A copyright is a form of monopoly, and therefore effectively a tax on the public—thus, it should be restricted to precisely as long a term as would make equivalent the harm done to the public by monopoly and the good provided by encouraging the creation of new works.

The harm done to the public is fairly hard to put into objective terms, which makes it hard to use it as a basis for how long terms should be. Although "public good" is important and I believe is the essential basis for why "Fair Use" is allowed. The problem is those who want longer terms will usually argue that the public isn't really harmed by a long copyright, so they argue making it longer isn't really harming them that much more.

But in terms of figuring out what copyright rights and terms should be, looking at it as a bounty set by the government makes it fairly objective: As low as possible, but just high enough to get the job done.

42 years was enough reward for Mark Twain to write, and plenty of other authors to write, up until 1909. Even though Twain argued for terms that lasted for perpetuity, he was willing to do it for a lot less. 56 years was enough to get folks to write plenty of stuff all the way up until 1976. Nobel prize winning and Pullitzer prize winning literature was written for a 56 year copyright term.

So, historically, there seems to be sufficient evidence to say that 42 to 56 years is enough to get good authors to create great new works, including “Slaughterhouse Five” by Kurt Vonnegut, “The Old Man and the Sea” by Ernest Hemingway, “The Sound and the Fury” by William Faulkner, “The Grapes of Wrath” by John Steinbeck, and of course "Huck Finn" by Twain.

Those who want longer terms, need to compete with the lowest bidders, or explain why they're worth the extra years of monopoly.

obligatory link

Great article and sum up of what's going on in the fan fic debate. Thanks for writing this.

I’m not sure disclaimers have any use or legal standing to start with, but if you must use one, consider saying something like:

I don't think the disclaimers have any legal effect at all. Over in the Free Software world, there are sometimes big arguments over whether a liability waiver is important (This product is provided AS IS, yada yada) and whether it is important to have contributers affirm that their contributions belong to them (This is my work that wholly belongs to me and I give it freely, yada yada). But that's it for waivers. Even on the Creative Commons discussion threads, which covers non software stuff, it pretty much comes down to those two issues.

But nothing like the fanfic waiver's I've seen. And nothing I've read about copyright law ever made any note about waivers saying "if you say this up front, you'll get into less trouble."

About the only legal thing I know of that has effect is display a copyright notice. Other than that, nothing else has any legal effect on copyright issues.

It is an interesting phenomenon that fanfic often has waivers of gargantuan proportions, given that they don't do anything.

Because this seems like as good a thread as any ... A Fair(ly) Use Tale.

Because this is as good a thread as any for this ... A Fair(ly) Use Tale.

It's unfortunate that Macauley didn't answer the question of what is the correct length of copyright protection. This isn't a new issue, of course. He actually raises it in the first speech. But we're in an age where copyright terms keep getting lengthened. Some people (including, apparently, the Supreme Court) don't get that in order for copyright to be of finite term, it must expire at some point. It can't be constantly extended.

(I've only skimmed the Supreme Court decision. But to be fair to the Supremes, I think the argument is that what they were concerned about was not the repeated pattern of copyright extensions but whether a given copyright extension in isolation was Constitutional or not. If I skimmed well, it seems to me that the "virtual perpetual copyright" argument wasn't so much rejected as deemed irrelevant to the discussion, which was about a given law, not Congress's behavior over the years.)

Compounding things is that we're in an age where we are averse to litigating to find the boundaries of fair use. This is probably because litigation is really expensive. It may be cheaper, monetarily, to assume that there is a right which needs to be licensed and paid for. I remember hearing on NPR the lament of documentarians who can not afford to pay for the rights for background music which their cameras happen to capture. I think I remember them cutting a scene where a kid says (not sings) "Everybody dance now!"

The desire for ever longer terms of copyright and copyright holders' severe views of what constitute fair use are doing awful things for transformative art. (Ultimately, I think all art is transformative.)

(BTW, I'm not saying that copyright holders shouldn't have a severe definition of fair use. I'm saying that when people disagree about such things, we have an established mechanism to determine a workable definition. It's just too bad that no one can afford to actually engage that mechanism.)

There's something to be said for good, old-fashioned Whiggism.

Greg at #3 said, "It is an interesting phenomenon that fanfic often has waivers of gargantuan proportions, given that they don't do anything."

It's my understanding that very few fanfic authors actually expect these waivers to be of any legal value. Rather, it's a semi-standard way of clarifying their intentions; they want to assure the original authors that they have no intention of making trouble for them, or suing them, as happened to Marion Zimmer Bradley. The reasoning is that if the author knows she has nothing to worry about on that front, she'll be less likely to try to shut the fanfic authors down.

I think legionseagle's apparent agreement with kradical about the relative quality of pro- and fanfic is illusory.

The following remarks are based largely on my experience in Star Trek, a fandom in which there is a very long tradition of fanfic and which includes some of the best tie-in novels. Many of my opinions were crystallized in discussions on the Usenet group alt.startrek.creative in which John Ordover, then editor of the Star Trek tie-ins, was involved. [In particular, I remember a discussion about Steve Barnes' novelization of Far Beyond the Stars. Barnes is a great pro writer, writing about a great episode -- but he only had a few weeks to write the book, so while it's very good for a tie-in novel it's not as good as it could be, or IMHO *should* be.]

Yes, ST fanfic in bulk is Sturgeon-compliant and 90% of it is crap. But the *very best* Star Trek fanfiction is better than the best tie-in novels. It is better because:

a) it is not done to a tight deadline

b) it is carefully edited

c) fanfic writers can pull out all the writerly stops (style, POV, allusion, time-frame, the whole literary arsenal).

d) fanfic writers can let the characters change and evolve beyond the tight bounds set by the publisher's interpretation of canon.

