Fan Fiction, Copyright Enforcement, and all that

Great Debates
1

In GQ I asked questions about the applicability and enforcement of US copyright law with regard to fan-written fiction (as when a Star Wars or Harry Potter fan wants to write a story continuing some plot element or theme; and generally use a “copyrighted world” as the backdrop for an original story). I focused on cases in which the copyright is on something apparently “dead,” with no plans for further use; and in which the resultant FanFic is circulated in only a very limited way, and (needless to add) not sold.

My questions were amply answered. But some further points were raised that I would like to explore–realizing that this general topic has often been addressed here.

from RealityChuck: “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.”

from Exapno Mapcase: “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.”

My comments, for further debate here:

–Yes, RealityC, the individual creative artist is covered, and conceivably may be “the one who really benefits”–especially given that individuals are less likely to have already realized huge incomes from their works, and thus such benefit as they receive will probably be of more significance to their life than is the case with Msrs. Simon & Schuster or the Brothers Warner. If copyright law were restricted to such individuals for, say, natural life plus ten years or so–then even I would recognize my bellyaching as just self-interested whining. But it isn’t. I think reasonable persons might have a degree of skepticism toward the unrestricted applicability of copyright to “works for hire” or instances in which the rights are purchased. It was not God, after all, who thought up the odd idea that a business corporation is a “person.” It was the US legal code.

Exapno, I am not in the least bit “freed” by being denied, by force of law and threat of punishment, access to such materials as I might care to use in making such work as I might care to make. Yes, stumbling blocks may make for better character, great art may come from challenge, and genuine originality deserves honor. But not all artistic genius is the genius of origination: adaptation, extrapolation, and transformation can also be the stuff of genius. (It would be a sterile exercize indeed to try to identify which elements in Shakespeare–or Disney–are genuinely original, as opposed to “mere” transformations of pre-existent materials.) Furthermore–shall we limit artistic/creative expression to “genius”? Copycatting mediocrities like myself don’t get a place to start?

Then there’s this. Speed limits are set for the good of all. They benefit society. Those who break them sometimes have a horrific effect on others. Besides which, breaking the law is, in and of itself, a bad thing. And who needs to go so fast anyway?

So–as a society we might devote a great deal more resources to eliminating this form of lawbreaking. We might put speed-limiters on cars. We might have radar-and-camera systems set up every hundred feet on our highways, dinging each and every driver who exceeds the limit BY ANY AMOUNT WHATEVER. We could have touring players who go to elementary schools showing what happens to speed-limit scofflaws, and decry with great force anyone who suggests that there is nothing particularly sacred about 55 or 65 or whatever. We could send reputed 56-mph-ers threatening letters, mention the impact on future college admissions, maybe confiscate their vehicles–even if actually owned by someone else. We could do it, and it would be moral, because EVERYBODY KNOWS THAT THE SPEED LIMIT IS A REAL LAW and YOU SHOULDN’T BREAK THE LAW.

Or we could realize that “law” can be admonitory and regulative, not just prohibitive. We could realize that the most rational use of the law, in a society valuing individual freedom of choice and action, is–sometimes–to suppress particularly egregious and widespread violation, not the occasional minor infraction (and “minor” is not restricted to that which is literally undetectable).

In my opinion, so-called “copyright violation” (unlike murder and bank robbery) can sometimes not be worth the damage that vigorous enforcement does to the tone of a society that wishes to give more than the absolute minimum of leeway to the individual. Some laws are of value only to the extent that they are enforced rarely, mildly, and with judicious restraint.

(None of which is to suggest any lack of clarity as to the policies of the SDMB regarding violation of copyright.)

OK–ready!

2

As a film and video student, some of the most interesting work being done out there is on the history, methods and implications of fan fiction. Fan fiction is not just cheating. It is a phenomenea that we have never seen before, and that is very complicated and interesting. For example, did you know that most of the writers of fan stories involveing homosexual relationships are women? There is a lot to learn about fan fiction, and this all points to it being an important- and legitimate- form of expression

3

I think it is important to note that in this case it is not the ‘State’ that enforces this but the individual copyright holder. It is up to them to decide how zealous they want to be in the protection of their copyright. Some you will find freakishly committed stamping out any whiff of infringement and others will be more tolerant. In the end it is usually a business calulation. Star Wars or Star Trek fan-fic seems to promote a healthy ‘underground’ for these properties so it is tolerated as long no one makes money on it (i.e. sells it without permission from the copyright holder). This fan-fic supports a base for the property and ultimately nets the property holder more money than if they stopped it. On the other hand I think some copyrights, Disney properties come to mind for some reason, are religiously guarded. They may not be able to stamp out everything in the age of the Internet but I’ve read some stories of websites withdrawing certain pages after nasty-grams from a pissed copyright holder that twigged to them within weeks of posting their material. No cites…just anecdotal for now but there for what it is worth.

