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May 25, 2007

This is not about “intellectual property”
Posted by Teresa at 01:34 PM *

1. You should read Thomas Macaulay’s speeches on copyright.

These were conveniently quoted by SF writer and firebreathing blue-collar intellectual Eric Flint in Prime Palaver #4. Here’s Flint’s introduction:

These are two speeches given by Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out. They are, no other word for it, brilliant—and cover everything fundamental which is involved in the issue. (For those not familiar with him, Macaulay would eventually become one of the foremost British historians of the 19th century. His History of England remains in print to this day, as do many of his other writings.)

I strongly urge people to read them. Yes, they’re long—almost 10,000 words—and, yes, Macaulay’s oratorical style is that of an earlier era. (Although, I’ve got to say, I’m partial to it. Macaulay orated before the era of “sound bytes.” Thank God.)

But contained herein is all wisdom on the subject, an immense learning—and plenty of wit. So relax, pour yourself some coffee (or whatever beverage of your choice) (or whatever, preferably not hallucinogenic), and take the time to read it. The “oh-so-modern” subject of “electronic piracy” contains no problems which Macaulay didn’t already address, at least in essence, more than a century and a half ago.

I should note that Macaulay’s position, slightly modified, did become the basis of copyright law in the English speaking world. And remained so (at least in the US) for a century and a half—until, on a day of infamy just a few years ago, the Walt Disney Corporation and their stooges in Congress got the law changed to the modern law, which extends copyright for a truly absurd period of time. Which—those who forget history are doomed to repeat it—is a return to the position advocated by Macaulay’s (now long forgotten) opponent in the debate.

2. Packbat boils down Macaulay.

Packbat has summarized Macaulay’s speeches on copyright as five bulleted points:

The copyright is not an innate right, but a creation of human government.

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 prospect of income from a property a long time after one’s death is no incentive whatsoever to the creation of new works.

The probability that the persons for whom the author might have concern will own the copyright a long time after one’s death is minute.

The probability that the copyright owner might suppress the works, for whatever reason, is great.

Do make sure you read Packbat’s surrounding material.

The next two pieces are via The Lyorn’s Den.

3. Cesperanza: from Dear Fandom: Could You Please Stop Saying That?

I keep hearing fans say that they themselves think fanfiction is an illegal/infringing activity, and I don’t think that it is. There’s been no legal ruling that says that it is (and in fact, quite the opposite: whenever unauthorized literary rewrites or retellings have gone to court, they’ve been declared transformative, and these were for-profit works, not even our not-for-profit pleasure zone.) I think when/if fanfiction goes to court—if it ever does, which I don’t think it will—it will be declared to be transformative. There’s a huge difference between fanfic—where all the words are mine, that I put down in a unique order to convey a message that came out of my brain, even if the message is as simple as “Rodney and John are in love,” and something like music or video piracy, where the mp3 someone gives me is the exact thing that I would have paid for, and all mp3s of a song are identical. Now vidding is a trickier case, because the visual source is theirs and the music is theirs and the uniqueness is in the conjunction/editing, but even then I’m personally optimistic that the effort put into creating the unique message of the vid would be enough to get us a transformative ruling. And these arguments are being made right now about vidding and other forms of DIY filmmaking, by people who really do want to see this creative work legitimized. But fanfic—fanfic’s a much easier legal sell, IMO, and slash fanfic even more than gen (because the message is more transformative of the original source; i.e. I am rewriting and transforming work to better accord with my sexual orientation.) Now let me be clear when I say that the arguments I’m making are not about a right to profit, which I think is more complex (though not inconceivable; I think of Poppy Brite’s Beatles RPS novel Personal Jesus, for instance, or other literary rewritings like The Wind Done Gone, but never mind for now) but about our right to exist and write and share our work with each other as we’ve done for thirty-plus years now, and I don’t really think that’s legally assailable in any way.

…There has been no legal ruling on the matter. There’s a hella strong case for transformative use.

This race has not been called, and so IMHO we shouldn’t act like it has until it HAS.

4. Legionseagle on Keith DeCandido and amateur law.
It would, of course be disingenuous not to admit that this essay was inspired by kradical’s recent essay on the difference between fanfic and profic. And the first thing I would like to make clear is that I have no quarrel with kradical.

He has every right to express his opinion—indeed, from his perspective, in some of the areas where he works—tie-in novels—he is in one of the fields where fanfic does actually risk damaging his livelihood. That makes his opinion highly relevant. Mostly I do not subscribe to the view that fanfic damages profic—for reasons I expand upon below—but this is one area where, hand-on-heart I can say that I’m honestly, both as a lawyer and a fanficcer—definitely not sure. As to which, again, more below. …

[Omitted: remarks on the average quality of tie-in novels.]
I’m about to disagree violently and publicly with one part of his argument, but then, that’s my job. I’m a professional lawyer specialising in intellectual property law. You can, of course, claim I’m making this up, and that actually I’m a small cavalier King Charles spaniel called Hector living in Dortmund. As this is the internet neither us can prove anything one way or the other. But it will be simpler if you take on trust that I’m a professional IP lawyer living in England, just as I believe he’s a professional writer producing (inter alia) Buffy tie-in novels based in the US.

And now we get to the bit of his argument about which I feel strongly:

“First off, fanfic is illegal and profic isn’t. This is not an irrelevant concern—we’re talking about the theft of intellectual property.”
[Omitted: remarks on the complexity of the laws relating to fanfic.]
…I’m going to start by agreeing—mostly—with this part of his argument:
Secondly, profic has professional oversight. While it’s true that there are good fanfic beta readers and that there are bad tie-in editors (and also bad tie-in editing jobs, which are often due to circumstances beyond anyone’s control), in general, I’m going to trust the judgment of a professional in the field. Nine times out of ten, you’ll get a better result from the pro than the amateur (which is why you generally hire plumbers to fix your toilet instead of doing it yourself). And way too much of the fanfic I have read is so obviously unedited it makes my teeth hurt—and I’m not talking about typos and minor grammar mistakes, I’m talking about global writing problems that no pro editor worth her salt would let fly for half a second. …
Agreed. Pretty much completely agreed. … I’ve also got a lot of time for the point of view that says that there is some completely superb, spine-tingling, wonderful fanfic.

But I agree that in general and overall the average quality is generally higher in works which have had professional oversight.

[Omitted: remarks on the quality of some professionally published works.]
So, given we agree that the the professional is “superior” over the amateur any day, perhaps it might be nice if an amateur writer and a professional lawyer got to look at the statement
First off, fanfic is illegal and profic isn’t. This is not an irrelevant concern—we’re talking about the theft of intellectual property.
Bollocks, is my professional opinion of that.

The first thing this depends upon is the term “illegal”. One of the distinctions between the fan lawyer and the pro lawyer is that the pro lawyer is sensitive to precise uses of language. And “illegal” is a very sensitive word. …

[Omitted: recollections of an excitable client.]
The difference between tort—breach of private rights—and crime—commission of an offence designated as such by the State—is one of the key legal concepts which the pro lawyer understands and the fan lawyer does not—not unreasonably, given that a minimum of three years of undergraduate degree, a year professional training and one or two years on the job go to make a pro lawyer. Professional oversight, you see. Which means that we understand the difference between tort—a civil wrong—and criminal law. Fan lawyers often don’t. Which is why they come out with complete absurdities like “the theft of intellectual property”.

Pro lawyers also understand that laws are territorial in character. That is, they differ from place to place. What is illegal (ie contrary to criminal law) in one territory may be perfectly legal or even conceivably mandatory in another (about the only examples I can think of where things are mandated in one territory and forbidden in others relate to food additives, but quite conceivably other lawyers will come up with others).

[Omitted: a discussion of sodomy laws in the state of Georgia.]
kradical talked about fanfic being “theft” of intellectual property. I don’t think—for reasons I’ll explain below—that it’s generally true in the US, certainly not in the UK. But talking about legality needs caution. Are you a sex criminal? Very probably—under the law of Georgia.

All intellectual property rights are negative in character. That is; they are the right to forbid someone to do something which, without your possession of the right, would not be forbidden. So, conceptually and under English law the “theft” of intellectual property means “to permanently deprive someone of the right to deprive you of the right to do the acts circumscribed by the right”. Got that? No; I thought you hadn’t.

The basic point is that you cannot “steal” an intangible right. You can—given a following wind—deprive someone of all or part of the economic benefit appurtenant to a right, but where’s the fun in that? More to the point, one has to prove both the benefit and the loss. There is—possibly a relationship with tie ins, though I think tie-in authors would have difficulty proving that their loss of income was as a result of fanfic rather than …

[Omitted: further remarks on the average quality of tie-in novels.]
For all the reasonableness, ultimately things come down to economics. Which economic rights will the law protect?

Mostly, intellectual property is not primarily protected by the criminal law (there are some criminal offences of counterfeiting and the like. Fanficcers don’t do them through fanfic, though “fans” may do (the two groups overlap inevitably, though are not contiguous) eg sharing episodes not yet available in their area via peer to peer), which is why referring to things as “illegal” immediately distinguishes the pro lawyer from the fan lawyer. Fan lawyers cannot apparently draw the distinction between public law—the one where the public interest is key—and private rights. The infringement of public rights is a crime and the State is interested. The infringement of private rights is a tort, and the State isn’t interested in doing more about torts than giving its citizens access to a more-or-less functioning … court system to allow them to slug such matters out privately between each other.

Private rights—those one sues to protect—are the issue in most fanfic cases. The Law is not, in fact, interested in enforcing IP rights by and large, and people like MPAA who claim they are are lying to you (I am increasingly reaching the point of view that I will not go to movies until MPAA and its affiliates stop being idiots. Tonight at the cinema—after, I hasten to add, I had paid—there was a sign “Camcorders …are illegal. Odeon reserve the right to randomly body and bag search for the above items”. No, I’m sorry. “Reserve” implied they had the right in the first place. Well, they bloody don’t have it by the general law and if they were trying to get it by contract we were in before the notices came to our attention, so too flaming late, mate. Not that I was planning to record the film—and if they’d told me I couldn’t do that, I would have concurred. It’s just that I see a difference between someone saying ‘Please don’t take a camcorder into this theatre’ and someone shoving a latex-gloved finger up my arse to check I hadn’t put one there, and MPAA apparently don’t. It reminds me of a bar in Manchester—happily now defunct—which used to have a sign at the door saying “To ensure customer satisfaction customers may be randomly body-searched.” 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.]
…You can compare copyright infringement to trespass but not to theft. You might as well compare it to other criminal offences as to theft: “Fanfic is illegal. This is not an irrelevant concern. It is the keeping of an unlicensed slaughterhouse of intellectual property.”

Pro law has professional oversight. We are required to read books on law, pass exams, work with our peers. Admittedly, that still doesn’t stop a awful lot of pro lawyers sounding like muppets, but at least they’re trained muppets. I realise, of course, that I am not a published author of fiction. And that may make my views on the fanfic v. profic debate less valid than it would obviously be. But kradical is not an IP lawer. His views on that aspect of the debate are, by the same token, less valid than mine. In fact, I’ll make a fair offer. If professionally published writers will stop publishing (on the internet) absolute God-awful nonsensical bollocks about law, I’ll stop writing fanfic. Deal?

5. Me, on the wording of disclaimers.

This is my own nominee to the list of habits fanfic writers should break: I want them to stop sticking badly worded disclaimers onto their stories. The samples below are grouped by error. Nothing is implied by the fact that they’re all Joss Whedon-related. I arbitrarily used those because I already knew where to find them.

I. Who owns this story?

Sample disclaimers: None of this stuff belongs to me. :: Everything related to Buffy the Vampire Slayer or Angel is owned by Joss Whedon, Mutant Enemy Productions, FOX, UPN, and their partners. :: All things Buffy belong to Joss Whedon/Mutant Enemy. :: I don’t own anything, this is strictly for fun, Joss and someone else owns all this. :: Joss Whedon and Mutant Enemy own all. :: The usual. All belongs to Joss and Mutant Enemy, and naught to me. :: I don’t own anything. Joss owns it all, damn him! :: I own nothing.
Wrong.

The fact that a person or organization owns the copyright to a work doesn’t mean they own everything related to that work. It just means they have the legal right to keep others from making use of it. If some third party writes a new story which uses material covered by that copyright, the new story can’t be published or filmed or made into a game (unless the copyright holder grants them a license to do so.)

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.

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

The BtVS characters belong to Joss Whedon and associated companies. The story itself belongs to me.

None of these characters belong to me. Only the words do.

What’s Joss Whedon’s is Joss Whedon’s, and the same goes for Mutant Enemy; but what’s mine is mine, including the original elements in this story and the words I’ve used to tell it.

II. Noncommercial status

Note: I’m less sure of myself on the rest of these topics than I am on the question of who owns what.

Sample disclaimers: I do not own any of the characters in this story and make no money off them. :: I own nothing of Buffy and receive no profit from this story. All belong to Joss Whedon and Mutant Enemy. :: All original Buffy the Vampire Slayer and Angel the Series characters belong to Joss Whedon and ME (Mutant Enemy). I don’t own anything but the characters I create and the twisted plots these stories are set in. I’m not gaining any profit from these stories and no copyright infringement intended. :: None of these characters (with the exception of original ones) belong to me—I’m just borrowing them, and am making no profit from doing so. This story was created without permission as fan fiction, for entertainment purposes only.
As far as I know, that’s legally irrelevant.