The trouble with fanfic, from a tie-in novelist's POV, is that the best fanfic makes profic look second-rate. And the constraints of the profic market -- the fact that tie-ins are written as "product", not as works of love & inspiration -- means that profic *must* be second-rate, it is not allowed to be first-rate.

So yeah, I think fanfic does actually suppress sales of crappy tie-in novels -- but that's not because fanfic is stealing, it's because *the tie-in novels are crappy*. And that is emphatically *not* the fault of the fanfic writers or fans.

IANAL, but I learned a good deal about scientific patent law at one time.

The premise of patent law is that technological innovation should be protected -- so that people will put in the effort to innovate -- but only up to a point, because new ideas are assembled from the component parts of old ideas. Patents expire so that technological advances can be composted back into the soil of knowledge, which is where new advances will sprout. ::waves at springtime out window::

It's curious to me that no-one seems to make the (to me obvious) connection to art and other forms of "intellectual property". Just as with technology, we make the culturally new from pieces of the old: we use old words to describe new situations, or vise versa.

The question to me is, is there any particular reason why the copyright on a movie should be longer than the patent on a medicine? The first reasons I can think of are:

a) it is much more difficult & expensive to make a generic version of a patented technology than a generic version of a work of art. Basically, technology patent-holders get a de facto competition-free period that is longer than what they're allowed de jure.

b) Disney is actually whinier than Big Pharma.@.@

However, contrary to all-too-common belief, the copyright holder has no claim on that new story. The story itself—that specific configuration of words—belongs to the author. So does the plot, if it doesn’t infringe on the copyright. So do any other non-infringing original elements. So if you’re a fanfic writer, please stop saying you don’t own your own work.

Or to take the oft-cited Marion Zimmer Bradley affair. The latest version I've read being here -- http://webnews.sff.net/read?cmd=read&group=sff.sfwa&artnum=4369.

MZB wanted to use original elements -- a character -- from a story which had been accepted for publication in a Darkover(?) anthology (I think that means she was granting a licence for people to write stories for submission...)

The writer of the short story, who generally gets vilified in these accounts, was the copyright holder of those elements -- and so had every right not to accept MZB's offer.

[Whatever the moral of the story actually is (possibly 'you can't have your cake and eat it') -- if this account is a true one, it's kind of unfair for those who're against people using and abusing *their* original creations to keep making unpleasant comments about a writer, who had fairly explicit permission to use MZB's world and characters, choosing not to sell *her* rights.]

Macaulay at least implied a method for determining the length of copyright:

1. set a short length.

2. If you feel not enough stuff is being created, lengthen it.

3. Does the longer term have the intended effect of creating greater incentives (such as the rates being paid to first-time authors go up)? No? Stop lengthening copyright.

Notice that the profitability of publishers has nothing to do with this method.

I wouldn't be surprised if the ever growing and consolidating backlists were a large indirect cause of the 'blockbuster' economics that have increasingly driven the music, movie, and publishing industries.

Marion Zimmer Bradley

Name rings a bell....

(google google google)

For a time, Bradley actively encouraged fan fiction within the Darkover universe, but this came to an end following a dispute with a fan over an unpublished Darkover novel of Bradley's that had similarities to some of the fan's stories. As a result, the novel remained unpublished, and Bradley demanded the cessation of all Darkover fan fiction.

Oh. Right. I had heard about that.

hm.

I'm unconvinced that if an author had a fear of getting sued that a fanfic waiver would make a difference.

Meh. Who knows. Stranger things have happened.

*ahem*

The Marion Zimmer Bradley/Darkover flap was discussed at great length in this comment thread. I believe that by the end, it constituted the most thorough account available of that event.

I would seriously appreciate it if people who are interested in that bit of history could follow the link and read about it first.

I would seriously appreciate it if people who are interested in that bit of history could follow the link and read about it first.

whooops! no harm meant by defaulting to google.

Did I ever mention I have a brain like a collandar?

I think part of the deal with fanfic disclaimers, at least currently, is that they're expected -- I've seen disclaimers be required for certain listings or archives. New writers are pretty much told they have to put them in there, and even if they're aware of how legally useless they are, they're a pretty well established convention that can't be easily bucked in a lot of fandoms.

Apologies.

Mr Fiest's account seemed to point up that people who are copyright holders believe they also own original elements, here including a character, written by someone else within their world.

I had no idea I'd be reopening a can of worms -- I will try and remedy the situation by eating some :)

Dr. Science @ #9: The trouble with fanfic, from a tie-in novelist's POV, is that the best fanfic makes profic look second-rate. And the constraints of the profic market -- the fact that tie-ins are written as "product", not as works of love & inspiration -- means that profic *must* be second-rate, it is not allowed to be first-rate.

As one who has written both Trek fanfic and profic, I take offense at this. I have been a fan of the Trek universe almost since its inception, and my love for these characters and settings do not fluctuate depending on whether or not my stories are contracted or not. And not only have my editors allowed me to exercise my passion and inspiration in the contracted works I have done, but they have encouraged it. As to the idea that writers would be less inclined to do their best work when there is a pro editor to please, and money on the line if they do so... well, I can't quite get my mind around that one.

One thing that has always made me wonder is that some British SF authors, published first in the UK, are much freer with allusion and snarky in-group references than many American authors. I'm referring especially to Ken MacLeod and Charles Stross. Great swatches of MacLeod's Newton's Wake (the last fourth of the novel) allude to Harrison's The Pastel City. Is British copyright law more lenient, and would American authors be pressed to suppress allusions?

It depends, I suppose, on the author being alluded to -- if I were to write fiction intended to make fun of L. Ron Hubbard's fiction, in the manner of Aldiss' White Mars on Robinson's interminable Mars trilogy, the Scientologists might be after me.

No eating worms. But do go read the thread; it's interesting.

Just a note that there's a very useful annotated version of the first Macauley speech up at Kuro5hin. Most of Macauley's references (to Hayley, Tonson etc.) went right over my head -- as I imagine they would most readers' -- and the speech is even more relevant when they're understood.