A quick question for the legal eagles…do copyrights have to be defended across the board or do you lose some protection if you pick and choose your fights? For example (made up), say that Paramount allows Star Trek fan-fic to proliferate without stopping it but for one reason or another a particular piece pisses them off and they seek to stop just that one piece. Is there any defense for the infirnger to say that Paramount allows this behavior, they are no different and if the copyright holder wants to enforce their copyright against the one piece they must enforce it against ALL pieces of fan-fic?

4

even sven-are you talking about slash?

I loves me some slash! Yummy!

5

Well, from an intellectual property attorney’s perspective, “derivative rights” are an important right for copyright holders. It allows you to control, not only your work, but the evolution of the work. This is pretty fundamental. If you were to make a list of ways to ensure artists get paid for their creativity, derivative rights would probably be there somewhere.

Also, there is always fair use. Wind Done Gone taught reaffirmed that parodies are okay.

6

And there is some fan fiction done with certain characters mainly because the ff writers feel challenged by a good author and originator of those characters. What they write will have to be up to the challenge the original writers presented. The original authors may even encourage such no-money works to proliferate.

Disney Corp on the other hand are hypocrites, taking free domain works, add a few adaptations and declaring that their very derivative works must be defended at all costs.

7

Well, actually it was mostly the Court of King’s Bench presided over by Justice Mansfield in the late 1700’s, but whatever. :wink:

The problem with your reasoning is this – given a non-socialist economic system, a necessary ingredient for the production of any innovative work is capital. Shakespeare wouldn’t have written those plays if it didn’t keep his family fed; Jerry Bruckheimer neither. Creative work simply would not be created with anything like its actual prolifity if the corporations – who have the money to support artists while they write – could not be assured the control of the property that results. If companies could not buy rights, they would not be interested in funding the creation of new matter. If so, then authors would be required to create in the interstices while working at Payless to keep body and soul together – not to mention getting their own distribution and, in any collaborative medium such as film, finding their own collaborators. Some would do this, I wager – and if you’re one of them, there’s nothing stopping you – but most would not. So the very materials that you propse to write fanfic about might very well not exist but for the fact that some corporation was willing to subsidize their creation. And that happened only because that corporation knew it would get some percentage of the revenue generated.

–Cliffy

8

CLIFFY,

I do understand that argument, I really do. But I think you’re overlooking my use of the word “unrestricted.” The question is not whether corporations (or other business entities, or even personal “funds-providers”) should be able to derive some return on their investment, but whether they should have an absolute right to secure that return by going after FanFic geeks like myself hammer-and-tongs.

Is there a premiss that capitalism is only worth having if it is utterly unrestricted? (…which would imply that our present system is not worth having.)

Going beyond your actual post (not trying to put words in your mouth)–the supposed “right to make as much profit as you can” seems to me a most peculiar animal, in the logical sense. It states virtually nothing at all–whatever profit you happen to realize ends up being construed as “all you can make.” (PATRON: “I thought this was an all-you-can-eat salad bar.” OWNER: “Yep. And that’s all you can eat!”) The real hidden presumption is not a right to pursue profit per se, but a seeming right to become wealthy (ie, BIG profits) by using society’s police/legal resources to suppress potential competitors.

Is ALL competition “cutthroat” competition? I’m sure it feels that way, if you’re the one being competed against.

Is there anything like hard evidence that, say, Paramount wouldn’t take a risk on something like the original Star Trek TV show if they knew they would only have, say, 10 years to exploit it? (After all, that pilot was made, and the show greenlighted, with little real hope of exploitation beyond a few years of network broadcast, a few years of syndication, and then the oblivion of MANNIX, RAWHIDE, ROUTE 66 et al.)