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.

Saying “This is just for fun, I mean no harm,” may influence a kindly-disposed legal department to send you a letter telling you to knock it off, instead of sending a cease-and-desist to your ISP, but it has little or no legal standing.

III. Oddities

Firefly is the intellectual property of Twentieth Century Fox and Mutant Enemy. This original work of fan fiction is Copyright 2004 Distraction. There is no profit being made, so it’s protected in the USA by the fair use provisions of the Copyright Act of 1976.
Whoever wrote that disclaimer had studied the Copyright Act of 1976, but I’m not sure the fair use provisions do what she thinks they do. If Charlie Petit’s around, we’ll ask him what he thinks.
I do not own the characters used within this story, nor the lyrics to the songs I use. The characters belong to Joss Whedon, Mutant Enemy, etc. The songs belong to Sarah McLachlan and Will Jennings. Of the poems used within this story, the only one I wrote, is the one titled ‘If Only,’ which can also be found at this site. The poem Goodbye was written by Julia L., only a portion of it is used. She runs the Tangled in Destiny website, the poem Set it Free, does not belong to me, I got it off a collage someone sent to a list I subscribe to.
Acknowledgement is not permission. If you have permission, say so.

If you don’t have permission, consider not calling attention to the fact that you’ve used song lyrics. ASCAP’s a lot likelier to come after you than Hollywood. Even better, consider leaving the damn lyrics out entirely. I’ve seen maybe one in a hundred songfics that worked the way their authors intended, and those were parodies.

But before you do anything else, go and read Macaulay.

Comments on This is not about "intellectual property":
#1 ::: Greg London ::: (view all by) ::: May 25, 2007, 07:01 PM:

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

#2 ::: Nabil ::: (view all by) ::: May 25, 2007, 07:03 PM:

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

#3 ::: Greg London ::: (view all by) ::: May 25, 2007, 07:14 PM:

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.

#4 ::: Tracie ::: (view all by) ::: May 25, 2007, 07:15 PM:

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

#5 ::: Tracie ::: (view all by) ::: May 25, 2007, 07:17 PM:

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

#6 ::: JC ::: (view all by) ::: May 25, 2007, 08:00 PM:

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.)

#7 ::: Fragano Ledgister ::: (view all by) ::: May 25, 2007, 08:40 PM:

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

#8 ::: Jon Rosebaugh ::: (view all by) ::: May 25, 2007, 08:46 PM:

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.

#9 ::: Doctor Science ::: (view all by) ::: May 25, 2007, 08:48 PM:

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.

#10 ::: Doctor Science ::: (view all by) ::: May 25, 2007, 09:06 PM:

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.@.@

#11 ::: Kathryn Allen ::: (view all by) ::: May 25, 2007, 09:12 PM:

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.]

#12 ::: Michael R. Bernstein ::: (view all by) ::: May 25, 2007, 09:17 PM:

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.

#13 ::: Greg London ::: (view all by) ::: May 25, 2007, 09:17 PM:

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.

#14 ::: Teresa Nielsen Hayden ::: (view all by) ::: May 25, 2007, 09:32 PM:

*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.

#15 ::: Greg London ::: (view all by) ::: May 25, 2007, 09:40 PM:

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?

#16 ::: Jack ::: (view all by) ::: May 25, 2007, 10:33 PM:

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.

#17 ::: Kathryn Allen ::: (view all by) ::: May 25, 2007, 10:50 PM:

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 :)

#18 ::: Bill Leisner ::: (view all by) ::: May 25, 2007, 10:57 PM:

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.

#19 ::: sara ::: (view all by) ::: May 25, 2007, 11:10 PM:

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.

#20 ::: Teresa Nielsen Hayden ::: (view all by) ::: May 25, 2007, 11:18 PM:

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

#21 ::: Norman Gerre ::: (view all by) ::: May 26, 2007, 12:11 AM:

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.

#22 ::: Another Damned Medievalist ::: (view all by) ::: May 26, 2007, 01:28 AM:

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.

#23 ::: Aurelian ::: (view all by) ::: May 26, 2007, 01:32 AM:

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?

#24 ::: Bruce Baugh ::: (view all by) ::: May 26, 2007, 02:02 AM:

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.

#25 ::: Clifton Royston ::: (view all by) ::: May 26, 2007, 02:29 AM:

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.

#26 ::: Kathryn Allen ::: (view all by) ::: May 26, 2007, 04:39 AM:

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

#27 ::: Daniel Martin ::: (view all by) ::: May 26, 2007, 05:07 AM:

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.

Note a few things about this:
  • 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.)

#28 ::: Alan Hamilton ::: (view all by) ::: May 26, 2007, 05:24 AM:

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.

#29 ::: Dave Bell ::: (view all by) ::: May 26, 2007, 06:01 AM:

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.

#30 ::: Dave Bell ::: (view all by) ::: May 26, 2007, 06:02 AM:

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.

#31 ::: Doctor Science ::: (view all by) ::: May 26, 2007, 06:04 AM:

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.

#32 ::: Peter Erwin ::: (view all by) ::: May 26, 2007, 06:17 AM:

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.)

#33 ::: Doctor Science ::: (view all by) ::: May 26, 2007, 06:43 AM:

@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.

#34 ::: Ursula L ::: (view all by) ::: May 26, 2007, 08:00 AM:

#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.)

#35 ::: cyrusdaku ::: (view all by) ::: May 26, 2007, 08:56 AM:

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.

#36 ::: cyrusdaku ::: (view all by) ::: May 26, 2007, 09:08 AM:

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.

#37 ::: Joel Polowin ::: (view all by) ::: May 26, 2007, 09:46 AM:

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.

#38 ::: Xopher ::: (view all by) ::: May 26, 2007, 09:52 AM:

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.]
If there's a jurisdiction where sodomy is mandatory, I'd like to hear about it. Possibly even vacation there.

#39 ::: legionseagle ::: (view all by) ::: May 26, 2007, 10:07 AM:

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.

#40 ::: Jo Walton ::: (view all by) ::: May 26, 2007, 10:19 AM:

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.

#41 ::: Neil Willcox ::: (view all by) ::: May 26, 2007, 10:19 AM:

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.

#42 ::: Xopher ::: (view all by) ::: May 26, 2007, 10:29 AM:

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.

#43 ::: Xopher ::: (view all by) ::: May 26, 2007, 10:30 AM:

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

#44 ::: Julia Jones ::: (view all by) ::: May 26, 2007, 10:53 AM:

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.

#45 ::: Stephen Frug ::: (view all by) ::: May 26, 2007, 11:08 AM:

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

#46 ::: Lizzy L ::: (view all by) ::: May 26, 2007, 11:10 AM:

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.


#47 ::: C.E. Petit ::: (view all by) ::: May 26, 2007, 11:26 AM:

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.


I do not defend all aspects of the intellectual property system, particularly as it has been implemented. There's a big difference between draining a little excess from A Tale of a Tub and throwing the baby out with the bathwater, though. For example, we could try actually enforcing antitrust law against oligopolist/monopolist transferees of intellectual property, like Disney (see Air Pirates).

#48 ::: Xopher ::: (view all by) ::: May 26, 2007, 11:29 AM:

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.

#49 ::: ethan ::: (view all by) ::: May 26, 2007, 11:41 AM:

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.)

#50 ::: Joel Polowin ::: (view all by) ::: May 26, 2007, 11:43 AM:

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.

#51 ::: Bruce Baugh ::: (view all by) ::: May 26, 2007, 11:50 AM:

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.

#52 ::: Xopher ::: (view all by) ::: May 26, 2007, 11:57 AM:

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

#53 ::: C.E. Petit ::: (view all by) ::: May 26, 2007, 12:08 PM:

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.

#54 ::: C.E. Petit ::: (view all by) ::: May 26, 2007, 12:19 PM:

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.")

#55 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 26, 2007, 12:22 PM:

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.
Please explain to me how this is different from your own observation that copyright laws "are the worst way of encouraging the production of creative and progressive works, except for all the others."

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.

#56 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 26, 2007, 12:27 PM:

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.

#57 ::: Teresa Nielsen Hayden ::: (view all by) ::: May 26, 2007, 12:41 PM:

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?

#58 ::: Greg London ::: (view all by) ::: May 26, 2007, 01:10 PM:

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.

#59 ::: Xopher ::: (view all by) ::: May 26, 2007, 01:14 PM:

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

Sounds good to me.

#60 ::: JESR ::: (view all by) ::: May 26, 2007, 01:24 PM:

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.

#61 ::: Wim L ::: (view all by) ::: May 26, 2007, 01:52 PM:

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

#62 ::: BSD ::: (view all by) ::: May 26, 2007, 02:03 PM:

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.

#63 ::: Rachel Brown ::: (view all by) ::: May 26, 2007, 02:20 PM:

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.

#64 ::: C.E. Petit ::: (view all by) ::: May 26, 2007, 02:22 PM:

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.

#65 ::: Kimiko ::: (view all by) ::: May 26, 2007, 02:59 PM:

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.

#66 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 26, 2007, 03:19 PM:

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 impressed by him because they depend on an unstated premise that you aren't actually demonstrating?

Come on, Charlie. I think the world of you, but this is the sort of thing that makes people blow their stack about lawyers. It feels like you're not arguing the merits, you're trying to handwave the power of Macaulay's rhetoric out of the room, and it's not fair and it's not right.

#67 ::: BSD ::: (view all by) ::: May 26, 2007, 03:23 PM:

#64: I was educated using the term "tarnishment" as recently as 2005. My recollection of disparagement is in the patent context -- it is inappropriate, in an application or other communication to the office to disparage another's invention or device.

#68 ::: Doctor Science ::: (view all by) ::: May 26, 2007, 04:27 PM:

#34: Ursula, the one kind of fanfic that is *certainly* protected under current American law is what you call "anti-fanfic": parody. Parody and criticism are both explicitly protected forms of interaction with a copyrighted text.

It seems counterintuitive, but there it is: scorn and hatred are protected, love for the text is not. I don't know if that's because the framers of the laws think scorn and hatred need protection, but love does not, or because love is more threatening to the creator.

#69 ::: C.E. Petit ::: (view all by) ::: May 26, 2007, 04:42 PM:

Patrick, I really am too ill to go into detail here, but let's look first at one phrase out of Macauley's speech: "men of letters." What, exactly — or even approximately — does that mean? It's not at all apparent from the two speeches in question; it becomes a little bit clearer when one compares his speeches to Sarjeant's proposal (that Macauley was opposing). It doesn't hurt to remember that "Parliament" was an even-more-social-class restrictive body in the 1830s and 1840s than it is now.

Literally, of course, part of the problem is that Macauley (and, for that matter, virtually everyone else) considered that copyright applied only to words in print. Reasonable reproduction of fine art was virtually unheard of, except perhaps for hand-made forgeries; copyright theory had not advanced to the point of distinguishing between a musical composition and a performance (that didn't really start until the late 1850s), with all that implies; TV and film didn't exist, and drama was only marginally recognized as copyrightable subject-matter; photography had not yet made its way outside of the Royal Society's internal debates. In short, the only expressive, creative work that Macauley and his contemporaries considered in danger of copying was words on paper. In turn, this implicates the proportion of society that was literate enough to care about reproducing words on paper, let alone literate enough to do so themselves.

More tellingly, "men of letters" was a commonly used designation for a social subclass — the educated elite with sufficient leisure to write. Though Macauley is kindly saying that men of letters should be able to earn from their writings, it simply defies linguistic convention to believe that — without more, and the more simply isn't there — he intended to include other forms, other persons, other methods of production in his position. (That this is consistent with his later tirades concerning alleged thefts of his own work is beside the point.)

Then, too, I don't think Macauley's position involves corrupting the arts, but corrupting the men of letters. That's definitely open to argument; the kind of genial argument that occurs in faculty clubs shortly before the angels on the head of a pin get enumerated, but an argument nonetheless. Again, this is perhaps most apparent when reading Macauley's speeches alongside of Sarjeant's.

That's just the "men of letters" issue. I implore y'all to read not just Macauley's two speeches, but the material to which he was responding. Otherwise, it's all too easy to construct a straw-man opponent for Macauley that makes Macauley's position seem a great deal more attractive in today's social environment than it really deserves.

Perhaps my objections were a bit florid. My point is that Flint's interpretation of Macauley itself overstates what Macauley was saying, particularly when looking at the context of Macauley's speeches. Look at a converse of your invocation of Lincoln's Second Inaugeral: Can we deny that The Triumph of the Will is a great, and even artistic, piece of documentary filmmaking merely because it was in the service of something reprehensible? No, we can't. Simultaneously, though, we can't ignore the avowed, explicit context. For the same reason, ignoring an implicity context can lead to less-than-optimal interpretations.

#70 ::: Doctor Science ::: (view all by) ::: May 26, 2007, 04:51 PM:

#40 Jo Walton:

First, I have dropped by the usual suspects, and there doesn't seem to have been any Tooth and Claw or Farthing fanfic posted to the most likely fanfic communities, as yet.

