

“dog in manger” comes from the so-called Gospel of St. Thomas:

Scott uses it in this sense: the people who control the old material won’t use it and won’t let him use it either. It’s a false comparison, since the dog does not own the oxen - he’s an interloper - but it appears all over the place in anti-copyright discusions.

“hold harmless” just means, generously, that he will not consider us responsible for any lawsuit that reduces him to penury as the result of any actions he takes because of our advice. I assume it’s a joke.

And birdboy, you’re wrong. Well, you’re wrong about everything, but just sticking to the facts, I asked an intellectual property lawyer about fan-fiction court cases and he said it would take him an hour just to summarize them. They happen. You will lose. And rightly so. You don’t have a leg to stand on.

18

Okay, thanks! Re: ‘dog in manger’: I guess I just got whooshed by another Biblical reference (no surprise, that, since I’m not a Christian…) I’d guessed that that was what ‘hold harmless’ meant; nice to have it confirmed.