It seems to me that the disclaimers are more a form of politeness than anything else. And in some cases, a way of telling the n00bs that no, the Snarry fic really isn't by JKR. Because it's late, and my mind is turning to the strange ... if someone recorded the conversations of kids playing with Barbie, Ken, and various other members of the Barbie-verse, and then posted it, would they or the kids be guilty of copyright infringement? What if it were Barbie slash? I realise that Barbies are dolls, and meant to be played with, but how are some of the targets for fanfic that different? JKR and her creatures are a huge marketing machine, after all. What if we wrote down and posted what kids said when playing with HP action figures? Or fleshed out everything that happened in a book-based RPG and posted that? It's fans, and it's fic, but it's based on toys that were given (in the sense of sold) to the fans. Somehow, I think the question of rights was probably much easier before tied-in merchandising.

So far as the term is concerned, life plus 30 years means that in a worst case scenario any children of a deceased copyright holder get any appurtenant income stream until they are likely to be done with education. What more could one want?

I've also done both pro tie-in fiction and my own stuff, and the very best is IMHO in the tie-ins: the combination of a fantastic editor and the constraints of an audience I could know something about brought out good things from me.

Let's not forget also that the pro-fic Trek tie-in novels include two by Mike Ford; that causes me to question even more strongly that claim that the best fanfic is better than the best tie-in novels.

#14 & #20 Interesting and engaging... Perfect entertainment for a Bittercon night :)

In the spirit of potentially legally useless yet expected and informative disclaimers: IANAL, TINLA.

However, two comments:

The question to me is, is there any particular reason why the copyright on a movie should be longer than the patent on a medicine?

The changing nature of copyright (DMCA) aside, the protection granted a patent holder is much, much stronger than the protection granted a copyright holder. There's no fair use exception in patent law, nor is independent invention a defense against patent infringement as it can be against copyright infringement. (This is one reason why patents on software algorithms - some of which can be infringed upon by having as few as six assembly language instructions in the right sequence - are so odious)

Secondly, from the post:

Here’s how it was explained to me: Copyright infringement is copyright infringement, whether or not you’re making money from it, or intend to make money from it, or intend to commit copyright infringement, or intend anything beyond entertainment. What matters is that you used, without license or permission, material that’s covered by someone else’s copyright.

That's true as far as it goes, but it ignores fair use. Here's most of 17 U.S.C. 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

• first off, there isn't delineated here a bright line test as to whether or not something is fair use. We know that some things aren't fair use (e.g. copying 253 pages from a 12-volume biography of George Washington), and that some things are (making a parody of a work that as an essential part of its meaning mocks the original work). (I'm referring there to Folsom v. Marsh and Campbell v. Acuff-Rose Music, Inc., respectively) However, fair use is decided on a case-by-case basis, and Congress clearly throws picking the mess apart between fair use and infringement over to the courts to hash out.
• Secondly, this list is explicitly non-exclusive. ("factors ... shall include", not "factors ... shall be") Although the first factor mentions "educational" in the same breath as "non-profit", the profit motive can and has been considered in isolation. (I see this stated in several places, but can find no case law supporting this)
• Even after finding that a particular use is not fair use, the profit motive can be considered when assessing damages. (See section 504) Although certainly any fanfiction case will hinge on statutory, not actual damages, the courts have a huge amount of discretion in awarding damages ($750 to $150,000 in the case of willful infringement; even non-willful infringement damages can go to $30,000). Being upfront that you never intend any profit from this venture just strikes me as sensible.

Relatedly, from the post: Acknowledgement is not permission. If you have permission, say so

I will withhold comment on whether it is generally a wise move to call attention to specific points of unauthorized use within one's own work, but I will point out that people say things at the top of their fanfic for reasons other than strict liability under 17 U.S.C. In many creative communities, attribution is a much, much bigger deal culturally than copyright. I am not well-acquainted with the culture of people-who-write-fanfic, but I see it as perfectly reasonable that such a culture would develop a very strong cultural attachment to proper attribution. (One of the easiest ways to avoid losing litigation is to avoid litigation in the first place. One of the steps towards doing that is obeying the cultural expectations of people who would have a cause of action against you.)

So... is there really anything that can be done? In another 20 years, Disney will push for life plus 90 years, and they'll get it.

I've seen claims that full Berne Convention copyright systems make a point of protecting the attitbution of the work. The Berne Convention apparently takes that from French Law, and it's only been in British copyright law for the last ten years or so.

Hence the "moral right of the author" phrases in moden British books.

So the disclaimer as attribution does fit with that. But the disclaimers I see seem to go far beyond that. If attribution were the motive, you'd credit Gene Roddenberry, not Paramount.

I've seen claims that full Berne Convention copyright systems make a point of protecting the attitbution of the work. The Berne Convention apparently takes that from French Law, and it's only been in British copyright law for the last ten years or so.

Hence the "moral right of the author" phrases in moden British books.

So the disclaimer as attribution does fit with that. But the disclaimers I see seem to go far beyond that. If attribution were the motive, you'd credit Gene Roddenberry, not Paramount.

Bill:

As to the idea that writers would be less inclined to do their best work when there is a pro editor to please, and money on the line if they do so... well, I can't quite get my mind around that one.

(a) Because of the time factor. As a rule, tie-ins are done against tight deadlines, tighter than for original, stand-alone novels.

(b) Because most tie-in editors care much more about getting the specified amount of copy by a certain date than about whether it's any good.

I now recall that one of the issues we discussed with Ordover back in the day was William Kotzwinkle's novelization of E.T.. Kotzwinkle's book is actually *interesting* from a literary POV and it garnered critical praise as well as camping out on the bestseller lists for months. So why didn't publishers try to do more tie-ins like that?