It strikes me as up-the-butt smoke-blowing, the claims one reads that ART WILL DIE unless Disney stockholders have an ironclad guarantee of that extra .01% on their returns.

Then there’s the image of the poor artist reduced to interstitial penury at Payless because Simon and Schuster won’t buy his services as (uncredited) writer on “Nancy Drew” unless they get to hold on to all rights and all profits thereby derived, from now until, say, the terraforming of Jupiter. So (a) the fact that the possibility of profits won’t extend on unto eternity means that the possibility of profit tomorrow and next year counts for nothing? And also (b) aren’t the vast, vast majority of us quasi-creative mediocrities–who have a talent at developing the worlds of others, but no evident talent (so far) at creating worlds of our own–EVEN NOW doomed to be paid less at Payless, in this current copyright-protected system?

Why exactly should we support a setup in which the chances of any one of us hitting even a subsistence jackpot is less than 1 in 1000? I’d sure prefer a 50% chance of, say, $30K per annum, than a 0.1% chance of $500k p.a. Seems to me the former would “motivate more creative production,” wouldn’t it?

And… I’d like to note that whether creative competition is suppressed by the criminal courts or by civil action, it’s still, ultimately, “the law” that has you by the nads.

(The irony is that most of us don’t even want to “compete” in the marketplace with our inspirers, just to enjoy ourselves and test ourselves by producing variations on a theme.)

9

Can’t a strong arguement go that most “fanfic” is really a form of Parody? And is not Parody legal, even if the characters, etc in it are clearly the copyrighted ones?

10

How’s about we make the following change to the copyright laws:

Anyone is allowed to make a work derivative of copyrighted works, without having to get the copyright holder’s permission, provided that:

(A) The work is not distributed for sale;
(B) The work comes with a notice saying that it is a derivative work, and clearly identifying the copyrighted work that it is a derivative of; and
© All works that are in turn derivative of this new work shall be considered a derivative of the original copyrighted work.

Would that work? I mean, it seems to me that fanfiction increases the interest in the original work, and kinda operates as a kind of free advertising, so why not legalize it?

11

DrDeth, I believe the various court cases protecting parody establish some “tests” as to what makes a parody. Much of the fanfic I come across would not be parody, but rather “derivative” fiction written dead seriously as a character study, side-story, alternative plotline, or vanity rewrite.

tracer, some of the objections copyrightholders would have with that proposal would be the risk of “brand dilution” and of loss of control over the canon of the work. To allow free flow of widespread derivatives as long as credited and nonprofit would seem too close to saying the characters or setting DO belong to the fans, and what the publisher or the studio puts out is just the “commercial” version. Some creators (or rights-holders) may indeed be quite adamant about their “moral rights” (that is an actual term in intellectual property, to stress that it’s not just about money) to be the ony ones to decide how, when and where the public shall see their work, and what happens next, for instance to declare Character X dead for good and so what if the fans don’t like it. Me, I think copyrights are already as long as they should ever get.

As to the “free advertising” angle… well… that depends. Disney obviously does not need any free advertising, and does not WANT it, thank you very much – they crack down hard on any least copyright/trademark infringement, however innocuous.

12

So, if I were to write fanfiction featuring Mickey and Minnie Mouse, I wouldWE ARE THE DISNEY CORPORATION. YOU WILL CEASE AND DECIST USING THE TRADEMARKED AND COPYRIGHTED NAMES OF OUR CHARACTERS. RESISTANCE IS FUTILE.

… um, well, I guess that settles that question!

13

TRACER–

Something along the lines you suggest seems well worth trying.

“Moral rights”? The issue I have with that notion is that, as embedded in law, no distinction is made between the moral rights of the actual creator of a “world,” and the rights of someone who happens to be the most recent person to have purchased “it”.

I’m not enthusiastic about using the word “moral” (which implies a good deal to many people, even today) in application to the sorts of cases that motivated my original thread–“dog-in-manger” copyright holders who “support” the rights of artists by suppressing their works for some indefinite span of time–maybe forever.

To be clear, I support giving the actual creator(s) of a given work the exclusive right to control the terms of its public release for life or, say, 10 years, whichever is longer. No questions asked.

