Useful things to do with copyright

[branchandroot]

Having 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.

Comments

[jimhines.livejournal.com]

One of the better public discussions I've seen on this was over at http://www.scalzi.com/whatever/004392.html (http://www.scalzi.com/whatever/004392.html) (John Scalzi's blog). Some of the comments are just stupid, but others are very well thought-out, including some discussion of the distinctions between U.S. and European copyright law and how they relate to fan-fiction.

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.

[executrix.livejournal.com]

It doesn't really matter very much what WE think!--no matter ho wmany times we say that we think we're making valid artistic statements that help rather than harm the economic interests of TPTB, that still doesn't give us legal authority. It's certainly possible that there would be a court decision (preferably a Supreme Court decision) acknowledging that non-parodic, not-for-profit fanworks engage in transformative fair use, or it's possible that a contrary court decision would be reversed by Congress amending the Copyright Act. I think it's damn unlikely, but it's possible.