The only reason Ordover & other people in the industry could come up with was because *TPTB don't want to*. They don't want the books to be important, they don't want the novelists to be respected and highly-paid, they don't want tie-ins to have a life of their own. They want them to be dependent and secondary. They also don't want to take any risks or have any uncertainties: they want to be able to predict how much money a book is going to make.

sara @ 19:
I doubt it's a difference in copyright law. (Amazon.com says that White Mars has in fact been published in the US as well as in the UK.) Michael Baigent and Richard Leigh sued Dan Brown over The Da Vinci Code in a British court -- I don't know if that was really significant, but perhaps it suggests some vague belief that an American court might have been more lenient towards Brown than a British court.

(For what it's worth, the Wikipedia article on Copyright Law of the UK mentions that the British equivalent of "fair use" is "much more restrictive" than the American version. This doesn't directly address pardoy and satire, but does hint that British law isn't more lenient than US law in this area.)

@Bruce:

I'm not doubting that that particular set-up worked for you. I do note that the RPG sources for which you've written tie-ins do not have large fanfic-writing communities, so if they are Sturgeon-compliant they can't be expected to throw out many first-rate stories.

#22 It seems to me that the disclaimers are more a form of politeness than anything else.

Yeah, it seems rather rude for a fanfic writer to be inspired by a particular person's work to the point of actually taking the time to write a story, and yet not give the original creator a nod.

The disclaimers may also serve to give some value to the original creators, by increasing their name-recognition. Many people don't know, offhand, the writers, creators or producers of what they saw on television last night. (I know I don't.) When I read a good fanfic, I'm more likely to remember the creators of the original work than just knowing the show. And I've been known to go check out the original after finding an interesting fanfic in that universe. To that extent, they're providing advertising.

The various disclaimers seem, to me, to be a sort of spontaneous ethical answer to the tension between the good of copyright and the good of public domain. Creators should get recognition for their work, but that work should be available to the public for use. It isn't proper legal language, but it is a surprising popular understanding of the principles behind the law.

I'm not sure where this puts the anti-fanfic of Right Behind http://exharpazo.blogspot.com/ inspired by Slacktivist's critique. http://slacktivist.typepad.com/slacktivist/left_behind/index.html Fanfic inspired, not by the book you hate, but by the critic you love?

(Some of the "Right Behind" stuff is quite good - "Children of the Goats: Part 1" is breathtaking.)

in #23, Aurelian, you brought up the "reasonable" case for life+ terms. I'll quote myself from elsewhere. Take what you like.

The true utility of life+ terms is as follows:

* It provides a verifiable way to determine the exact date something enters the public domain. Death certificates and death registers are easier to locate and more certain to be created than copyright registrations.
* It provides for the author being run over by a truck the day after they sign a contract.

The true utility of life+ terms is NOT:

* To provide for dependents. Sell the copyright and invest the money, and in 70+ years you will be able to reliably provide for your dependents. The future value of almost all copyrights is zero; to regard them as an investment is to acknowledge that they are a very risky investment.
* To provide for the author's literary immortality. Every one of your fans AND their children will be DEAD when someone can first take your work and build it into our culture. (Under the current regime.)

There's some nuances to what I said above that are worth talking about, I think. For instance, Life+ terms are much much less of a problem if copyright registration has to be kept up in order to get them: several orders of magnitude of orphan works would fall into the public domain quickly and easily, and lots of the edge cases that drive anthology editors nuts would be resolved.

C.E. Petit goes on at some length here on the trademark and copyright issues surrounding fanfic. He talks a little bit about the idea of "character copyright", which is kind of interesting. (I thought he wrote more on that, but I can't find it.)

Of course that was about two years ago, so important things may have changed.

When I write and (in any sense) publish a filk song which is derivative of some other work, I'm careful to give credit where it's due, while explicitly claiming copyright on my own work. For my occasional manipulations of images for humorous purposes, I include a comment like "The image combines portions of images [X], (C) and (TM) by [A], and [Y], (C) and (TM) by [B]. This parody is not intended to make any claim on those works, which are wholly owned by their respective copyright holders." I feel that it's important to give appropriate credit to the original artists/works; if nothing else, it's a matter of basic courtesy. On the other hand, I figure that it can't hurt to explicitly point out that my work is a parody -- that I feel that I could make a strong case for "fair use" in the (unlikely) case that someone were to get snippy.

I'll admit that I haven't gone out of my way to call Paul Simon's attention to "50 Ways to Kill an Ensign", though.

This is all fascinating, and taught me things I hadn't known...but I particularly liked this juxtaposition:

What is illegal (ie contrary to criminal law) in one territory may be perfectly legal or even conceivably mandatory in another...

[Omitted: a discussion of sodomy laws in the state of Georgia.]

Regrettably, the omitted portion mentioned that the mandatory/illegal juxtaposition was more common for food additives than sexual practices...

Though a friend of mine who was doorstepping for the Labour Party before the 1992 UK General Election met someone who assured her that he couldn't vote for Kinnock because "the Labour Party subsidised men to live in sin together" and, on telling her circle about it, found herself bombarded with requests for the application forms.

I'm in favour of traditional American copyright, 28 years plus another 28 if you're alive and want it. I'm right there with Macauley.

But fanfiction can hurt writers and here's how -- sod money, money has nothing to do with it, this is a totally emotional argument.

If other people can take my characters and my universe and write their own things about them, wrong (and it'll always be wrong, to me, because I know what wasn't in the story and they can't) while I'm alive and don't want them to (dead is different, this is about the inside of my head and my creativity, which won't be an issue when I'm dead), then I'm not safe to let my stories and my characters out there because they might be desecrated. The thought of it makes my throat close up. Just reading this here and thinking about it will probably stop me writing any more today.

If I'm not safe to publish, I won't.

That might not hurt anyone except me, and the other writers who feel this way. There are probably quite sufficient writers who don't feel this way that there would still be books. But there definitely wouldn't be any more of mine.

