Useful things to do with copyright
Oct. 16th, 2006 12:23 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
branchandrootHaving watched the latest round of wrangling over fic and copyright, I am starting to think that it's time to stop slanging each other over who better understands what copyright law presently is.
Because copyright law is presently a morass of contradictory statements and precedents that don't gel into any even vaguely coherent policy, aside, perhaps, from "the one with the most money wins".
What we should do instead is think, seriously, about what we do and whether or not we think it is truly right or wrong.
If we think that what we do is wrong, we should stop. Stop ficcing. Stop vidding. Stop arting. If it's wrong.
But if we think it's right, that what we do causes no harm to anyone, either spiritual or monetary, then we should damn well act like it. If what we do is right, then we should, indeed, step forward and talk to the press and insist on legal protection against wrongful persecution--for example, having all your content trashed off the web because someone's lawyers sent a cease and desist notice to your service provider.
What we should be arguing over, and as visibly as possible, is the way in which what we do is just as valid a derivative art form as parody, and that copyright law as it is currently applied to us is abusive and incorrect.
Theoretically, copyright can only protect specific expressions. Ideas cannot be copyrighted. Yet. Every what-if, every missing-scene, every divergent-future is a new expression, and there is no good reason to quash them. Authorial emotional possessiveness does not count as a good reason, and, yes, that's a two-way street, and we need to deal with that fact too. Something that's published is placed into the common cultural dialogue, and you can't have it both ways.
And, while some big authors may use copyright as if it were meant to protect their worldbuilding efforts, they're ultimately shooting themselves in the foot. What copyright is really about, practically, is money, and as soon as they don't have big money behind them, they're SOL just like the rest of us. If copyright is "supposed" to protect worldbuilding, then why could I go out and publish a book about Tom Bottle, who has green eyes and black hair and goes to a school for magic and is destined to save the world and has these two really good friends, and a few arch-enemies, and Rowling would have a hell of an uphill battle to do anything about it? Consider Vanilla Ice versus Queen and David Bowie. Consider the Mitchell estate versus Randall and The Wind Done Gone. In neither case was there any kind of clear or definitive outcome, and the material that got taken to court (or, possibly, threatened with such) is still out there being published and paid for. ... well, probably not in Ice's case, but if the song had more staying power, it could be. The courts in this country don't care about artistic integrity or any of that, or else the outcomes of the conflics I just mentioned wouldn't have been such a bizarre mish-mash.
The point is, history and the balance of precedent are both on our side, not only when we claim fic is a valid artform, but also if we wish to claim fic is a valid commercial product. The latter will be a harder battle, to be sure. But I think it's worth fighting.
Because the current trend of limiting creativity to "valid" outlets, who have paid cash on the barrel for the privilege, of patenting and trademarking and copyrighting absolutely everything one can get one's (corporate) hands on, is going in a very bad direction. I really don't want to spend my writing time looking over my shoulder, wondering when they're going to come for me, and whether Disney has managed to convince a court that children's stories yet unwritten belong to them. And there's no reason any of us should have to.
Copyright, still, only protects particular expressions. We are in the right. I really think it's time we put some work into staying there, and making sure this current, insane trend toward "protecting" ideas is pushed back.
Because copyright law is presently a morass of contradictory statements and precedents that don't gel into any even vaguely coherent policy, aside, perhaps, from "the one with the most money wins".
What we should do instead is think, seriously, about what we do and whether or not we think it is truly right or wrong.
If we think that what we do is wrong, we should stop. Stop ficcing. Stop vidding. Stop arting. If it's wrong.
But if we think it's right, that what we do causes no harm to anyone, either spiritual or monetary, then we should damn well act like it. If what we do is right, then we should, indeed, step forward and talk to the press and insist on legal protection against wrongful persecution--for example, having all your content trashed off the web because someone's lawyers sent a cease and desist notice to your service provider.
What we should be arguing over, and as visibly as possible, is the way in which what we do is just as valid a derivative art form as parody, and that copyright law as it is currently applied to us is abusive and incorrect.
Theoretically, copyright can only protect specific expressions. Ideas cannot be copyrighted. Yet. Every what-if, every missing-scene, every divergent-future is a new expression, and there is no good reason to quash them. Authorial emotional possessiveness does not count as a good reason, and, yes, that's a two-way street, and we need to deal with that fact too. Something that's published is placed into the common cultural dialogue, and you can't have it both ways.