If you want to make a public statement asking people not to post fic based on your works, it will probably work, up to a point. [that point is filming -- see (3) below]

Issues you might want to consider include:

1) Is the sandbox you want people to keep out of made up of your characters, or your worlds? (see #50)

2) Would it matter if the story was explicitly labelled "AU", for "alternate universe"? What about crossovers?

3) If one of your works is filmed as a movie or TV series, fanfic *will* appear based on the filmed material. That goes triple if Orlando Bloom is in it. (yes, it boggles the mind, but Bloom as David in Farthing still wouldn't be the worst casting in history.) This is not a threat, it is a scientifically-based prediction.

4) Does it make a difference if the series is one you've finished writing? (e.g. King's Peace)

#71 ::: Nona ::: (view all by) ::: May 26, 2007, 04:58 PM:

Huh. I suspect I'm the wrong person to have an opinion about this, since I've yet to be published (apparently publishing requires actually *finishing* something you've written, which is where I tend to fall down), but I can't imagine being hurt or upset at any fan's differing take on my characters (should I be so lucky as to get fans).

Well, no, wait. I can definitely see myself stumbling across an interpretation that is, to my mind, hideously wrong, and having to clamp down very hard on the urge to correct it. But even that wouldn't affect the versions of my characters that live in my head. And that's what they are: versions. Once I let them out, everyone who reads about them gets their own, and I don't get to decide what they do anymore.

Possibly I've taken the death of authorial intent a little too much to heart. I think I'm okay with that, though.

#72 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 26, 2007, 05:04 PM:

Oh, for crying out loud, Charlie. We're not arguing about Macaulay's class assumptions; we're discussing some modern issues which turn out to have been very interestingly analyzed, over a century and a half ago, in two speeches Macaulay made to Parliament.

Of course he had an elitist notion of "men of letters." And defenders of modern maximalist ideas of copyright often predicate their position on an overblown notion of the exalted unique wonderfulness of the heroic, autonomous Artist. So what. At issue is the issue, not Macauley. You're jumping back and forth between the the modern argument and Macaulay's biography, arguing one or the other as it supports your position. This is "heads I win, tales you lose."

The issue is us and our times, not what Macaulay "deserves." Macaulay is dead. What he "deserves" doesn't matter. His words are alive, and make points which are good because they're true. Copyright is a monopoly. It's better than any other solution to the problem, but we shouldn't let that fact blind us to the knowledge that it's as prone to the well-documented ills of monopoly as any sweetheart corporate charter or expropriative railroad grant. Jim Henley has a habit of reminding his fellow libertarians, many of whom tend to shed all their skepticism about the State as soon as war is declared, that "Hayek does not stop at the water's edge." Similarly, the ills of monopoly--as memorably documented by, for instance, Adam Smith--don't stop being ills just because we've decided that a grant of monopoly is the best of a poor set of options. What any of this has to do with the fact that Macaulay was a nineteenth-century gentleman, with many of the typical views of that breed, I'm sure I don't know, and I don't think you do either.

And by the way, I think Triumph of the Will is indeed overrated. We've learned things about ourselves, as humans, which make it far less effective than it probably was in its time. Part of how we've learned those things is from our experience with the people to whom Leni Riefenstahl tied her star.

#73 ::: Robin Z ::: (view all by) ::: May 26, 2007, 05:05 PM:

(Packbat here – glad my summary was helpful!)

Sorta-replying to C.E. Petit: if trademark tarnishment is the more important objection to fanfic, then what should fanfic writers be doing to avoid it? Would disclaimers along the lines of the (relatively pointless) ones criticized above be helpful?

#74 ::: Clifton Royston ::: (view all by) ::: May 26, 2007, 05:57 PM:

Jo, I too think there's a tendency among fans, however nutty they may be, to respect authors' wishes when they're clearly and strongly held, especially on those aesthetic grounds.

One example that pops to mind is from the comic/manga world. Normally characters in the manga world end up in fan comics having insanely perverse things done to them. Fred Gallagher of 'Megatokyo' has said words to the effect that if any of his characters start appearing in fan art, particularly if that happens to any of his female characters, he's going to quit doing the strip. AFAIK, that's been respected. (Of course, I could well be proved wrong...)

#75 ::: Stephen Frug ::: (view all by) ::: May 26, 2007, 06:01 PM:

72: And by the way, I think Triumph of the Will is indeed overrated. We've learned things about ourselves, as humans, which make it far less effective than it probably was in its time

I watched the entire thing for a history class some years back, and actually found it dull beyond description. I mean, even apart from knowing what its subjects really stood for & what came of their rule, etc, it was simply very hard for me to see how it would have been good propoganda. Someone in the class (the prof? another student? I don't recall) said that it was in part a language issue: the rhetoric was very effective in German, the subtitles, well, weren't. But I'm sure another part of that is what Patrick was describing.

I know this is off topic, but since it was brought up & all, I'm sort of curious if anyone else has seen it and what they thought...

#76 ::: FranW ::: (view all by) ::: May 26, 2007, 07:31 PM:

Call my a cynic, but with regards to fanfic writers abstaining because a particular author (such as Jo Walton) says they really, really don't want fanfic written for their stories/characters/worlds, I'm not sure how much of it is respect and how much of it is fear of lawsuit. I think that Jo's "no fanfic" edict might be read by fanfic writers as having the subtext of "and if you do, my lawyer will come kick your ass." There's a difference between fanfic writers not writing stories because they respect the original author's wishes, and writing the stories but making sure they're not available where the original author (or her lawyer) could find them.

#77 ::: Bruce Cohen (SpeakerToManagers) ::: (view all by) ::: May 26, 2007, 07:43 PM:

Stephen Frug @ 175

I hope this doesn't go too far OT, but people do seem to be fascinated by the Triumph of the Will, often more for what it represents than what it actually is.

Late 20th and early 21st century Americans and other non-Germans don't find the film convincing because (IMO) the cultures are sufficiently different that the style and other cues that are intended to emphasize and reinforce the propaganda don't have the same resonances as they do for early 20th century Germans. Film is a powerful propaganda medium because it has so many knobs that can turned to control the way viewers react to the images and ideas they are presented. By the same token, to get the maximum effect, the filmmaker has to tune the cues to match the audience; an audience with different tunings won't get the message as well, or may even get a different message.*

This sidelight actually does relate to the main topic, now that I think about it. Someone who owns rights to a character or story has a problem if they intend to keep those rights for more than one or two generations: the little details in the character design or the story text that conveyed an interesting message to the original audience may not be effective with a later audience, making the property less valuable. So there's a pressure to change the details while keeping the trademark and the branding of the property in some sense "the same", both for legal and for marketing (brand recognition) reasons.

This is why Disney, for instance, has been re-inventing some of its characters**, and why we can expect to see more of that as IP owners try to extend the economically useful life of their property to match the period of legal protection they're demanding.

* Consider how modern audiences react to early films that moved and persuaded the original audiences: often with laughter and scorn.

** As has been pointed out, Pooh is their most valuable property, and the one they've tinkered the most with over time.

#78 ::: C.E. Petit ::: (view all by) ::: May 26, 2007, 07:47 PM:

Patrick, I think we've got a fundamental historiographic disagreement here... and it's a matter of choice, not "I'm right and you're wrong" (for either of us).

On the one hand, there's the argument that Macauley's rhetoric anticipates a contemporary concern. In one sense, that's a decent argument; after all, we don't get from point A to point B very often unless/until someone has thought of point B. In another sense, though, it's an irritatingly common application of hindsight bias.

On the other hand, there's the argument that Macauley's rhetoric is significant only in the sense of what Macauley most probably (not necessarily did) meant, based on the linguistic and social constraints he was under. In one sense, that's also a decent argument; after all, look at all of the ridiculous "reinterpretations" of 18th- and early 19th-century literature done by the Marxist structuralists in the 1980s for an excellent example of why those constraints matter. In another sense, though, this method tends to make perceived constraints on expression and thought more rigid than they should be, and the constraints themselves are a form of hindsight bias.

I tend more toward the latter option in my reading of historical documents, particularly those in fields/areas with which I have done significant work with primary sources. That's not to say my interpretation is therefore infallible; it's only to say that's my bias.

And, in any event, to get back to the point I was originally making (one that largely got sidetracked here, however interestingly): Any set of comments on "characters," "settings," and "fan fiction" that restricts itself to copyright — indeed, any set of comments on works inspired by other works that restricts itself to copyright — is necessarily incomplete, and all too often misleading for significant instances.

#79 ::: Doctor Science ::: (view all by) ::: May 26, 2007, 08:05 PM:

Jo (and others):

fanfiction.net, the largest fan archive, keeps a list of authors/publishers who have expressly asked that fanfic based on their work not be archived. The current list is:

* P.N. Elrod
* Raymond Feist
* Terry Goodkind
* Laurell K. Hamilton
* Robin Hobb
* Dennis L. McKiernan
* Robin McKinley
* Irene Radford
* Anne Rice
* Nora Roberts/J.D. Robb
* Archie comics

Info on how to contact them and get yourself put on this list is in their TOS (I think they need a letterhead letter or a signature). This is a particularly important list because FFN is especially popular with teenagers and pre-teens, who are (by their very nature) otherwise clueless.

#80 ::: Kimiko ::: (view all by) ::: May 26, 2007, 08:47 PM:

Clifton Royston, (74)
...Fred Gallagher of 'Megatokyo' has said words to the effect that if any of his characters start appearing in fan art...he's going to quit doing the strip. AFAIK, that's been respected. (Of course, I could well be proved wrong...)

I think some hentai-ish fanart has surfaced, but it has been largely shouted down by the horde of core fans, and it certainly hasn't made it's way where Fred has seen it.

This is the quote you are looking for(?):

I don't have control over what fans do. If you must know, i encourage things like fanart, fan fiction, and even use of MT characters in people's own comic works. The only think that i ask is that you treat the characters with the same respect that you would treat real people. Why won't you see Kimiko naked? Because it would comprimise the character's integrity for the sake of a small moment of perverse release.
Context is everything, of course. A regular feature of the Megatokyo forums are "rescripts" - the comic of the day with different text pasted in with a humorous, and often sexual twist.

#81 ::: Leva ::: (view all by) ::: May 26, 2007, 09:05 PM:

Regarding fanfic and authors who say 'no' -- for me, it is very much an issue of respect. Their world, they set the rules.

I *have* chosen to avoid writing fanfic in worlds where the author's said no. There's plenty of other authors who don't care. It's a big universe; I'll go find somewhere else to play.

In fact -- one of my favorite authors, and a woman I respect a great deal for a variety of reasons, has said 'no fanfic without a release and only in authorized fanzines' and she's indicated that there should be none on the internet. Her fans often ignore this, and there's plenty of fanfic available on the internet anyway based on her worlds. Myself, I wrote fic for an authorized fanzine, which promptly folded. Three 30K +/- word novellas ... months worth of work and revisions and polishing and then no place to put them.

*shrug* They'll never see the light of day even if they're among my favorite of my fanfics, unless I can find a 'zine that will take them someday.

I *could* sneak them out onto the 'net under a pseudonym, but I'm honest, and I won't.

And I'm not the only fanwriter, by far, with this sort of ethic. If you're writing fic, it's just basic good manners to follow the world creator's wishes.

#82 ::: Kimiko ::: (view all by) ::: May 26, 2007, 10:12 PM:

Oh, hello. I just realized. It never occurred to me that naming one's avatar* would be a problem, but under the trademark theory of fanfic-as-infringement, that might be a problem, yes? I named myself after one of Fred's characters, after all.

I suppose that may also prove problematic to the child named Logan.**

*user name, screen name, email account, IM login, forum name, BBS handle, etc.
**mid-1990s, I believe, parents were fans of Wolverine(tm)

#83 ::: Doctor Science ::: (view all by) ::: May 26, 2007, 11:09 PM:

#30 -- "moral right of the author"

#54 -- "the patron [e.g. Paramount] is defined as the author"

There's a logical conflict here, even if there isn't a legal one.

Humans (and possibly other sentients) have moral rights. Non-humans (e.g. corporations) do not.

The great majority of fanfic writers will recognize the human feeling behind Jo's dislike of fanfic, and are prepared to respect them. She's a real person, she created her books from her own brain & blood, she has real feelings.

AFAIK the copyright to John M. Ford's How Much for Just the Planet? (a particularly good tie-in novel) is currently held by CBS, after several decades of corporate fission, fusion, and incineration.

Fans will acknowledge that CBS has the legal copyright to the book, but not that it has any moral rights. CBS has no human feelings, the book did not come out of its brain, it is not a moral actor. CBS can threaten fans with Cease&Desist letters, but it cannot say, "this would hurt my feelings as a creator." Conversely, John M. Ford could have said, "I don't have the copyright to this book, but please ask me if you want to perform the songs," and fans would have respected that as his moral right. Ford was a moral actor, a human person; CBS is not.

The difference between author and copyright holder becomes most acute in the case of television shows. Regardless of who gets the credit in Hollywood, TV shows *have* no single creator, they are collaborative efforts. Showrunners, actors, scriptwriters, editors, camerapeople, set designers -- all contribute to what ends up appearing onscreen, and none of them is in complete control. There is no one person who can say, e.g., "I created Captain Kirk, everything that you know of him came from my brain, if you distort him you hurt my feelings, I know him perfectly and you don't."