If there is a jurisdiction in which sodomy is mandatory, I hope there are signs at the border. It's not the kind of thing you'd want to take you by suprise.

Now, I ask you; how satisfying would you find it to be randomly body searched while sitting having a quiet drink?) …

[Omitted: something-or-other involving the Duke of Devonshire.]

had me thinking for a moment that it was the pub The Duke of Devonshire. Fortunately two seconds thought reminded me that a. it's in Balham; b. it's still open (or was a couple of months back); and c. it had no such sign.

Well, drat. I thought His Grace the Duke would "demand satisfaction," and that his staff knew that that meant they should immediately body-search him.

On a more serious note, I think I'd feel as Jo does.

My reaction to the thought of someone writing fanfic of my profic is "dear god, if only my books were that popular" (and the standard "if you're making money off it, I'll set my publisher's lawyers on you"), but I do think that it is rude to write fanfic where the author has indicated that they find fanfic distressing.

28: is there really anything that can be done? In another 20 years, Disney will push for life plus 90 years, and they'll get it

I wonder if that's true. When this last came before Congress in the mid-90's, the copyleft was a long way from where it is today. There's been a lot of political work (in the sense that educating people, raising awareness, changing minds, etc. are political work) done since then.

Which is to say: in the mid-90's there wasn't really much of an anti-extension constituency, and politically, any issue on which only one side has a constituency will always go for that constituency. But now there's a group of people who feel passionately on the other side.

Doesn't mean we'll win -- I'd hate to place odds on it -- but it seems to me that it might be a lot more of a fight than last time. (And it's different than the question of getting newer, better laws passed: it's always easier to block something -- e.g. yet another extension -- than it is to put something through.)

SF

Jo at 40, I share your feelings. I have never looked to see if any of my books or characters have inspired fan fiction, because I know I would be disturbed and angered by fiction about my characters -- particularly characters in books or stories that I am still working with or writing about. It is, as you say, about a writer's relationship to her characters, not about money.

It won't matter when I'm dead. I support limited copyright laws.

On the other hand -- a woman in France once wrote some music with lyrics based on a book of mine. She very kindly wrote to me asking permission to publish it, though I am sure she didn't have to. I was happy to give permission. No money changed hands.

IAAL. This is my area of practice. This is commentary, not legal advice for any particular situation.

If I may respectfully point out a serious problem with this debate: It asks the wrong question, akin to arguing with a guy who is threatening you with a knife over his position on gun control.

The primary question does not concern copyright. Admittedly, the primary legal authority appears to come from copyright, but that is as much a quirk of legal procedure as it is anything else: The US Copyright Act has, since the 19th century, allowed a winning plaintiff (under many circumstances) to force the losing infringer to pay the winner's attorney's fees. That procedural quirk has — quite rightly, in terms of "the best interests of the client" including the idea that a client who was wronged shouldn't face a $200k legal bill for recovering $10k in statutory damages — resulted in overdevelopment of, and overemphasis upon, copyright law as the "source" for character protection. The best examples of this are the Krofft, Air Pirates, and Dr Juice cases out of the Ninth Circuit, in which it's sadly amusing to see the court twist trademark issues into questions of copyright (and, frankly, in two out of three cases reach the wrong answers because the judges were humor-impaired). Of course, it's not just the Ninth Circuit; the rest of US copyright law that relates to "character protection" is infected with most of the same problems, and normally more so (consider, for example, the sweeping statements — not justified by any facts in the record — from the Second Circuit in the various Tarzan-related cases).

The primary question for fan fiction is one of trademark (passing off, reverse passing off, dilution, and disparagement), not copyright. I've written on this at some length in a condensed, intended-for-nonlawyers summary of an academic law article. I'll be writing on it at even greater length shortly, possibly including some actual litigation (that, due to another procedural quirk, might allow me to recover attorney's fees for my client even under a trademark theory).

Aside: Macauley's speech is tremendously persuasive, so long as you accept his unstated premise: That full-time producers of creative works, covered by copyright, will all be independently wealthy and/or "kept" and/or the object of fawning patronage from the idle rich. One can see this assumption in much of Macauley's other work, too. As a constitutional imperative, in the US we have (not quite explicitly) rejected that assumption — so, again, a large part of the problem is that Macauley's position doesn't correspond to the actual issue.

Second aside: To only slightly mangle Churchill, intellectual property laws are the worst way of encouraging the production of creative and progressive works, except for all the others. Consider the alternatives:

• Government sponsorship — yeah, that works real well when it's the only means of supporting artists. Just ask Natalya Gorbanevskaya, or Aleksandr Solzhenitsyn, or... well, I won't belabor the point, which is that no matter how enlightened it starts out, it always ends up with censorship, prison, and stagnation.


• Right-of-living — how much original work has come out of Sweden in the last half-century that did not depend upon that durned furrin copyright stuff? It also assumes that "idleness" and "leisure" are the best ways to encourage creativity.


• Leisure-time creation — assuming, of course, that the overall economy is strong enough that everyone with a creative spark can spend time painting daisies instead of pushing them up. Further, this skews creative visions and works toward the upper classes (and that includes "useful" creativity, such as patents, too).


• Private/religious patronage — see the first point above, only more so. There's a darned good reason that so much of Swift's work was pseudonymous and/or anonymous... and he's just the least-inflammatory example I could come up with before adequate caffeination.

Lizzy 46: Back when I still thought I'd form a band someday, I wanted to call it "Azi Tape." I'd've written to Cherryh for permission to do that, even though I actually would have no obligation to do so.

Courtesy means doing things you don't have to do just because they're right. Among other things.

CEP #47: You've said a lot of things that have been bugging me in a nonspecific, back of the brain way for a while, so thank you.

I'm not really sure what you're saying in the bit about Sweden--what all does that mean? Also, I don't know much about Swedish literature, but I do know that they're one of the most exciting producers of pop music in the world. (Defining pop music in its broadest sense.)