And, while some big authors may use copyright as if it were meant to protect their worldbuilding efforts, they're ultimately shooting themselves in the foot. What copyright is really about, practically, is money, and as soon as they don't have big money behind them, they're SOL just like the rest of us. If copyright is "supposed" to protect worldbuilding, then why could I go out and publish a book about Tom Bottle, who has green eyes and black hair and goes to a school for magic and is destined to save the world and has these two really good friends, and a few arch-enemies, and Rowling would have a hell of an uphill battle to do anything about it? Consider Vanilla Ice versus Queen and David Bowie. Consider the Mitchell estate versus Randall and The Wind Done Gone. In neither case was there any kind of clear or definitive outcome, and the material that got taken to court (or, possibly, threatened with such) is still out there being published and paid for. ... well, probably not in Ice's case, but if the song had more staying power, it could be. The courts in this country don't care about artistic integrity or any of that, or else the outcomes of the conflics I just mentioned wouldn't have been such a bizarre mish-mash.
The point is, history and the balance of precedent are both on our side, not only when we claim fic is a valid artform, but also if we wish to claim fic is a valid commercial product. The latter will be a harder battle, to be sure. But I think it's worth fighting.
Because the current trend of limiting creativity to "valid" outlets, who have paid cash on the barrel for the privilege, of patenting and trademarking and copyrighting absolutely everything one can get one's (corporate) hands on, is going in a very bad direction. I really don't want to spend my writing time looking over my shoulder, wondering when they're going to come for me, and whether Disney has managed to convince a court that children's stories yet unwritten belong to them. And there's no reason any of us should have to.
Copyright, still, only protects particular expressions. We are in the right. I really think it's time we put some work into staying there, and making sure this current, insane trend toward "protecting" ideas is pushed back.
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no subject
Date: 2006-10-16 05:48 pm (UTC)There are also ways that allowing fan-fic can come back to bite an author in the ass (http://www.fanworks.org/writersresource/?tool=fanpolicy&action=define&authorid=53).
I'm torn on this one. On the one hand, the novel sitting on my editor's desk uses Sleeping Beauty, Cinderella, and Snow White as protagonists, so I'm hardly in a position to argue against the appropriation of other work. On the other hand, you have Lori Jareo and her Star Wars novel...sigh. Okay, that's an extreme example, I know.
It's way too egotistical for me to assume people will be writing fanfic based on my goblin books. But when I do think about it, the idea makes me uncomfortable. It's flattering, and I'm not as knee-jerk about it as some authors I've talked to, but if it was brought to my attention, I think there's a good chance I'd be sending a polite, "Please stop this" e-mail.
no subject
Date: 2006-10-16 06:11 pm (UTC)The interpretation of copyright law needs to be rationalized in the worst way.
And I do know what you mean about being uncomfortable. When I think about another author riffing on either my own derivative writing or original writing, I get twitchy and start gritting my teeth. But... the thing is I genuinely believe that I am ethically obligated to just keep gritting my teeth and deal with it. As long as they are not copying my text wholesale, either under my name or theirs, then... I don't believe I have any right to tell them to stop, ethically speaking. I publicized my work, deliberately and knowingly placed it out where anyone could read it and think about it and make it a part of their own corner of the cultural conversation. I believe it is wrong to try to stop them, once I have released the work into the open. That to do so only cripples our collective culture and flattens some of the richness of it. I mean, what if Bakhtin had said "no one but me can write critical theory using the concept of dialogism--unless I can't recognize that you got the idea from me". I don't think there's a significant difference between philosophy and stories, this way; it seems to me that both are generated very similarly.
Lawrence Lessing talks about this.
no subject
Date: 2006-10-16 06:37 pm (UTC)As I understand it, copyright law in the U.S. was designed to protect the financial interests of the creator. Now there's no real reason I need to be protected for 70 years after I die. (Current copyright goes for the creator's lifetime + 70, or am I misremembering?)
For me, a part of the consideration is certainly financial, as crude as that may be. I'm the only one working in my family, and the writing has begun to bring in a significant boost to the income.
Now there's an argument to be made that if other people started writing goblin fanfic, it would bring *more* readers who would buy my books, and everyone's happy. You could also argue that with all that goblin fiction, why would anyone bother paying $6.99 for mine when they could download other stuff for free? I could see it going either way. And I can even see the competitive argument, that if I want to keep making money, I have to just make sure I'm writing *better* goblin stories than anyone else.