For legal purposes, a TV show has an author, a creator. For moral purposes, there is no-one who has "the moral right of the author".

#84 ::: BSD ::: (view all by) ::: May 26, 2007, 11:11 PM:

#73: I'm not CEP, but I can reasonably theorize (THIS IS NOT LEGAL ADVICE, I DO NOT CLAIM TO BE A LAWYER IN ANY JURISDICTION AS OF 5/25/2007), as noted in my previous comment that:

Disclaimers, as they indicated that the author of the fanfic is not in fact the author of the original work can, by preventing consumer confusion (Reader Doe believing that "Harry Potter and the Remarkable Octopus" was written by JKR or her designees), protect one from trademark actions based upon such confusion (possibly). Tarnishment, however, can result when the mark's use is clearly not indicating origin, but rather where the content or context are something the owner would rather not be associated with (or could be harmed by association with) -- "Draco Does Devonshire" would, no matter the disclaimer, arguably effect the reader's later perceptions of young Mr. Malfoy in a manner that one could conceivably view as negative or, at the very least, incompatible with the owner's use of the mark.

#85 ::: Doctor Science ::: (view all by) ::: May 26, 2007, 11:29 PM:

#84 -- But isn't "tarnishment" given explicit protection, under the name of "parody"?

#86 ::: T.W ::: (view all by) ::: May 26, 2007, 11:42 PM:

The legal nitty gritty back and forth makes me queasy.

Sometimes I wonder if I am the only one raised with the ethic that is just plain lazy and selfish to use some one else's work instead of coming up with your own.
My internal artistic honour code says fanfic is a cheat, plain and simple. Whether it's a fair cheat depends on the rules of the game.

Doctor Science, #68
I would think that if you truly loved the text it would be unconditional, as is, and not change it to what you want it to be. I think lust would be a better term for the emotion fanficers have for text, a compulsive need to scratch an itch and sate a hunger.
Hate is not a good one for parody either because people do not parody what they can not stand, that would be critical satire. Parody comes out affection even if it's rather backhanded.

#87 ::: C.E. Petit ::: (view all by) ::: May 26, 2007, 11:43 PM:

85 — Dr Science, you're mixing things up. Parody is treated differently under trademark and for copyright law. Keep in mind, too, that "parody" means something different in law than it does in the real world of literature.

And then there's the question of what disparagement of a mark really means. Technically, disparagement acts not against the mark per se, but against the property or service that is identified by that mark. Thus, portraying Captain Kirk as a swaggering tin-plated dictator with delusions of godhood (and I mean for real, not just in the words of a half-drunk Klingon) acts against the property identified by that mark — Star Trek. Of course, the fun is just starting... and so are the legal bills...

#88 ::: Bruce Baugh ::: (view all by) ::: May 27, 2007, 02:05 AM:

T.W., that was a very unpleasantly provocative way of putting your preference, and also excludes some important stuff. You are in this very thread using other people's stuff: orthography, vocabulary, grammar, imagery, moral concepts. Taken at face value, you're denouncing scripture, fable, parable, historical fiction...are you sure this is the ground you want to fight on?

Jo, I wanted to add my voice of appreciation, precisely because my feelings about the characters and stories I've created is so wildly different from yours. But when you write it out, I can see what you mean and understand why you feel it, even though it's so far from me. That's a great service. Thanks.

#89 ::: Ken MacLeod ::: (view all by) ::: May 27, 2007, 03:53 AM:

C.E.Petit #69: More tellingly, "men of letters" was a commonly used designation for a social subclass — the educated elite with sufficient leisure to write.

PNH # 72: Of course he had an elitist notion of "men of letters."

I had a notion that that wasn't quite right, so I looked again at Macaulay's essay on Samuel Johnson (available (PDF) here) and indeed, it wasn't right. On his account, the way of life of a 'man of letters' between the decline of patronage and the rise of popular literacy was not that of a gentleman of leisure or man of means. As far as I can see, 'a man of letters' was just an ornate phrase for 'writer' and could very much include a starving scrivener and Grub Street hack. And copyright, to return to topic, was for Macaulay an expedient to secure writers, as far as possible, from the sort of desperate and degraded life that a writer faced in Johnson's youth.

#90 ::: Bruce Baugh ::: (view all by) ::: May 27, 2007, 04:25 AM:

Interesting, Ken. And even if you're wrong, you provide me a handy hook for a point I was wanting to make: redefining the recipients of benefits into more expansive categories is one of the basic moves in the game of liberal democracy. Thus it both matters a lot for some purposes that we understand how restrictive a reading to give words like "citizen" and in other ways doesn't at all, or at least the historical fact of narrow eligibility then doesn't compel us to respect and follow it now, unless we are being particularly rectocranially inverted examples of some kinds of conservatism.

Eric Flint's a sharp guy, and I assume he knows all this and is doing just what I would: taking a good principle and pointing out its relevant, and just discarding anything about who might be one of the folks at issue that reflects constraints he or I now see as irrelevant.

#91 ::: legionseagle ::: (view all by) ::: May 27, 2007, 04:43 AM:

With regard to C.E.Petit's comment 47 that the issue with regard to fanfic is in fact "trademark (passing off, reverse passing off, dilution, and disparagement)" I think this emphasises the point my essay was intended to bring out, namely that IP laws are territorial in scope and there are very wide differences between the rules that apply in different territories. For example UK Trade Marks Act 1994 defines infringement as

10.—(1) A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.

(2) A person infringes a registered trade mark if he uses in the course of trade a sign where because—

(a) the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered, or

(b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered,

there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark.

(3) A person infringes a registered trade mark if he uses in the course of trade a sign which—

(a) is identical with or similar to the trade mark, and

(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered,

where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.

The repetition of "in the course of trade" is intended to distinguish commercial from non-commercial uses (broadly speaking - commercial should not be equated with "for profit"). In this context, therefore, under English law, Fanlib are batting on a sticky wicket, but the individual writer of fanfic - so far as trade mark is concerned - is not, and the standard form of disclaimer can be seen both as the denial of a commercial trading purpose and, in the case of unregistered rights such as passing off, care to avoid "confusion" which - again in English law - is at the heart of the action for passing off.

I was concerned that the Trademark Dilution Revision Bill in the US might have made a difference - at least in its earlier drafts - to this insistence on there being a trading purpose but had believed that the changes made in its passage through Congress had preserved uses of trademark in non-commercial contexts. It would seem from the above that my earlier concerns were justified.

The implications, if the laws of the two nations are now so dramatically different, are very worrying for all authors and not merely fanfic authors. Trademarks, if protected properly and renewed, are perpetual - UK trade mark number one is still on the register (it's Bass Brewers' red triangle). It strikes me that people are going to have to take care not to disparage trade marked products in fiction - for example, checking the USPTO register before reprinting a line like "The Gatling's jammed and the Colonel's dead" - if there's a risk that trade mark holders can bob up and sue for disparagement of their valuable IP.

40 : Jo, I think most fanfic authors are sensitive to strong opposition from specific authors to the use of their worlds in fanfic and don't do it; largely from courtesy but also because it blows arguments about "fair use", "implied licence" and waiver of moral rights completely out of the window.

#92 ::: Dave Bell sees a Godwinism. ::: (view all by) ::: May 27, 2007, 05:09 AM:

Oh dear.

And the guy who invokes Triumph of the Will is the guy who seems to struggle with Macualay's style.

Yes, I've seen Triumph of the Will. Maybe, being European, some of it makes more sense to me. The visuals can still crop up in recent movies. It's the image-source for the Nuremberg Rallies (and how about the KKK rally on Oh Brother, Where Art Thou?).

And throwing it into this debate just seems to muddy the waters.

Macaulay used rhetoric. Mr. Petit seems to be resorting to flashy courtroom tricks. Doctor Science picks up the point I made about the difference between author and copyright-holder. Mr. Petit just tells me that US law calls the copyright-holder the author.

Yes, a lot of people misunderstand the law. But, Mr. Petit, we're not a jury who has to sit silent and listen, all intellect winnowed out, pre-trial, by lawyers seeking advantage.

If we want to talk about Triumph of the Will, let's go somewhere else. Let's not spoil this discussion of copyright. Let's not let it turn into a lawyer's closing speech to a jury.

#93 ::: Dave Bell ::: (view all by) ::: May 27, 2007, 05:19 AM:

I can think of a few examples of how copyright can be used inappropriately, or other IP cases have been misdescribed as copyright enforcement.

Can't Disney use there trademark rights on the Mouse to control release of (hypothetical) out-of-copyright material?

Couldn't TSR have patented Dungeons and Dragons?

#94 ::: Peter Erwin ::: (view all by) ::: May 27, 2007, 06:15 AM:

Kimiko said @ 82:
Oh, hello. I just realized. It never occurred to me that naming one's avatar* would be a problem, but under the trademark theory of fanfic-as-infringement, that might be a problem, yes? I named myself after one of Fred's characters, after all.

Given that "Kimiko" is a perfectly ordinary female Japanese name, no, it's not going to be a problem, any more than someone calling themselves "Mickey" would have problems just because of the name.

I suppose that may also prove problematic to the child named Logan.**

Again, no. (It's more likely to be a problem for the child explaining to his/her friends why they have that name -- "What? You're named after a comic-book character?" -- though I suppose they could claim they were named after the Boston airport, or the 1970s film, or ...)

#95 ::: Dave Bell ::: (view all by) ::: May 27, 2007, 06:58 AM:

General John A. Logan

A General at Vicksburg and Atlanta, among others.

#96 ::: Jo Walton ::: (view all by) ::: May 27, 2007, 09:24 AM:

I can't respond to all of you who are asking politely if I mind if they write fanfic in worlds I'm not still actively writing or whatever, because it all sounds like "Do you mind being raped just a little bit?"

(My urge isn't to sue people who do it, it's to rend them limb from limb.)

I also don't want to be the poster child for someone who doesn't want fanfic, because look how polite and considerate these people are being to Anne Rice here.

"Not allowing fanfic? Puh-leeze" is going to be the response if I rely on respect. It would be like putting my email address on one of those spammer-run anti-spam lists. Oh, most fanfic writers are polite and respectful, but, like any "most" that also leaves a lot of others.

If copyright is there to encourage the production of art, I think fanfic really does have to be "forbidden unless there is permission" rather than "allowed unless expressly forbidden", unless you want fanfic instead of fiction from me and Ursula Le Guin and Megan Lindholm and other people who feel this way.

Which is your right and your choice.

I'm not reading this thread any more for my mental health -- thinking about this stuff puts me in a state of mind where writing is impossible, and I've already lost two days to it. Sorry.

#97 ::: kimiko ::: (view all by) ::: May 27, 2007, 10:07 AM:

I'm sorry Jo.

#98 ::: Greg London ::: (view all by) ::: May 27, 2007, 11:18 AM:

it all sounds like "Do you mind being raped just a little bit?"

Having watched Star Wars (Episode 4, A New Hope) when I was just a wee little boy, my friends and I ended up collecting a rather large collection of ships, action figures, and the thing every follower had to have, a flashlight light saber.

We then spent endless hours playing out all manner of scenes in the star wars universe. None of them accurate, and with no respect to accuracy. We were driven to do what we thought would be fun. I have a suspicion that this was similarly taking place in every other house that contained a fan of star wars.

I would assume that most of us simply wanted to put ourselves in the star wars universe in some way. Most of us were live action Gary Stu's and Mary Sues. Other times we possessed canonical characters, like Han Solo, and made him the full out pirate that he was, Chewbacca really did tear the limbs out of people, and Darth Vader, well, we couldn't make him any more bad-asser, so we mostly tried to do the walk, do the talk, and make the scuba breathing noise. Princess Leia disappeared from our reenactments because no one wanted to play her, and we weren't about to have a dolly act as stand in.

We didn't have one, but I'm sure the parents of some of these kids had a video camera and managed to record some of the less-violent productions put on. And such recordings may have even been shown around the family and friends circle.

The only thing we didn't do was then go and write it all down. But my view of fan fiction is that it's no different in motivation than the kid who wants to don the Darth Vader mask and kick some butt, or the kid flies a toy Millenium Falcon around and imagine himself a space pirate, or the kid who flies the toy Xwing fighter and imagines himself making the shot that destroys the deathstar and saves the galaxy (at least until the sequel).

If you don't want to permit fanfiction of your work, that would be within your right as author. I support that right on the basis that I don't know if the government could ever draw up a law that would allow whatever version is "harmless" while prohibiting anything that is "damaging", without getting as fuzzy as the whole "Fair Use means you have the right to be sued".

So, I'm for keeping the law simple, give all the rights to the author, and let them decide to what level they enforce it. And if they want to completely forbid it, fine. The case of the author getting sued by a fanfic writer accusing the author of stealing the fanficcer's story is enough to show that there are perfectly legitemate reasons to completely disallow it.

But with regard to the "rape" thing, I think there is some section of the population who writes fanfic for the same reason they play act out their own adventures in someone else's world. That for them, it's all good-clean fun.