Jo -- Perhaps I should mention that on a couple of occasions when I've had a filk idea which I thought did an "inappropriate" warping which I had reason to think might offend the author of the original, I got in touch with the original author to make sure that s/he was okay with the parody. Not that I would have stopped writing the thing (I needed to exorcise it from my brain), but if necessary I would have refrained from performing or distributing it. So far, I've always had permission... though one author did ask me to always make sure that I let the audience know that though I was using the structure and patterns of her song, the tone and content were mine.

Would you necessarily be bothered by any work derived from your characters and worlds, or only if it got things wrong? I don't have anything planned, but I have to say that a world full of Victorian dragons has a lot of potential for humour. A couple of years ago when you were GoH for C-ACE, I was tempted to suggest to the concom that an appropriate bit of cover art for the program book might involve a mustachioed dragon villain cackling gleefully over a helpless dragon maiden tied to the railroad tracks.

C.E. Petit: Well, those indolent Swedes have earned 2 Nobel prizes in physics, 5 in physiology, 3 in literature, 2 in peace, and 2 in economics in the last half-century. I'd have to check the details, but I'm pretty sure Tetra Pak continues to receive credit for inventing what's become standard methods and forms in coated cardboard packaging, and of course there's Nokia, and like that.

Meanwhile, back in the USA, I find that my own views on copyright have shifted drastically in the direction of limited terms, use of creative commons licensing, and the like, since I started writing for money. The more I learn about how people write, the less I find myself worrying about what anyone else is going to be doing with my stuff.

Bruce 51: Nokia is based in Finland, not Sweden.

And now, a few impertinent rejoinders to specific comments above in this thread (references are to post numbers). Keep in mind that I ain't yet had my caffeine, I'm running a 101+ fever due to an infection (thanks for sharing, kid!), and this is off-the-cuff.

1 — Keeping in mind that the term of copyright, in the English-speaking world, long (that is, since 1609) approximated the estimated productive adult life of the upper class, the steadily lengthening term becomes a lot easier to understand. Blame the French for the "life-plus" stuff.
   Then, too, one also needs to consider the theory of "natural monopoly." Warning: This is one of the most difficult aspects of competition law, and for the matter of economic theory. I don't pretend to understand it all that well... but at least I consider it, unlike the oligopolist transferees.

3 — Disclaimers don't evade liability. They are, however, evidence that can be used to keep from being hit with exemplary damages for willful misconduct. For example, willful copyright infringement can treble actual damages and quintuple statutory damages. They're not proof — merely evidence — but that's probably better than nothing.

6 — JC's characterization of Eldred (you can find it at Cornell's Law Library) is correct: What was at issue was the constitutionality of the specific statute, not some hypothetical/indefinite attempt to impute an intent to "Congress over the years." It's hard enough to figure out "Congress"'s intent (all 535 members) in a single bill in a single session!

14 — From a lawyerly point of view, the whole thing screams "borderline malpractice" to me. But then, what do I know? It must be ok for a bunch of labor lawyers to argue copyright cases before the Supreme Court, like they did in Tasini, right?

32 — The Wikipedia article's reasoning on "fair dealing" v. "fair use" isn't just weak, it's flat wrong. The conclusion is correct, though. I suspect that the real reason that the Dan Brown case was filed in England comes down to procedural maneuvering, not substance.

36 — Thanks for the tip ;-) Actually, I just didn't see this before I linked to myself myself.

40 — And here's the hard argument — one that is not susceptible to cold, hard numbers. If the originator of a creative work is deterred from doing so (or, as in Jo's case, perhaps doing more) by fear of noneconomic harm to his/her creation, using an economic tool like copyright/trademark/IP in general to create the presumed economic benefit (more creative works) seems like a good solution. The difficulty, of course, is that there will always be anecdotal evidence on both sides, and there's no good means to weigh that evidence. Thus, we end up with two ships passing in the night, with both sets of passengers leaning over the rails screaming at each other so loudly that the crews don't hear the foghorns and everybody ends up on the rocks. Cromwell's imprecation applies to everyone in this debate: Take time to consider the possibility that you might — at least in the specific circumstances — be wrong.
   Then remember that "statutory law" as we know it is inherently a "greatest good for the greatest number" mechanism. Then go read Rawls and think about how the veil of ignorance applies to intellectual property.

49, 51 — The Nobel Prize winners were not doing "creative" work in the sense that IP law protects, so they're an illusory rejoinder. (We'll leave the historical preference of the Academy for Nordic prizewinners for another time.) And, in fact, the "pop music" issue proves my point: Swedish "pop music" uses the IP system in the rest of Europe to distribute itself, despite the Swedish "artist's subsidy" (and I really, really don't want to hijack this thread for a discussion of that in any detail).

* * *

I think my real point is that this is a difficult issue and no universally workable solution exists. Instead, any system is going to involve trade-offs; the key is making those trade-offs work for the system as a whole, not necessarily for each instance.

And one more comment:

29 — Paramount is the author because that's what the work-for-hire doctrine in US copyright law says: That the patron is defined as the author (see 17 U.S.C. § 201(b)). This is one aspect of copyright law that I absolutely do not defend; I find it rather amusing that patent law manages to designate the individuals as "inventors," but that copyright law can't manage to designate the individuals as "authors." Well, not really amusing — disturbing, and quite possibly unconstitutional. (Short version: Congress does not have the authority to redefine the terms in Article I, § 8, that give it its powers. Thus, Congress does not have the authority to redefine "Authors" in cl. 8 at "patrons.")

C. E. Petit writes: "Macauley's speech is tremendously persuasive, so long as you accept his unstated premise: That full-time producers of creative works, covered by copyright, will all be independently wealthy and/or 'kept' and/or the object of fawning patronage from the idle rich."