The morality is, to me, as messy as the legalities. (Though I don't think the legal side is quite as contradictory as you say ... then again, my head hurts when I try to read it, so I could be wrong.) But anyway, take Star Wars. Do I have the right to play with my action figures? That's a form of storytelling. What about talking to my friends about what would happen in a fight between a Star Destroyer and the U.S.S. Enterprise? Again, that's storytelling. If I e-mail it to my friends? Soon we're not only telling a story in someone else's universe, but we've published it on the web to share with a few more friends. Where precisely is that line going to be drawn?
I know I'm not exactly making any clear points here ... mostly thinking out loud. Blame any incoherence on a long week with way too little sleep....
no subject
Date: 2006-10-16 06:57 pm (UTC)Life + 90, these days, I believe. Thank you Disney, you utter bastards.
Copyright law is... weird. It's all couched in conditionals. IF the work can be proven to be derivative, and IF it can be proven to compete commercially, and IF there is a "significant" degree of direct copying of "recognizable" character/world elements involved... then it can be declared infringing. But there's no kind of objective scale for what "significant" and "recognizable" mean, because, of course, those aren't especially objective or quantifiable things.
So then people turn to the body of precedent from previous cases. And, in the case of fic... there really isn't any! Every instance of a conflict I've found has been settled without actual recourse to a court, so it's kind of hard to say what /would/ happen if a case really did make it that far. We're reduced to extrapolating from cases about other media, like music, which is /totally/ not equivalent in the law of this country. The Wind Done Gone is the only text-based case I can think of, and that was a professional publication, not fic per se.
Of course, it helps that most fans would never /dream/ of contesting a C&D letter, which has led to a few things that seem to have been really nasty hoaxes being pulled between fen.
You know, I'd really like to see some reliable studies done of what happens to buying patterns, when there is a commercial source and a free source, especially when the free source is made up of derivatives. Because everyone speculates about what would happen, but no one has any hard evidence to point to, and I want some, darn it. I know that I, personally, will continue to buy Tanya Huff's own work, no matter how much fic based on her worlds is out there. On the other hand, I also know that I infintely prefer looking for Star Wars stories in fic, because I really don't like most of the authors Lucas authorizes to write the official novels. But, then, I wouldn't be buying those even if there were no fic at all, so...
Yeah. Complicated.
Hey, this thinking out loud is fun, you know?
no subject
Date: 2006-10-16 07:13 pm (UTC)Numbers on derivative works would be a lot harder, given the legalities.
And a lot of the law seems to be couched in similarly vague terms. Sexual harassment, for example, is often defined with reference to "what a reasonable person" would consider to be harassing. Great. And we're defining "reasonable" to be...?
I know there are copyright cases out there. I believe Harlan Ellison has one against some of the authorized tie-in novels that use his "Gateway" from City on the Edge of Forever. Ellison seems to be a big name in pushing to enforce copyright claims. He took on AOL a while back, too. But yeah, how many fans have the resources to actually fight a publisher in court?
no subject
Date: 2006-10-16 08:19 pm (UTC)no subject
Date: 2006-10-16 06:01 pm (UTC)no subject
Date: 2006-10-16 06:19 pm (UTC)no subject
Date: 2006-10-16 06:27 pm (UTC)TPTB have never and probably will never be able to stamp out flat-out commercial piracy, and it would be a lot harder to stamp out unauthorized derivative works. But fandom could get a lot less fun, especially for an unlucky few faced with large damage awards if they lose in court.
no subject
Date: 2006-10-16 06:41 pm (UTC)You know what I'd really like to see? A licensing arrangement like music has, in this country. So that ficcers who wanted to go commercial could apply for license and (neccessarily) be granted it, and pay a royalty out of whatever their profits are. That, I think, would /really/ put a spoke in the corporate wheels, because then the derivatives would be another source of income.
no subject
Date: 2006-10-16 08:02 pm (UTC)Pretty often, the media rights have been sold, so the person who wrote the book, screenplays, or teleplays may be delighted, livid, or anywhere in between about fanart in general and a particular work in particular--but the rights still belong to the studio, not the writer.