I wonder if you would feel the same way if some kids acted out some completely non-canonical scenes based in your world. Han Solo not only shoots first, he goes on a murderous rampage because, well, because the kid playing him had three bowls of sugar for breakfast and he doesn't want to walk calmly out of the cantina, he wants to mow everyone down.

Not what Han, as written by Lucas, would do. But I hope you wouldn't feel raped by witnessing a kid playing out something equally out of character for one of your worlds.

The situation can get bumped up if one of the parents videotapes their kids acting out these scense and then replays it. once the expression is recorded in a fixed medium, it starts roaming into copyright territory. Maybe the kids show it to all their friends at school, even.

Then someone writes it down. Or maybe they skip the whole live-action part and go straight to text. I'm not sure if only the text version feels like rape to you, or if anything along the whole spectrum is a problem. Hopefully you can see the kids playing dressup as harmless and enjoyable. Maybe it's just when it gets written down that it becomes a problem for you.

I'm not saying that you should allow fanfiction. The issues of getting sued by a fanficcer and other potential legal entanglements can be problematic. They are real problems that each author has to decide how to deal with.

But I would hope that you could change your view of fanfiction from rape to something more like the text equivalent of kids dressing up and turning flashlights with plastic tubes into lightsabers and enjoying the world you created for them. You can tell them to go play somewhere else, but you can do so without that ill feeling in your stomach that you just got raped a little bit.

Because if it makes you this ill, and stops you from writing when discussing it, then that's extremely bad for you and you shouldn't have to suffer like that.

#99 ::: JESR ::: (view all by) ::: May 27, 2007, 12:01 PM:

TW's argument about fanfic being "lazy" could just as easily be applied to writing popular nonfiction; after all, the material is just there and you write about it, and do as much or as little research as you are comfortable with. I've been Sisyphus-ing away at two different non-fiction books for, ugh, fifteen years now (one on gardening and another on growing up with ADHD in the fifties) and they were, indeed, comparable in research and effort to writing a fic set in 1867 aboard ship.

Damned hard, at times, in other words. Not as hard as having all my Buff Beauty rose buds eaten by ants the day before Memorial day, but right up there.

#100 ::: C.E. Petit ::: (view all by) ::: May 27, 2007, 12:33 PM:

A note on Triumph of the Will: One could just as well consider any number of other polemics; I chose that one because its background is so intimately and famously connected with its production, and because I'm perfectly comfortable with the language in which it was produced. Feel free to substitute Battleship Potemkin, or Rise of a Nation, or another non-film example, if that makes y'all happy. And I, for one, can't figure out the point of comment 92.

89 — Mr MacLeod, we're going to have to agree to disagree. Certainly that essay implies a more "liberal" (in the European sense, not the American sense) view to Macauley than I have outlined. It's also a view inconsistent with his opposition to the proposals being floated in Parliament to which his two speeches cited at the beginning of this thread responded.

If my fever-influenced rhetoric painted Macauley as some kind of elitist who had no concern at all for anyone else, I apologize; that was not what I intended. The common use of the phrase "men of letters" at that time clearly did refer to a socioeconomic elite, and I should have made clear that Macauley was not above the practice of redefining his vocabulary in the middle of his writings. That, I'm afraid, was a sin common to "men of government" in that age. Or, perhaps, it's just that foolish consistency is the hobgoblin of small minds. (My small mind is all I've got.)

#101 ::: Charlie Stross ::: (view all by) ::: May 27, 2007, 01:04 PM:

Jo @96: I appreciate your position, but mine is about 180 degrees away from it; if anyone started writing fanfic in any of my universes I'd be flattered. I wouldn't necessarily want to read it, and I might worry a little about the risk of blowback, but I'd still be flattered: because it would indicate that I'd affected some readers enough that they wanted the story to go on after I'd let up on it. (Not that I'm really likely to be a target for fanfic ...)

I have difficulty getting my head around the whole "fanfic == evil" idea, much less the whole idea that people who come up with an idea can squat on it indefinitely, demanding rent to anyone who wants to use it creatively: don't these people realize that Mallory's Morte d'Arthur was fanfic? Hell, I suspect large chunks of the Bible are fanfic, too. (Bits of Genesis. Kings I. And so on.) Our whole cultural canon is riddled with stuff that is, by the definitions often applied to fanfic, indistinguishable from same other than by the fact that it's been around for ages.

#102 ::: Robin Z ::: (view all by) ::: May 27, 2007, 02:51 PM:

I can't speak for Jo Walton (and since she's left for the sake of her peace of mind, I don't think she'll be elaborating herself), but I don't get the impression she feels fanfic is evil. Look at her first sentence in #96:

I can't respond to all of you who are asking politely if I mind if they write fanfic in worlds I'm not still actively writing or whatever, because it all sounds like "Do you mind being raped just a little bit?"

The metaphor here is pretty clearly "fanfic == sex". Jo Walton is saying no, and even if you really love her books, and really enjoy doing it, and even though a lot of other people don't mind (or are flattered, even), she doesn't want it, and would be hurt by it. The 'evil' is the dismissal of her feelings, not the act.

#103 ::: Avram ::: (view all by) ::: May 27, 2007, 03:08 PM:

Greg London @98: The case of the author getting sued by a fanfic writer accusing the author of stealing the fanficcer's story [...]

If you're talking about the famous-in-fandom Marion Zimmer Bradley case, you're presenting a grossly inaccurate summary of the facts. It was more like the case of an author reading some fanfic, wanting to take some elements from a fanfic story and use them in a canonical book, writing to the fanfic writer for permission, and the fanfic writer demanding co-author credit.

#104 ::: Mary Dell ::: (view all by) ::: May 27, 2007, 03:11 PM:

Jo Walton @ #96: it all sounds like "Do you mind being raped just a little bit?"

Unfortunately making any kind of art makes you vulnerable - posting pictures of yourself or your family on the internet makes you vulnerable - anything that shows a private part of your mind to the world makes you vulnerable. It sucks, and I don't have a good solution for it, and I entirely sympathize with people who are horrified by that vulnerablility.

That said, comparing other types of violation to rape is my least favorite rhetorical device ever.

#105 ::: Mary Dell ::: (view all by) ::: May 27, 2007, 03:11 PM:

Jo Walton @ #96: it all sounds like "Do you mind being raped just a little bit?"

Unfortunately making any kind of art makes you vulnerable - posting pictures of yourself or your family on the internet makes you vulnerable - anything that shows a private part of your mind to the world makes you vulnerable. It sucks, and I don't have a good solution for it, and I entirely sympathize with people who are horrified by that vulnerablility.

That said, comparing other types of violation to rape is my least favorite rhetorical device ever.

#106 ::: Clark E. Myers ::: (view all by) ::: May 27, 2007, 03:14 PM:

A vaguely related fanfic question - I've seen, especially in a bridge game among assorted married couples with children, someone called away and on a one shot turn their hand over to a kibitzer or dummy and the same in a poker game where someone has already folded. My gut is that one would be much less inclined to do the same in a RPG and almost never in a live action RPG?

If so, is it related to investment in the RPG character versus investment in one haphazard deal?

I'm enough of a free speech absolutist that logically I'd have to allow derivative works as fair use from the beginning - part of expanded fair use. I'd like to see the SFWA solution to the disagreement between Wollheim and the Ballentine successors over LOTR work as a market solution every time though.

#107 ::: Avram ::: (view all by) ::: May 27, 2007, 03:16 PM:

Myself @103: Except it wasn't fanfic! It was a submission to an official legitimate Darkover anthology book!

#108 ::: C.E. Petit ::: (view all by) ::: May 27, 2007, 03:26 PM:

103 — That's certainly one way to look at the facts. The real problem is that there are so many conflicting accounts that one must come up with a "most probable" evaluation that will be vehemently contested by those it doesn't favor.

And perhaps that's the real point of everything in this thread: That the acceptability of fanfic is fact specific. Jo's position is pretty fact-specific: On the facts of her own work, and her own feelings about her own work, she feels that fanfic is a grievous invasion of her authorial persona and rights. Charlie Stross's position (see 101) is different: He'd be flattered by the general fact of fanfic... although I notice he doesn't indicate whether there are any specific subtypes that would be, well, unflattering.

Now throw in one other issue: That trademark law — wrongly, in an abstract sense, but I don't get to conform all law to my vision of what is "right," and neither does anyone else (witness my disagreement with designating the patron of a WFH as the author in comment 54 of this thread) — requires the markholder to contest every unlicensed use of the mark, or the mark's ownership can be forfeited. This is distinct from copyright: A copyright holder can choose not to respond to certain infringements without jeopardizing ownership of the copyright. Yes, it's more of that procedure v. substance stuff... but, as any competent military officer will tell you, the rules of engagement are at least as important as the comparative combat power of the forces. Law works the same way.

So, in essence, what I've been trying to say, with obviously limited success, is:

Copyright law is a necessary, but not sufficient, consideration concerning fanfic.

No broad legal or philosophical position will adequately cover enough cases to create an adequate bright-line rule regarding fanfic; it will always be easy to point to a real, nontrivial instance that is not covered by that rule. How, for example, do we deal with fanfic concerning famous recluses like Thomas Pynchon? Or in sharecropped work, or anonymous work? Or, worse yet, work that is otherwise illegal (there do exist a couple of fanfic-like stories circulating in the militia movement based on "manuals" on assassination techniques)?

Absent an internally consistent position that covers enough of the ground to be worthwhile, it seems to me that common courtesy says to start (not necessarily end) with the author's stated wishes. Where one goes from there, though, is fact-bound.

#109 ::: Avram ::: (view all by) ::: May 27, 2007, 03:42 PM:

CE Petit @108 -- The problem is that you're paying attention to all those accounts, rather than just the accounts that matter. Here's an account by Jean Lamb, the "fanfic" author in question (though it was a legit story for a Darkover anthology). Here's a comment by Mercedes Lackey (scroll to the bottom), who was involved in the proceedings, giving MZB's side of things. If we had accounts by MZB herself, or her lawyers, or Lamb's lawyers or agents, those would be worth looking at too.

But that's it. The great fannish rumor mill, we can ignore that because we have sources of higher quality. Both those sources agree that MZB wanted to use elements from another author's story in an official book, and contacted the author about the matter.

#110 ::: Doctor Science ::: (view all by) ::: May 27, 2007, 03:42 PM:

I'm glad Jo has left this discussion, and I hope she stays away for the sake of her peace of mind. I also hope that she (or her designated second) contacts fanfiction.net to get put on their No-No List, because that's the easiest way to repress fanfic based on one's writings. I could also disseminate her wishes in the various litfic communities, but I'm reluctant to do so without some kind of authorization, and I don't want to contact her because I don't want to poke the sore place. Email me if necessary.

Generally speaking, those of you who are writers should be aware that fanfic based on *purely text* sources (no movie, no TV, no comic) is rare.

As far as I can tell, by far the most abundant litfanfic is based on the works of Tamora Pierce. My native informant (my teenage daughter) reports that it is worse than Sturgeon's Law predicts, and that after searching through the archives for a new story to read she usually ends up going back and re-re-re-reading the books or buying new ones. So in this case at least, fanfic definitely supports the source.

What I hope this helps show you is that, as Greg London says at #98, fanfic is play. Tamora Pierce fans write a lot of fanfic because they're teenage or pre-teen girls and her books make them feel like *playing*. One reason for the overwhelming deluge of Harry Potter fanfic is that the books are playful and have a lot of young fans, and children like to play. Adults play, too, and it's not a sign of disrespect to dance to the music.

#111 ::: Doctor Science ::: (view all by) ::: May 27, 2007, 03:54 PM:

87 -- Charles, I am *confused*. How would

portraying Captain Kirk as a swaggering tin-plated dictator with delusions of godhood (and I mean for real, not just in the words of a half-drunk Klingon) acts against the property identified by that mark — Star Trek.
*not* count as protected parody for legal purposes? Even though/if it "tarnishes" the trademark?

And also, what would count as "for real" in this example?

#112 ::: Mary Frances ::: (view all by) ::: May 27, 2007, 05:42 PM:

Mary Dell, #104, re: other-sorts-of-violation/rape analogy. I agree, but sometimes it's hard to resist. How about this for a substitute?

Many years ago I was sharing a summer vacation house with a relative who was absolutely fascinated by the fact that I wrote. She constantly made comments on the level of "What are you writing? Why don't you write this? Can I see?" When I returned vague answers or said "no, sorry," she took to trying to look over my shoulder as I typed.

At which point I turned to her and said, "Tell you what. Next time you go to the gynecologist for a pelvic exam, can I come along and take turns with the speculum? Because that's pretty much what this feels like to me."

Not the same context, of course, but a somewhat similar emotional reaction, I think. Male writers could substitute the appropriate medical exam of their choice.

#113 ::: mythago ::: (view all by) ::: May 27, 2007, 06:22 PM:

What I hope this helps show you is that, as Greg London says at #98, fanfic is play.

From the point of view of some authors, including Jo, it's like having somebody come up and start playing with your things without permission. And when you tell them no, I would really prefer you not grab my toy or my bicycle or my ass without checking in with me first, they pull a hurt face and say, but I'm playing; aren't you flattered?