Charlie, what on God's green earth are you talking about? Macauley says:

There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may.

I admit that Macauley's wonderful cadences can be a little hard for 21st-century readers to parse at the speed we're accustomed to sight-reading polemics. My recommendation: Read him aloud to a friend. You'll discover, among other things, that he's funny.

Also from Charlie: "I think my real point is that this is a difficult issue and no universally workable solution exists. Instead, any system is going to involve trade-offs; the key is making those trade-offs work for the system as a whole, not necessarily for each instance."

The other key is that the conversation about those "trade-offs" needs to include members of all parts of society, not just lawyers.

The fact that it's a "difficult issue" is not an argument for leaving it to specialists. What the specialists have bequeathed us isn't so all-fired hot.

Sara (19): "One thing that has always made me wonder is that some British SF authors, published first in the UK, are much freer with allusion and snarky in-group references than many American authors. I'm referring especially to Ken MacLeod and Charles Stross. Great swatches of MacLeod's Newton's Wake (the last fourth of the novel) allude to Harrison's The Pastel City. Is British copyright law more lenient, and would American authors be pressed to suppress allusions?"

It's not a problem. Literary references and allusions, especially brief ones, don't violate copyright.

Doctor Science (31), on the entertainment industry's attitude toward tie-in novels, and why there haven't been more project like the Kotzwinkle novelisation of E.T.: "The only reason Ordover & other people in the industry could come up with was because *TPTB don't want to*. They don't want the books to be important, they don't want the novelists to be respected and highly-paid, they don't want tie-ins to have a life of their own. They want them to be dependent and secondary. They also don't want to take any risks or have any uncertainties: they want to be able to predict how much money a book is going to make."

I think you're giving the entertainment industry too much credit for having coherent opinions about tie-in novels. They blow deadlines, wait until the last possible moment to okay stuff, and show no interest in the book's success, when none of the issues you've mentioned are in play. I think it's caused by some kind of Hollywood structural stupidity that can't be divined by persons outside that industry.

Jo Walton (40), I think this would be best addressed by making you the standard example of an author whose work ought not be used for fanfic.

Is anyone else willing to go in on this idea?

The question to me is, is there any particular reason why the copyright on a movie should be longer than the patent on a medicine?

Patents protect functionality. If you do this and this then that and that, then something will happen. That process is what's protected by patent.

Patents HAVE to protect functionality, because it is rewarding people for discovering different functions that are able to be used in the world. light bulbs, telephones, etc.

Because they protect functionality, patents are an extreme monopoly. Compare this to copyright which protects only a particular expression of an idea. Under copyright, I could come up with a new expression of one of your ideas and wouldn't violate your copyright.

Because they are an extreme monopoly, it's far easier to recoup the expense of research and development in a 20 patent term.

If someone patents the telephone, then you have to buy the telephone from them. Patents do not allow anyoen to implement the same functionality.

If someone writes a great movie, anyone else can write a movie based on the same princicple and not violate copyright. Note the cycles that movies or novels go through where everyone wants to read about pirates, or the fad is movies about airport, airplane, ship and skyscraper disasters, or the burst of Harry Potter types, or whatever.

If you patent a new telephone, anyone who wants that functionality must pay you. If you copyright a pirate story, anyone else can write a complete new pirate story and not violate copyright.

The other reason patents haven't crept up in term lengths is because they are so pervasive in our consumer economy, and they are so a requirement to build the next generation of technology, that all the players understand that a patent term of 40 or 50 years might as well be infinite.

I don't think the copyright industry works the same way. Copyright works aren't usually built as a conglomeration of more and more previous works all of which are distinctly taken from specific copyrighted works. Copyrighted works are more built along the lines of "20 basic plots" and "20 basic characters".

The number of patented things in your laptop is massive, and required to make an interesting laptop. So long patent terms directly slow down progress in a measurable way.

The number of copyrighted expressions in your latest Harry Potter book is pretty small. It isn't a many-into-one kind of funnel.

Interestingly, one place where long copyright terms has a direct impact is on cover songs. You make a song that is popular, other bands want to do a cover and release their version of your song and sell it. Rather than allow copyright terms lock out cover tunes for a century or so, congress came up with the idea of a "compulsory license" specifically for making covers of songs. If you want to make a cover song of someone else's work, you pay a fixed rate, and you get the right to do a cover. And they can't stop you or demand more money.

But as far as patents, its a very intense, many patents form the next big device, sort of arena, so long terms would noticably slow down the rate at which new technology is put into your home.

Teresa 57: Is anyone else willing to go in on this idea?

Sounds good to me.

TNH @ 59, sounds reasonable; people are tired of Anne Rice, anyway.

Me, I'll stick to writing Jossverse fic, where the lines of acceptance are clear.

Oh- and about disclaimers: mine are terrible, I know, especailly since I tend to acknowledge the actors who embody the characters I write about. I'm sure that violates some legal or moral boundary, but I know nothing of Angelus/Angel as he is written, only as I have seen him played by David Boreanaz.

(Kneejerk pedantry: it's "sound bite", not "sound byte". Thank you.)

CE Petit is covering most of the ground here, but I'd like to chime in on the issue of the disclaimers. They are, as TNH notes, apparently of little-to-no value, but besides politeness they may serve two purposes:

1: The noncommercial/nonprofit statements don't help in protecting you from findings of wrongdoing, but they very well may be helpful when getting to damages if things go badly and you are hied into court and found against.

2: Trademark. As discussed last thread (and touched on by CE Petit above), a lot of what we're talking about here is really trademark, and while you might not escape claims sounding primarily in dilution or tarnishment, large clear statements about who really has the rights to the various trademarks, symbols, mascots, representational images, etc. might shield one from claims sounding purely in traditional consumer confusion.

As far as I'm aware, no one has ever written (or, at least, distributed) fanfic based on Jo Walton's work. I assume this is because of her strong objection to it, as she certainly has as many fans as other authors for whom I have seen fanfic.