But in the case of works-for-hire or “purchased” rights, or other instances in which the rights are transferred away from the originator(s) of the work, I believe the right of control should be much more limited. And in particular: (1) the work cannot be simply suppressed or destroyed–the public must be allowed some degree of access to it (though not for free; that’s not the point), (2) for putative copyright violations to be actionable, the rights-holder must show (by “clear and convincing evidence”) actual or sufficiently-probable (not just “possible”) damage to the value of their work by the particular individual cited (not by a class of independently-acting individuals); and (3) there shall be no “punitive” damages unless it can be shown that the copyright-violator acted with a deliberate and willfull intent to do harm to the copyright-holder (ie, “I hate the Roddenberry family, so I’m gonna make Star Trek worthless”).

Note that the preceding paragraph applies only to a certain class of rights-holder.

In my state of California we are willing to impair the “rights” of the owners of coastal property in order to protect and preserve a general societal “good,” the beauty and environmental benefit of the coastline and adjacent space. I regard artistic and creative works as, in roughly the same sense, a general societal good in which the public has a legitimate stake. They cannot be locked away, destroyed, or withheld from limited and reasonable public access and use (and not just for “parody”!).

FanFicizing–a nonabsolute but important right.

14

Actually, the only time I’ve ever heard of someone REALLY going after fan fiction authors was Anne Rice. And she has other issues, anyways.

15

Yeah – wasn’t Anne Rice’s birth name David or something? And not because she was transsexual?

16

I don’t really have much of a problem with fan fiction, when the situation is:

  1. The original copyright holders (Paramount, etc.) don’t object to it.

  2. The fan writers are not making a profit.

But if the copyright holders object, all bets are off. Better to keep the work underground—just circulate it amongst your friends. And to expect to make serious profits? Forget about it.

Now, in the spirit of full disclosure, I must confess that as a kid I used to sell fan art. Like, a Mr. Spock or Luke Skywalker portrait for $30. I sold these portraits at science fiction conventions in the Los Angeles area. I know for a fact that many of the original copyright holders saw all the fan art in the art show, and they never minded. (Very often the filmmakers, writers and actors of these movies and TV shows are guest speakers at local L.A. conventions.) But had I made prints of my portraits and sold them, perhaps I’d have been skating on thin ice. But I never did that.

I know of several former fan writers who have branched out to “regular” fiction. Some adapted fan fiction to make it a mainstream fiction, and are successful. (Melanie Rawn is the first person who comes to mind. She wrote “Star Wars” and “Starsky and Hutch” fanfic before branching out into her big thick fantasy novels.) It’s done all the time. Fan fiction can be a fun diversion and a great way to belong to a creative and nurturing community. I think a lot of these former fan writers owe a lot to their fan writing roots.

“Maybe forever” is bad, but letting the person who created the work keep rights to their own work at least through their lifetime is not unreasonable (in my opinion). I’d advise you to stop whining, and do what people like Melanie Rawn (and many others) have done. Enjoy your fan fic, and then when you’re ready to do the “big time”, adapt your story so it is no longer fan fic. Or, approach the copyright holders and see if they’ll publish your story as a “tie-in” book.

10 years is pathetically little. You only want this limit to be so short because you want to use someone else’s work. If the shoe were on the other foot (if you had created something that everyone else was itching to profit from) I suspect you’d be singing another tune.

I just don’t believe that you are not “talented” enough to write your own stories, with your own original characters. Your story can still be “inspired” by the original show (at least in your head), as long as it’s not suspiciously recognizable as the original show and characters.

17

I can’t see an issue with fan fiction, as long as it’s not using someone else’s trademarked/copyright characters and ideas for profit.

Fan fiction is a legitimate form of creative expression. It does not dis-benefit the original authors/idea owners per se.

18

I don’t ever post in GD, so it has taken me a while to learn that this thread existed. I haven’t been deliberately ignoring it.

The problem with Scott’s argument is that it is really a number of different arguments rolled into one and presented as a single issue.

Taking it apart:

a) the validity of the current copyright laws

b) the validity of the moral rights of the orignal creator vs. those of employers or purchasers of those rights

c) the appeal to individuals of widely disseminating their creations rather than doing the work for their own pleasure

d) the distinction between trademarking and copyrighting

e) the larger question of what happens when a law becomes effectively uninforceable

Each of these probably requires a thread of its own to discuss, and certainly they have been endlessly discussed wherever writers and fans find themselves together. It is also true that the Internet has permanently changed the nature of the discussion. Copyright is going through a time of wrenching change and millions of words and dollars (and maybe tens of years) from now, it will be changed in some fundamental way.