#114 ::: Mary Dell ::: (view all by) ::: May 27, 2007, 07:04 PM:

Mary Frances @ #104: I like your analogy...except that most of us volunteer to have our bits probed on a regular basis, and I think Jo's feelings about this are stronger than that. I would choose burglary as a metaphor, myself - someone breaking into your house and messing with your belongings, maybe ruining some of them, and then leaving.

Except that someone here has probably experienced exactly that, and would say that it's different, and might be upset at me appropriating their experience. Metaphors are tricky, particularly in the vasty depths of the internet, where every discussion contains at least one of every type of person. Witches? check. Rape survivors? Very likely. Cancer survivors? Of course.

Which doesn't mean that it's morally wrong to use rape as a rhetorical device. It's a powerful image, and powerful images are what rhetoric is built upon. It's just that...very few things are, actually, like it.

#115 ::: Bruce Cohen (SpeakerToManagers) ::: (view all by) ::: May 27, 2007, 07:29 PM:

Charlie Stross @ 101

(Not that I'm really likely to be a target for fanfic ...)

Well, perhaps not. But if I were still into RPG as heavily as I was 20 years ago, I'd sure have a go at setting up a game in "Glasshouse", and I'd be surprised if there weren't a few people around now who'll get that idea. For that matter, it would be relatively easy to put together a game module for "Call of Cthulhu" based on the Laundry books, and it could add some interesting twists to the game. So is creating a game based on profic like fanfic? Or is more like copying collateral merchandise?

#116 ::: Mary Frances ::: (view all by) ::: May 27, 2007, 08:59 PM:

Mary Dell @ 114: Metaphors are tricksie things, all right.

Mythago @ 113: Ooh, I like that one!

#117 ::: Marilee ::: (view all by) ::: May 27, 2007, 10:00 PM:

Charlie, #101, I want to know what happens after Accelerando but I want you to write it.

Mary Dell, #104, I think Jo means exactly what she says. It would feel like rape to her.

#118 ::: Kimiko ::: (view all by) ::: May 27, 2007, 10:09 PM:

111
Doctor Science: 87 -- Charles, I am *confused*. How would portraying Captain Kirk as a swaggering tin-plated dictator with delusions of godhood (and I mean for real, not just in the words of a half-drunk Klingon) acts against the property identified by that mark — Star Trek *not* count as protected parody for legal purposes? Even though/if it "tarnishes" the trademark? And also, what would count as "for real" in this example?

I can't speak for him, but:
if fanfic is supressed on the basis of Trademark law, then parody is not a defense.

The other thing that we aren't talking about is that since Trademark law requires the business (you) to actively police (sue) their mark, you could lose the right to suppress fanfic or other derivative works if you don't. You have to take an active role to keep your trademark. So start suing your fans now*, before someone with bigger pockets (Simon and Schuster?) realizes they can grab your work by fanficcing a sequel.

*It's worked great for the five member companies of the RIAA, hasn't it?

#119 ::: Mary Dell ::: (view all by) ::: May 27, 2007, 10:36 PM:

Marilee @ #117

Perhaps so. Frequently this phrasing is used for effect, rather than because someone is making a literal comparison.

Anyway, as I said, I don't think this rhetorical device should be forbidden. I just don't like it. I sympathize with Jo in this situation, so I'm not trying to say she shouldn't feel whatever she feels.

Best if I leave this discussion, I think.

#120 ::: Bruce Baugh ::: (view all by) ::: May 27, 2007, 10:36 PM:

Disclaimer: I fully realize that as a guy, I'm entering a mine field. I'm attempting to get out of it as fast as I can.

My problem with comparisons to rape is that they put the compared thing outside the realm of decent discourse. Now, in the case of rape, this doesn't bother me. There's room for psychological, neurological, anthropological and other such study of rapists, criminological considerations of effective detection, prosecution, and punishment, and so on, but the practical moral consideration is that rape is bad, you shouldn't do it, and anyone who's trying to justify it is pretty well guaranteed to be up to something bad. If you find yourself justifying rape, it's a sign of something wrong in your chain of thoughts or feelings, just as if you were trying to justify torture, corporations' right to sell poisoned food to unknowing customers, or the flat earth. It doesn't go.

And there are things where some sigificant chunk of people think there's room for reasonable disagreement, but further examination suggests not. People learn, individually and collectively, and (for instance) a lot of the history of feminism is women teaching each other and then well-intentioned guys what should in fact not be okay, and getting the changes needed to make it so. (Work in progress, obviously.) "I thought this was okay but now I see it's not" is one of the basic statements of life as a moral person in civil society, and finding out that an otherwise okay person has been holding a view that now seems abominable is one of the basic challenges to etiquette and friendship. We deal, or try.

All of which is to say that I don't take my present feeling of rightness as a proof that I am right. It's just...honestly, I really don't think that those of us agitating for a renewed public domain, the use of characters and places as well as phrasing, imagery, and the like as grist to other mills, and all the other stuff that goes with restricted copyright are in fact doing something like advocating rape. I feel more like we're saying "it's time for the recipients of race/class/First World privilege to give back some of what came from others, and help move toward a system where there won't be such appropriations to redress in the future". If I'm anywhere close to right, if there are any serious issues about profiting at others' expense, protections that come at socially undesirable cost, any of that stuff, then there's room for discussion and negotiation - which includes someone like me saying "okay, I still think this is too long, but I'll live it with it because of these other features" as well as someone else saying "maybe my comfort is much less than the point than the overall outcome" or whatever. But if I'm wrong, then I'm right down there with Holocaust revisionists and Dick Cheney.

I'm still not claiming that I can't be slime, just because I don't think I am or don't want to be. Good intentions sometimes amount to exactly nothing (or even worse than that). But I have to be shown it, one way or another. The equating of a potential offense to rape hurts and agitates me precisely because it starts by ruling every humane ground for alternative views out, rather than ending up there. I'm not for one second doubting Jo's honesty or anything else - heck, none of this would bother me if it weren't coming from someone I trust and respect. I am, however, tossing out a generalized plea for room not to be a monster for feeling any way about it other than she does.

#121 ::: Fade Manley ::: (view all by) ::: May 27, 2007, 11:20 PM:

I don't want to offend with this question, but it's been running through my head all day because of this thread, and I can't come up with a gentler way to put it:

If people don't want anyone else writing fanfic, why do they publish their stories?

Because I can understand not wanting someone else mucking about with something that's privately and personally yours. (I'm using the generic and theoretical "you" here, not addressing it to anyone specific.) I have the stories in my head that no one else hears, and it would be deeply uncomfortable in a bad-touch sort of way if anyone else were to somehow find out about those things and then display their own versions. So the private stuff being private? That I can understand.

But when I put something out in public... I'm giving people tacit permission to make it part of their brainspace. If I didn't want them to think about what I wrote, and come up with a "What if?" and their own interpretations, I wouldn't make it public in the first place. People have written fanfic of my own unpublished but public works, and some of it was closer to my own views of the characters than other, but I always took it as a compliment. It meant that they were thinking about what I wrote enough to want to do more.

I don't want to traumatize people. If someone said they didn't want fic written on their works, I'd generally respect it once I found out. But it feels very much like being given a set of action figures for Christmas, and then told that I'm not allowed to take them out of the boxes to play. If you didn't want me playing with them, why did you give me the toys? If you don't want to watch me play, because I'll be doing it wrong, I can certainly understand that. But if I'm not supposed to do anything but look, I don't see why you didn't just keep the toys to yourself.

#122 ::: vian ::: (view all by) ::: May 28, 2007, 12:02 AM:

If you don't want to watch me play, because I'll be doing it wrong, I can certainly understand that. But if I'm not supposed to do anything but look, I don't see why you didn't just keep the toys to yourself.

If you take the view that derivative works have the potential to change the way the original story and characters are viewed (the way Milton did for Satan, or Mallory did for Arthur) then you might well want people to "look (at) but not touch" your work. You might want to present them with an immutable and finished character, and it might genuinely hurt when your fans go "nope, he's really like this ... hey, let's give him a girlfriend" or whatever.

Of course, as a writer, you can't stop people discussing, commenting on and playing with the ideas you give them - indeed, as you say, why release a work to the public if you don't want to engage the public? Once you have exposed your work to the world, you can't control what happens to it.

But you can ask that people keep the discussions theoretical, and keep their play to themselves. I suppose some writers are concerned that fan behavior becomes a question more of manners than morals (or legality) under this way of thinking.

#123 ::: A.J. Luxton ::: (view all by) ::: May 28, 2007, 01:28 AM:

I try to respect the wishes of authors who don't want derivative fiction to be inspired by their works. Unfortunately, that usually means I respect their wishes by losing touch with their works, or avoiding reading them in the first place. If they're bad, I can handle reading them; similarly if they're complete unto themselves in a way that invites no sequel, leaves no blanks. (This category includes some very good authors; not others.)

But great characters, great themes, tend to leap into my head -- sometimes clothing themselves in different colors, sometimes renaming themselves, sometimes doing none of these things -- and I'm left with a pile of story. In my brain. With bits of other people's story in it. Bits of every story I've ever read and loved, come to think of it.

There are neurological reasons for this, and the Spider Robinson story on the subject said more than I possibly can. And yes, I try to write publishable fiction, because I'm interested in publishing fiction; which means that when possible, I try to find ways of telling the stories in my head that do not violate copyright.

Still, I have a hard time understanding what people mean when they say "never write fan fiction about my stuff." Stories with the same names, places, setting, canon? Same guys in the same clothing played by the same imaginary actors? That's avoidable enough.

But the entire tradition of English literature is derivative and I haven't got a photographic memory; I couldn't necessarily tell you if a particular take on Arthur's life came from Malory or T.H. White, or from early Welsh tales. If it means "do not allow the silhouettes of my works to fall into the light of yours," then to do this prohibition honor I can allow them nowhere near me.

I'm not at peace with this idea (or any idea that involves restricting my reading!) particularly because I suspect that -- due to the nature of the human mind and the English language -- avoiding contamination to its full extreme means finding out who's read a particular author's works, and avoiding theirs, too. I suspect that this is not the approach Jo Walton is suggesting everyone take. In fact, I don't know anyone who'd suggest that.

I don't have any answers, though -- only questions. I thought Greg London's viewpoints @ 98 were good for perspective, though. I suspect the base trouble may be one of personal boundaries (if someone else says A.J. Luxton is a complete git, can I ever use this name again without feeling like a complete git?) and as with all things in that arena it gets very tetchy very quickly. I guess I'll remain stickily contaminated with ideas for now. Fits the theory of language as the apple from the Tree of Knowledge...

#124 ::: Greg London ::: (view all by) ::: May 28, 2007, 01:38 AM:

mythago@113: when you tell them no, I would really prefer you not grab my toy or my bicycle or my ass without checking in with me first, they pull a hurt face and say, but I'm playing; aren't you flattered?

Perhaps you missed the point of my post. People can either change the circumstances or change their interpretation, or change nothing and live with what they've got.

For Jo to relate to fanfiction as rape is an interpretation that doesn't line up with reality. Sure it's her experience and all that, but rape? Forced sexual violation is several steps beyond what happens when someone writes slash with your characters.

Seriously.

Some can argue it's her works and she can do what she wants with them, but I think I was pretty clear I support anyone who says "no fanfic" on their works. My point was more to address the idea of fanfic as rape and try to suggest that such an interpretation isn't empowering her (She said she couldn't write just thinking about it, and then she left the thread completely) and perhaps she could reassess her view to something slightly more accurate in portrayal.

I could feel the pain in her posts and I felt compelled to try and ease it a bit.

And no, I'm not buying into your metaphor of some fanficcer stealing your bike either. Property metaphors for intellectual works suck.

The fact of the matter is that copyright law allows one specific kind of fanfiction, cover songs. You can write a song, and record it, and release it, and put your blood sweat and tears into it, and someone can come along, and if they're willing to pay the predertimined rate, they can do any bloody thing they want to it.

The fact that text and movies and art and other media do not have compulsory licenses, is probably more an issue of bureaucratic complexity than "It's my bike and you can't have it".

So, you can either change your circumstances such that fanfic doesn't exist (won't happen) or you can change your interpretation of fanfic to something more accurate and something less sensational than physical trauma or physical theft, or you can choose to do nothing and live with the attitude and circumstance you've got.

But don't sit there and tell me that fanfiction is to authors what the boston strangler is to women and expect me to believe you for one second.

#125 ::: vian ::: (view all by) ::: May 28, 2007, 01:51 AM:

But great characters, great themes, tend to leap into my head -- sometimes clothing themselves in different colors, sometimes renaming themselves, sometimes doing none of these things -- and I'm left with a pile of story. In my brain. With bits of other people's story in it. Bits of every story I've ever read and loved, come to think of it.

You could mount a fair argument that all fiction (hell, all non-fiction, too) is derivative. But fanfiction is not, in the minds of some, a new work, but something feeding off an old one. Your great quilt of a story, where the Good Bits of a lot of stories shift and mingle, is a great description of the creative process - somewhere between synergy and alchemy. And let's face it, you often don't realise you've used a Good Bit until someone reads your work and says "this reminded me of The Wanderer" or "he's like Jeeves, but with a mean streak ... "

Fanfiction often skips the renaming and reclothing, is all, preferring to explore the gaps the author leaves in their work, or to create new fields of play. I don't agree with the writers who don't want that to happen to their work, but I respect their right to voice an opinion.