I don't think that the legal status of fanfic has any impact whatsoever on whether or not anyone would write fanfic based on the work of an author who doesn't want any written. Either fans will respect the author's feelings, or they won't.

Right now, given that most fic writers seem to believe that what they're doing is illegal anyway (and are happily writing away anyway), the only thing stopping them from writing stories based on Jo's work (or, say, Robin Hobb's) is respect. If all fanfic were to be unequivocally declared legal tomorrow, presumably the same amount of respect (or lack of respect) would still exist, and there would be no change in the amount of Jo Walton fanfic written or not written.

So for authors who absolutely don't want fic written, their best protection is not a law forbidding it, but to publicly state their feelings about it regardless of whether or not a law exists.

Right now, the uncertain legal status of fic seems mainly to prevent authors who DON'T have a problem with it from saying so, or to make them feel obliged to say that they're OK with it but they can't ever read any.

Patrick, I (unlike many of my fellow sharks) welcome nonlawyers' contribution to the IP/culture debate... as long as they conversely welcome ours, and don't dismiss "the lawyers' position" (which is even more to find than "successful cat-herder") as being merely technical. I certainly wish some nonlawyers had corrected Justice Souter's misdefinitions of "parody" and "satire" in 2Live Crew, and pointed out that if any form of literature deserves preference as First Amendment fair use it's satire, and not parody... at least as literary scholars understand those terms.

And I'm a bit too ill to deconstruct Macauley's second speech before Parliament at the moment; I'd just like to suggest that you read it in context with Sarjeant's proposal to start with, and then look at Macauley's non-Parliamentary speeches on publishing that were collected in an early 1990s book that's somewhere in the basement. My point is just that his perspective is a limited one, and depends upon unstated assumptions concerning who is doing the creative activity — assumptions implicitly rejected in Article I, § 8, cl. 8 of the US Constitution.

62 — Quasi-interesting bit of trivia: The older term for trademark disparagement is "tarnishment," which descends from the origin of trademarks as identifiers of origin used by silversmiths in the East End of London. Scholars are moving away from "tarnishment" and toward "disparagement" as the preferred term, although that's still percolating into practice.

Jo Walton (40)
Thank you for writing that, it never would have occurred to me that you would have* objected. I had previously dismissed the "no fanfic, please" perspective as ... well, I'd previously dismissed it without a lot of thought. And you made me think, so thank you.

And now a delicate question - if I feel compelled to write fanfic based on your stories, would you mind that, were you never to know it existed? Jotted down in my own journal, shown to my spouse, etc? The boundaries you spoke of seem to permit that. Or would it even be okay to go as far as to let knowledge that fanfic of your work exists somewhere in the world, but that it does not circulate?**

*I haven't written any fanfic on your stuff in any case. Oh, and Xopher, I'm thinking about you and your work as well.
**And I use circulate advisedly - I know that P/a/n/o/p/t/i/c/o/n/ er, The Eye of B/a/r/a/d/-/D/u/r/ Google sees all, and the the internet preserves most things for all time. There's no secrets, there, so posting fanfic online anywhere would be inconsiderate.

Charlie, I think we're pretty much in agreement that the perspectives of specialists and nonspecialists are both valuable. Anent that, thanks for your cogent points about why what arguably ought to be fought as "trademark" issues get dragged over into the "copyright" arena instead.

As for our other exchange, I don't think either Eric Flint or Teresa is claiming that Thomas Babington Macaulay was either a 21st-century free-culture advocate or a Madisonian democrat. Flint's claim is that the two speeches by Macaulay that he reprinted contain "all wisdom on the subject, an immense learning--and plenty of wit." You seem to be suggesting that Flint is wrong because Macaulay's "perspective" as demonstrated in other works by Macauley which you haven't quoted is somehow at variance with that piece of the US Constitution which charges Congress with the duty "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". You may be right--we can't tell without evidence--but it's irrelevant, because Flint's claim has to do with these two speeches, not Macaulay's work overall. And in these two speeches, far from claiming that "full-time producers of creative works, covered by copyright, will all be independently wealthy and/or 'kept' and/or the object of fawning patronage from the idle rich" (as you asserted), Macaulay in fact makes the opposite point; he goes out of his way to demonstrate that patronage corrupts the arts, and that for all its flaws, a copyright system is preferable. Nor does Macaulay say anything in either speech that discernably contradicts the US Constitution's instructions to Congress regarding copyright. Yes, I'm aware that the philosophical underpinnings of British and European copyright law are in some ways different from the bases of similar laws in the US. That hardly means that Macaulay's arguments, explicitly grounded as they are in social practicality rather than philosophical purity, are irrelevant to us. Quite the very damn definite bloody opposite, I should think.

So why are you insisting on the point? Nobody's arguing that Macaulay was someone we'd all agree with about everything. Flint reproduced the two speeches because they comprise a powerful argument directly related to issues which are in contention today. The subject of this conversation is those issues, not the overall philosophical outlook of Thomas Babington Macauley. From here, and I say this in a friendly way, it looks like what you're doing is "throwing FUD," trying to make people with less knowledge of legal and legislative history feel like they ought not trust their common-sense perception that what Macaulay is saying in those speeches is powerful and true. But what he is saying is powerful and true, and it goes to the heart of our discourse about so-called "intellectual property."

Does Lincoln's Second Inaugural have less power because we know that Lincoln had some racist views? Does Lincoln's famous disdain for membership in any church make less stunning his observation that "If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him?" It most certainly does not. And when Lincoln urges us to "strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations", do these words have less power and force for our knowledge that Lincoln made mistakes and believed some foolish things? May we not quote these words, revive them, bring them forward into the arguments of our day? Or shall we be told, as by our betters, that of course Lincoln's words are tremendously persuasive but obviously we shouldn't be too impres