no subject
Date: 2006-10-16 08:16 pm (UTC)*nods* Jim mentioned the variation in what rights who has in the other thread, too. I now have a rather entertaining mental image of fans demanding disclosure of contract terms so they know who to negotiate which media rights with. *wry*
no subject
Date: 2006-10-16 09:04 pm (UTC)Music licensing is almost entirely controlled by a few rights management organizations and I'm sure that's what would happen if we really were buying licenses.
no subject
Date: 2006-10-16 06:40 pm (UTC)I've heard at least a few authors say that, in essence, if they learned about fanfic using their work, they would feel obligated to write a C&D ... so if you're going to write it, please don't tell them.
no subject
Date: 2006-10-16 06:45 pm (UTC)no subject
Date: 2006-10-16 06:51 pm (UTC)Actually, now I'm curious. I'm gonna e-mail my editor and ask if they have an official or unofficial policy regarding fan fiction.
no subject
Date: 2006-10-16 06:59 pm (UTC)no subject
Date: 2006-10-16 07:16 pm (UTC)But because the copyright belongs to me, if Dreamworks had decided to go ahead and do a Goblin Quest movie, it means I would have gotten a nice little paycheck. That's another piece where the copyright law protects me financially. Tanya Huff's Blood series, which is filming up in Canada, would be another example. Technically, I'd say a TV show is a derivative work from her books, but I'm sure she's getting a nice check out of the process...
I'll let you know when/if I hear back from my editor.
no subject
Date: 2006-10-16 08:23 pm (UTC)*bounces and squeaks* They're doing a tv series of the Blood books? Excellent!
no subject
Date: 2006-10-16 08:30 pm (UTC)It is :-)
"*boots Thompson Gale a few times for good measure*"
Ironically, GoblinQuest first came out from Five Star, which is a subsidiary of Thompson Gale. But their fiction contracts are very different from the academic.
"They're doing a tv series of the Blood books? Excellent!"
Not in the U.S., unfortunately. Check my agent's site: http://www.awfulagent.com/ Tanya's another client, and her TV series is one of the top items under BREAKING NEWS.
Gotta run and get dinner...
no subject
Date: 2006-10-16 09:21 pm (UTC)no subject
Date: 2006-10-16 10:10 pm (UTC)no subject
Date: 2006-10-17 06:48 pm (UTC)Anyway, I got a brief response from my editor, basically saying that it's not a good idea to allow others to start writing in your world with your characters. (I'm not sure I was 100% clear what I was talking about, but I think she got the gist.)
Like I said, it was brief, but I get the sense a lot of it comes down to protecting the "official" author and the publisher. She mentioned the crazies out there who will come after you for stealing their ideas. I suspect the vast majority of folks in the fanfic community are both respectful and sane, but I can also see it from the publisher's perspective. I believe DAW was MZB's publisher when that whole Darkover mess happened, and it would only take a few determined nuts to cause some major problems for the publisher.
In a way, it's the same reason I took pictures of my kids off the web. I think 99% would enjoy and appreciate them, but I'm not willing to put up with the other 1% who ruin it for everyone. (Sick bastard...grumble.)
no subject
Date: 2006-10-18 05:00 pm (UTC)That does sound like the sort of policy that comes out of 'slippery slope' thinking. As in, if you allow anything pretty soon you'll have to allow everything or else explain to a court why you shouldn't; and they want to avoid that, so they just have a blanket policy of never-ever.
Which I understand, but I don't think that makes it right or something that should go unchallenged. The crazies are always out there. If we live our lives according to what will protect us just in case a crazy ever crosses our paths, then everyone on earth would sit in a locked room all day doing nothing at all. If ideas are not copyrightable, then the publishers and authors are still protected from idiots like the one in the MZB kerfuffle, because any claim that the author stole the fan's idea would be chucked out of court instantly as invalid.
no subject
Date: 2006-10-16 06:43 pm (UTC)Playing Devil's Advocate here, but I'm curious why you specify "not-for-profit". I know it's a general rule of fan-fiction that you don't try to profit from what you write. Jareo got herself shredded pretty bad for violating that one with her Star Wars stuff, and I've seen a few other examples.
But if fan-fiction is ethically acceptible, why shouldn't you be allowed to profit from it?
Or are you just saying that while a decision allowing non-parodic, not-for-profit fanworks is probably unlikely, it's still more likely than a decision allowing non-parodic, for-profit fanworks?
no subject
Date: 2006-10-16 07:59 pm (UTC)