#126 ::: mythago ::: (view all by) ::: May 28, 2007, 02:46 AM:

For Jo to relate to fanfiction as rape is an interpretation that doesn't line up with reality. Sure it's her experience and all that, but rape?

Such a pity she isn't here so you can scold her for being sloppy with the "I feel extremely violated, threatened, hurt, vulnerable and abused" metaphor.

No, violation of intellectual property rights isn't like stealing a bike; that's why I didn't use the term "steal" in my post. I was referring to Jo's sense of invasion. (Please note that your gloss of 'grab' == 'theft' breaks down in reference to somebody's ass.) Er, and the Boston Strangler was a serial murderer. Now who's getting carried away with the metaphor?

You seem to have decided I'm anti-fanfic, which is, like, so not the case. But I'm also sympathetic to Jo's feelings about her work--and the insinuations that she's selfish, squelching creativity, or hogging all the toys is exactly the mentality that causes that feeling of violation.

#127 ::: Dave Bell ::: (view all by) ::: May 28, 2007, 02:54 AM:

I'm with Greg on his explanation why rape can be a bad analogy.

Some things are crimes because they're bad.

Some are crimes because laws have been made.

It's not good for something from one class to be used as an analogy for something from the other.

IP infringements are not piracy either--you look at the laws on piracy, and the actual statutes are close to nonexistent. It was robbery and murder, and it was so obviously wrong, and so much against the idea of a common civilisation, that every country had jurisdiction.

IP is a creation of statute law, both locally and internationally.

Yes, the rape analogy has the emotional content that's needed, but in other ways it's dangerous. It warps the debate.

#128 ::: Bruce Adelsohn ::: (view all by) ::: May 28, 2007, 03:09 AM:

Charlie Stross #101 said: I suspect large chunks of the Bible are fanfic, too. (Bits of Genesis....

I don't know about fanfic as opposed to outright plagiarism, at least in the case that I'm most familiar with.

It was many years ago, but one thing I took away from a course in college on literary analysis of the Bible is that there are multiple creation stories in the text of Genesis; as I recall, there are something like three of them in the first ten or twenty verses.

The professor showed that one of those stories specifically references the legend of Tiamat, the Sky Dragon, which was of course a contemporary myth (from Babylon, IIRC, though it could have been Assyria. It's late and I'm tired). While I suppose this could be construed as fanfic, I remember that it was more of a direct lift.

#129 ::: vian ::: (view all by) ::: May 28, 2007, 03:34 AM:

Such a pity she isn't here so you can scold her for being sloppy with the "I feel extremely violated, threatened, hurt, vulnerable and abused" metaphor.

No one is trying to tell her she doesn't feel that way. But the metaphor, as many here have pointed out, is not a good one, and stifles discussion on what fanfiction is, and does.

Where the metaphor breaks down for me is that Jo chose to send her ideas into the public arena, where presumably she wanted people to assimilate, engage with and analyse them. To do that is to accept a degree of loss of control over how your work is interpreted. It may lead you to be anything from astonished to disgusted by what people come up with, but it starts with the voluntary decision to release your work. Mind you, I see most fanfiction as a form of commentary, albeit in a very different form to a scholarly critique. YMMV.

There is nothing voluntary about rape. The idea that an author's right to control a text which they have submitted for public consideration is as sacrosanct as a woman's right to be free from violence is jarring. How she feels is how she feels, but it's not an apt metaphor for what is happening when people write fanfiction.

To spare her feelings, people choose not to fic her work. But being compared to a sexual predator for taking a storytelling approach to text analysis is overkill at least.

#130 ::: Robin Z ::: (view all by) ::: May 28, 2007, 09:06 AM:

#120, 121, 123, 124, 127, 129: First off, I think Marilee at #117 is right – raped is exactly how she feels about people making fanfic from her work. In fact, I think that's all she meant by the comparison – just a description of her feelings.

But like I said before, I think the comparison should be "fanfic == sex".

There are several good points of correlation. When the story is published, if it's attractiv... err, good, a lot of people will develop crushes on it. They'll want to act on those crushes – it's fun. And there's nothing wrong with doing so, either; it's a perfectly natural impulse, even if it's not widely acknowledged in public. But when there's more than one person involved, you gotta take consent into account. And some people won't be okay with it.

#131 ::: ethan ::: (view all by) ::: May 28, 2007, 10:09 AM:

Y'all, don't you think we should be content to let Jo feel the way she feels, and also to not talk about her while she's not here? Just seems polite to me.

#132 ::: G. Jules ::: (view all by) ::: May 28, 2007, 10:43 AM:

I second #131.

#133 ::: Emma ::: (view all by) ::: May 28, 2007, 11:01 AM:

A.J. at @123: I think the difference lies between jumping into somebody's universe wholesale and taking off from somebody's idea. One example: I am passionately invested in Steven Brust's Taltos Universe (in fact, I remember making a semi-nasty grumble at Teresa one time when she posted she had just read the latest ahead of the rest of us); if I were to jump in and start making his characters behave in ways Brust would find offensive, or that would take the storyline in a direction he didn't intend, I think he has a right to be ticked off. But if I said, this is an interesting idea, BUT he's missing all this other stuff he could be doing and created my own section of his universe with my own characters, there's much less offense in that, I would think.

And if you jump off his universe to create another whole new one, well, (cough, cough) strange creatures with pointy ears are all together too common in the fictional world and no one has a right to complain.

Personally, I can understand the temptation of making characters I loved do and think as I would want them to, and I will confess to having written one or two Star Trek stories when I was a teenager. But I soon realized that I find it so much more satisfying to see where an author takes his world next that it wouldn't occur to me to try to do it for him.

#134 ::: Greg London ::: (view all by) ::: May 28, 2007, 11:33 AM:

mythago@126:Such a pity she isn't here so you can scold her for being sloppy

I never scolded her. And now you're just being a sarcastic ass about it.

Jo can choose to tell everyone that she doesn't approve of fanfiction of her works and I'd support that. But her view apparently was making her literally sick, she couldn't write when she thought about it, and she said she had to leave the thread.

I wasn't scolding her for being sloppy. I was however encouraging her to take another look at her reaction to fanfiction. I would assume she wouldn't have a problem with kids dresssing up and pretending to be characters in her world. Which would mean she has a view of that as harmless fun. Then maybe she might see that the jump in her interpretation from harmless fun to physically ill and physical violation because someone committed the act of writing it down, rather than playing it out, might be reassessed.

The intended goal was that she could be in a discussion about fanfiction and not get so sick that she has to leave. The goal would be that if she happens to stumble upon some unapproved fanfiction of her own work that she doesn't go into a downward spiral, stop writing, and withdraw.

You wanna respin that as "scolding her", fine. But the end result of your smart ass sarcasm is that she remains exactly where she is now: too distraught to even discuss the topic and unable to write when the topic comes up. And I say that isn't helping her.

#135 ::: C.E. Petit ::: (view all by) ::: May 28, 2007, 11:34 AM:

IP is sort of like Wesley: It's only mostly statutory law. There are nonstatutory legal bases for IP law, including both so-called "natural law" and cultural imperatives. (And I'm not going to hijack this thread further to respond to anyone who claims otherwise; this is my conclusion, and scholars have legitimate differences.) It's a complex area, and trying to pretend that bright-line tests exist that cover all circumstances without creating unjust results on reasonably possible fact-sets is not just futile: It's self-defeating.

Consider, for example, the problem of true (not legal) satire. Under IP law as it has developed — and believe me when I say it's a lot more flexible and open now than then — Voltaire's Candide, and Swift's Gulliver's Travels (Book III in particular), would be treated as infringing... but for non-IP-law social constructs. Even then, it's extremely dicey, as careful forum-shopping could force Voltaire into court in, say, France, where he'd have serious problems with droit d'auteur and the absence of anything resembling the First Amendment... either then or now.

Combine social constructs and imperatives that are extralegal, and one finds Salman Rushdie. (N.B. I was living in England at that time; trust me when I say that what Americans know of the controversy merely touches the surface. I've even got two copies of the book under The Consortium's semianonymous imprint that we bought just to support the publishers in standing up to the mob.) So, Dr Science (111), I can't give an answer on what would and what would not be "acceptable," because it's fact- and context-specific. For example, it would make a big difference if the rest of the work was hardcore porn or a serious study of linguistic imperatives as expressed in 1960s popular culture. Please stop asking for bright lines in the face of "There are no bright lines."

#136 ::: Bruce Baugh ::: (view all by) ::: May 28, 2007, 11:36 AM:

Mythago: I, at least, am not trying to tell Jo what she feels. As a general thing I try not to do that. I would, however, very much like to see if there's some other way of thinking about those feelings that allows for acknowledging the intensity and depth of her response, without making that the necessary end of any conversation about what may be either legal or moral for others to do with published work. Because...damn, I hate to sound callous about this, but there are issues that I don't think can properly hinge on whether Jo feels that violated. Lots of people may have to find accommodations, ways of thinking about their work and the world that use different points of reference, even if it it now seems so intense and so complete. I feel like a heel in some ways for writing this, but I also think that even though I have complete confidence that Jo is reporting honestly to us, she's not necessarily entitled to a legal or cultural regime that backs those feelings up.

This would be much easier to deal with, at least for me, if Jo weren't someone I genuinely do respect on so many fronts.

#137 ::: Ken MacLeod ::: (view all by) ::: May 28, 2007, 12:25 PM:

C. A Petit says, #100: [re #]89 — Mr MacLeod, we're going to have to agree to disagree. Certainly that essay[the one on Samuel Johnson that I cited - KMM] implies a more "liberal" (in the European sense, not the American sense) view to Macauley than I have outlined. It's also a view inconsistent with his opposition to the proposals being floated in Parliament to which his two speeches cited at the beginning of this thread responded.

I'm not going to agree to disagree. Because you said, #47:

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.

Macaulay said the exact opposite, right there in his speech. We cannot depend for literature, he says, on the leisure of busy people. We cannot depend on the rich and noble, because their ambitions (usually) turn in another direction. 'It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.'

You do seem to be suggesting that Macaulay's speech is irrelevant to today's copyright and other IP debates because he takes for granted that full-time writers are 'the independently wealthy' or 'the educated elite with sufficienct leisure to write', whereas Macaulay specifically excludes these very classes from his consideration: copyright is for the remuneration of those whose profession is literature, and whose private means are not ample. That sounds quite like my situation, and that of most writers I know.

#138 ::: Malthus ::: (view all by) ::: May 28, 2007, 01:01 PM:

Returning to a somewhat earlier portion of the thread, I would argue, John M. Ford perhaps aside, that the best of fanfic can top the best of profic tie-ins -- but not for the reasons people have thus far mentioned.

In my mind, it's a matter of statistical distributions.

Yes, the average fanfic is worse than the average profic, but there are so many more fanfic authors. You're bound to get examples further out on the curve, and those examples will, in general, be better than the top end you get from the profic distribution.

Now, there are caveats to this argument: 1) Better profic authors are invited to produce more books, thereby increasing the likelihood of a point far out on the good side of the curve, 2) Better fanfic authors are likely to "graduate" to writing either profic or original fiction, 3) Fic qualities are not (in technical statistical terms) independently-distributed, nor can they be measured one-dimensionally (indeed, they may be better described by an evolutionary process).

There are, however, counter-caveats to each of those (which I leave as an exercise to the reader :-).

#139 ::: JESR ::: (view all by) ::: May 28, 2007, 01:18 PM:

I try not to bring Nan into this, but in response to Malthus's comment at 138 2) Better fanfic authors are likely to "graduate" to writing either profic or original fiction, I'd like to point to Nan Dibble, else Ansen Dibell, who started writing original fic, wrote "Beauty and the Beast" tie-in novels, wrote and edited books on writing, and over many years wrot fan fic in several universes, leaving a multi-novel length Buffyverse AU unfinished at the end of her life.

Who writes what when is not so linear...

#140 ::: Bruce Cohen (SpeakerToManagers) ::: (view all by) ::: May 28, 2007, 01:26 PM:

I also agree with #131, but there's an aspect of the discussion that followed Jo Walton's posts that bothers me quite a bit. There's a clear dichotomy in how the posters see the question; that dichotomy seems to be causing them to talk past each other, and create some acrimony.

One group is talking about feelings, while the other is talking about debating. It's almost as if they have two different definitions of 'rights', one based on the notion of emotional harm, and the other based on legal and economic harm. The problem is that if you accept that feelings are important, then the scope of the debate is limited in some ways, and the people who think the debate is paramount aren't willing to accept that, they see that as a rhetorical 'trick' to win the debate.

I'm not going to address any of the points below to specific people; I don't want to start a bunch of"You said; I did not" arguments such as we've already had. They're a clear sign that these posts are going right past each other, that many posters are looking only at how the others' posts apply to their own arguments, and not trying to understand why the posts say what they do.

You guys are going to have to recognize that there's a difference between the right to debate an abstract issue, and the right to debate the merits of a particular case. If you believe that feelings should be cared about, then when someone indicates that she has feelings about an issue that preclude debate by her then you need to accept that, and not try to 'help' her to understand why her feelings need to be subordinated. If you don't care about feelings, say so, don't give lip service and then talk about debate.