Let me limit the whole sprawling mess to just what I think **Scott’s ** issue and why I object. He’s not looking to change copyright so that everybody benefits. He’s not even looking to change copyright so that the original individual creators benefit. He’s looking to change copyright so that he benefits. That gets him no points with me.

And istara, it is simply not true in the real world that fan-fiction “does not dis-benefit the original authors/idea owners per se.” Look at Marion Zimmer Bradley for example.

That larger Fan Fiction Policy page at Writers University is a bit out of date, but it gives an excellent summary of who allows and who disallows fan-fiction and more importantly, why.

Take a look at what writers have to deal with first before you comment on their stands. Interestingly, the parallel to the reasons why the mods here have such strict standards is frightening. There are a few who spoil the world for everybody.

19

I feel like I should always start off by conceding that I may be wrong. I have been so before. I will be so again. I may be wrong now–maybe.

But I presume the idea is to show wherein and whereof I am wrong, not to (mis?)-characterize my motives. EXAPNO, don’t you think our two or three exchanges on this subject constitute a rather restricted arena wherein to determine that I’m “…looking to change copyright so that he [ie, me] benefits.” ? My stated arguments have been rather broader than that. I’m disappointed that you choose not to use your evident familiarity with these matters to address the points I have raised. Especially since your extracting from my posts a number of distinct topics is entirely acute and useful.

It is, indeed, a big sprawling issue, which time and tide will not serve to dismiss.

“He’s not looking to change copyright so that everybody benefits.” OK, but I seem to think I am–unless you mean that, because one class of copyright-holders would see a reduction in their privileges, it’s not a benefit to “everybody.” I’ll grant you that. But of course I’m claiming a general benefit to society, which even those persons, and their descendents, participate in.

“He’s not even looking to change copyright so that the original individual creators benefit.” This statement seems to me just false. If you’ll look at my recent post, I propose giving the originators even greater control, in that I limit the rights of employers over works-for-hire, while giving the actual creator(s) near-absolute authority for the rest of their lives.

YOSEMITEBABE-- “…‘Maybe forever’ is bad, but letting the person who created the work keep rights to their own work at least through their lifetime is not unreasonable (in my opinion). I’d advise you to stop whining… 10 years is pathetically little. You only want this limit to be so short because you want to use someone else’s work. If the shoe were on the other foot (if you had created something that everyone else was itching to profit from) I suspect you’d be singing another tune. I just don’t believe that you are not ‘talented’ enough to write your own stories, with your own original characters…”

Again with the ad-hominem stuff.

I guess you can “suspect” what you like, but why not get over the indemonstrable issue of my possible motives and go directly to the merit of my complaints and suggestions?

Why, for example, do you regard 10 years as pathetically short? Yes, it’s MUCH more restricted than the present rule. But of course I’m arguing against the attitude and premisses behind this present rule. If I could make money for the rest of my friggin’ life AND grant my legatees years of (unearned) income besides, that seems pretty good to me. So just how much of “forever” should be protected before it’s “bad”?

Those who read my preceding GQ post know what this is about. I want to be able to write some new chapters in the lives of some long out-of-print boys-book heroes of mine. I’ve been told rather clearly that the present corporate inheritors of the copyrights (a) have no plans whatsoever to make use of those characters, and (b) are hypervigilant protectors thereof. That is in no way an unusual situation, apparently. I think it’s wrong, and harmful both to individuals, and to our society.

That’s my stake in it. Please do me the honor of not confusing me with the napsterites. I’m not looking to acquire and distribute a free copy of someone’s story; I just want to reanimate the world of a long-dead author, a world in which I once lived with some pleasure, a world now in darkness.

Such aspirations are not without value–are they?

20

Well, yeah, I HAVE heard that authors for say, Star Wars, are by contract, not to read fan fiction, for fear of being accused of plagarism.

However, even though Lucas supposedly hates the racier SW fan fic that’s floating around, I have to say, there’s a LOT of it. (I should know-I write quite a bit of it myself!)

And theforce.net, which is pretty much an “official” site, in a way, has an entire forum devoted to fan fiction.