By the same token, if you think there are things to discuss* here beyond one individual's feelings (and I think there are), then you should look beyond your (appropriate and reasonable) indignation at things that are said in the name of debate that may hurt feelings, and try to explain to those who said those things what exactly they've done.

What bothers me most about this discussion is that the reactions have included some rather nasty insults, and the normal level of respect in ML has taken a real nose-dive.


* And I mean 'discuss', not 'debate'. I, at least, think that this forum's greatest benefit to us and to others who read it is that we often succeed at coming to an understanding of what we are discussing that holds more truth than any of our individual positions. This cannot happen if all we are concerned about is scoring points in an argument.

#141 ::: Bruce Baugh ::: (view all by) ::: May 28, 2007, 01:50 PM:

Bruce: The problem (for me, anyway) comes when feelings and debate run headlong into each other. I would, for instance, like to say that I think there'd be substantial merit to returning to a fixed copyright term (28 years, say) and a single renewal, period, with extensive fair use rights int he meantime. I don't want to say "and so Jo should just suck it up and either abandon writing for publication or get used to feeling raped all the time, for the general good". But neither do I want to say "the legal framework necessary for Jo to feel protected from intellectual and creative rape is a good thing for our country and society, and I withdraw all my concerns about it for her sake, because her well-being must trump that of everyone being deprived of a public domain."

I'm not being flippant here. Or at least I'm not trying to be. I feel stuck, and without anywhere to go except to suggest that Jo needs to do some adjusting as well as I do, except then I run into the question "Who the hell am I to tell a woman that a thing she feels as strongly as rape is anything she can or should adjust?", and then I think "But the loss of the public domain was going on before I knew of Jo's feelings, and I don't see that any of the facts about it have changed..." and it goes and goes, and I honestly don't know how on Earth to proceed. And I would welcome guidance.

I genuinely think that strong and lifetime copyright is a threat to the well-being of our society, in the long term. I genuinely think that Jo is a neat person on whom I wish nothing but success and well-being. I don't see any way at all to do justice to both those concerns, and yet I feel I need to. So?

#142 ::: mythago ::: (view all by) ::: May 28, 2007, 02:05 PM:

Because...damn, I hate to sound callous about this, but there are issues that I don't think can properly hinge on whether Jo feels that violated.

How the author of the original work feels is, surely, a factor to be taken into account in discussing these issues, whether or not any result "hinges" on them. And the rational response to authors who feel as Jo does is not to pout that those authors are being selfish, or perhaps shouldn't be writing in the first place if that's how they feel, as some have suggested.

Jo didn't say "if you use my fanfic you're just as evil as a rapist and it's as bad as if you physically raped me." She was upset, she was trying to express her feelings of involuntary violation, and it strikes me as more than a little disingenuous, if one's real disagreement is with her no-fanfic-plz-kthx stance, to express that disagreement by brow-furrowed nitpicking over her use of the word "rape".

Greg, Jo left long before you and I started our little disagreement, so it's more than a little ridiculous to suggest that my opinion is "not helping" her--since she's not about to read it. It seems equally unhelpful to start making assumptions about what she would or wouldn't find OK for others to do.

#143 ::: ethan ::: (view all by) ::: May 28, 2007, 02:08 PM:

Bruce Cohen #140: A-frackin'-men.

Bruce Baugh #141: I agree with you to a point, but I do believe that it's possible to continue that discussion without specifically talking about Jo, and that that is the respectful way to do it, everyone's stated and presumed good intentions aside.

Advice? Just don't talk about her.

#144 ::: Greg London ::: (view all by) ::: May 28, 2007, 02:27 PM:

mythago@126: Er, and the Boston Strangler was a serial murderer. Now who's getting carried away with the metaphor?

Oh good grief. Jack Valenti, as president of the MPAA, testified to the US Congress in 1982, in an attempt to kill the development of the VCR, and he said, to quote: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

A purely emotive plea intended to kill off all rational discussion of how much the VCR would help or kill the movie industry.

I don't think Jo was doing this. She was reporting her feelings, not making an argument. You on the other hand, took her feelings and turned them into an argument against fanfic.

I'm also sympathetic to Jo's feelings about her work

I'm sympathetic to her feelings. But I can't change the circumstances about fanfic. So, I'd rather see her change her view of it at least so she can stay in a discussion about it, rather than to feel so sick that she can't write and she has to leave the thread.

If she isn't interested, can't, won't, whatever, then fine. I'm not going to try and force her to do anything.

But you seem to confuse my suggestion to Jo to have another look at her emotional response with (1) saying her response is wrong or (2) having anything to do with an argument about the legal validity of fanfic. She seemed clearly distraught. I offered my help.

the insinuations that she's selfish, squelching creativity, or hogging all the toys is exactly the mentality that causes that feeling of violation.

Oh, I just don't know what to tell you. You want to pick a fight, go for it, but I insinuated nothing of the sort. She seemed distraught about fanfic, to the point of having to leave for her peace of mind. I offered what help I could. If she isn't interested, that's fine.

My post to her had nothing to do with trying to change copyright law or sway her opinion on some legal dispute or make any damn argument about fanfic. I wasn't saying she was hogging all the toys, and I wasn't saying she was selfish. She had a reaction that sucked the wind out of her sails and seemed to force her to leave the thread. It's perfectly fine that she has that reaction, as far as it's fine if you like chocolate and don't like vanilla.

I'm sympathetic to her feelings, but I personally would rather see her be able to remain in the discussion about fanfic. If she ever stumbles across some fanfic of her works in the real world, I'd rather she be able to stay in that conversation rather than withdraw and stop writing and whatever else. And I offered my help.

If she's not interested, that's perfectly fine.

But being sympathetic to her feelings doesn't mean I have to silently watch as the wind goes out of her sails. If she's fine with where she is, then I'm fine. But she seemed distraught, so I offered some help.

#145 ::: Avram ::: (view all by) ::: May 28, 2007, 02:30 PM:

Bruce Baugh @141: I genuinely think that strong and lifetime copyright is a threat to the well-being of our society

I'd take lifetime copyright, if it were on offer. It'd be an improvement over what we've got now.

I've got the same qualms you do over Jo's choice of words, and the issues around them.

Mythago @142, if wasn't disingenuous for Jo to use the word "rape" to describe her real feelings of violation, then it's not disingenuous for Bruce to express his real feelings of concern about the use of that word.

#146 ::: Greg London ::: (view all by) ::: May 28, 2007, 02:49 PM:

Greg, Jo left long before you and I started our little disagreement

As if this has anything to do with it: No, you're wrong.

Jo's last post on the thread was #96. I replied two hours later in post 98 asking her to reconsider.

You replied in #113.

The whole reason I responded to Jo's comment about rape was because she announced she was leaving the thread.

so it's more than a little ridiculous to suggest that my opinion is "not helping" her--since she's not about to read it.

Your post at 113 wasn't about helping her, it was about making me wrong. You didn't like my Star Wars story because you didn't like the metaphor or what it might mean about fanfiction or something. I don't know why you disagreed with it, exactly, but you certainly weren't disagreeing with me to help her.

At that point, you had your own axe to grind, whatever it was.

It seems equally unhelpful to start making assumptions about what she would or wouldn't find OK for others to do.

I assumed nothing. She said she couldn't write. She said she had to leave the thread. She compared fanfic to rape. I offered my help. If she declined it or never responded, I would have left it at that.

You, for whatever reason, have sunk your teeth into it and are gnawing on it like a bone. I suggest that whatever you think I've done to Jo, I haven't, I didn't, and I never intended it.

Perhaps if you stop fighting me on Jo's behalf, or whatever the hell it is you're doing, it might become a little more clear what dog you have in this fight. And then we can leave Jo out of it.

#147 ::: Varia ::: (view all by) ::: May 28, 2007, 04:14 PM:

Greg London, it comes across really strongly that you mean well in your posting but I think there's something basic you aren't getting. It's just not helpful to tell someone who says "I've had this viscerally invasive, damaging experience" something like "well maybe if you learn to think about it differently it wouldn't be so bad." All that does is deny the validity of their experience. I sympathize completely with, actually, both of the Bruces, and ethan; but it's different to say "jesus, that sucks; I don't know if we can work around it, but that really sucks", than to say "jesus, that sucks, but maybe you could just talk about it differently and then I wouldn't have to feel bad for you".

And just so it's clear: I am grinding my own axe here, but it's one that I suspect multiple people share. I am a rape survivor and I have been told these things by well-meaning and clueless people who make me want to vomit. So I feel like I know whereof I speak, and I suspect you don't, but I could be wrong - by all means correct me if I am.

#148 ::: lost_erizo ::: (view all by) ::: May 28, 2007, 04:56 PM:

This started out as a response to Jo Walton's comments, but since I'm way behind the curve on responses, I missed that opportunity. But I still think it may be a valid point for any author who feels as she does about fanfic. YMMV.

The problem with holding Anne Rice up as an example of fans mistreatment of authors who object to fanfic (Jo Walton @96) is that fans didn't lose respect for Anne Rice because she asked them to not write fanfic. They lost respect for her because she is shrill, over the top, threatening, occasionally insulting, and engages in the same kind of hyperbole that Ms. Walton used when she compared fanfic to rape. I don't want to denigrate Ms. Walton's feelings of violation - her feelings are her own and as valid as anyone else's - but the metaphor is unfortunate because not only does it cast fan writers in the role of rapist (thus going beyond an expression of her feelings and edging on accusation), but it appears to result from an unrealistic idea about how much claim an author has on published ideas. As others have pointed out, we are not talking about a violation of private territory - when she published her stories, she asked people to make her text a part of their thinking. If that leaves an author with a feeling of violation, then sie needs to seriously consider whether publishing is worth the price - because it's not a negotiable point for any reader. The fact of the matter is Ms. Walton is not "safe to publish" (@40) - if by that she means she doesn't want readers to actively engage the text. Readers are not passive vessels.

You (the universal you - AKA the author) can reasonably expect to rely on copyright law to protect your intellectual "property" but only up the to point of a violation of your actual rights - and many people (not just in the fan community) see those rights as ending at the point of profit and/or transformation (ie. fair use). But if you also want fans to comply with your wishes and feelings above and beyond those rights, you're going to have to maintain their respect - and respect is something you can only ask for or earn, not demand. Of course not everyone will comply with your wishes. Some people are assholes. Some people will simply disagree with you. But throwing up one's hands and saying nothing will accomplish exactly that - nothing. On the other hand, making unreasonable demands (and even if the request is not unreasonable, the tone of aggrievement and the particular metaphor used in this case was guaranteed to put some on the defensive) will just motivate some to go against your wishes out of spite. The key is to grant the fans the same respect you want them to show to you.

If you show them that you don't think that they are worthy of respect (as Anne Rice did), well, many are going to reciprocate.

#149 ::: Debra Doyle ::: (view all by) ::: May 28, 2007, 05:57 PM:

Leaving aside the question of whether rape-as-analogy does or does not trivialize the actual experience of rape (that being an issue upon which, thank God, I lack the standing to pronounce), there still remains this problem: If a person, in the course of an argument, makes a statement to the effect that Action X is like Action Y, where Action Y is something clearly indefensible, then any subsequent person attempting to marshall an argument, however rational, in favor of Action X is put in the position of seeming to speak in favor of the indefensible Y. The actual intent of the first speaker may not be to shut down discussion of the merits of Action X by silencing those other speakers who may be sensitive to the charge of speaking in favor of Action Y . . . but in practice, that's how it often works out.

I'm not certain, but I think this is why they always used to tell us, back in Freshman Rhetoric and Composition, that the argument from analogy was a dangerous thing.

#150 ::: miriam beetle ::: (view all by) ::: May 28, 2007, 06:13 PM:

greg,

I assumed nothing. She said she couldn't write. She said she had to leave the thread. She compared fanfic to rape. I offered my help. If she declined it or never responded, I would have left it at that.

i know you like to help people, & have put a lot of your life into finding ways to be as helpful to people as you can. but i know you've said in the past that the life-coaching relationship can't start until someone asks for your help. jo didn't ask for your help, & did indicate that even thinking about fanfiction was putting her off writing. you're right that that sounds like a serious problem for her, & that her feelings are hurting her much more than they're hurting fanfiction, & if she could change her emotional response, she'd be a happier & more productive writer (probably).

however! it was clear that she was not in the mental state to be working on changing her thought processes in order to change her emotional responses, right here on this public forum. so "helping her" is not gonna happen on this thread, & it was too late for that conversation, to my perceptions, before she posted her last post.

i know you also love passionate debate, & that's fine too. just recognize that right now, with jo not open to discussing her emotions, you are out of "helping people" mode & into "debate because i'm right" mode. & i think what ethan & bruce & others are saying, is as long as we're in debate rather than personal consolation mode, better to not use jo's name. if we want to talk about authors who feel violated by fanfic (which there are quite a few), we can just say, "authors who feel violated by fanfic."

#151 ::: Bruce Baugh ::: (view all by) ::: May 28, 2007, 06:25 PM:

Oh, something I should make explicit: I'm interested in this partly because I know Jo isn't alone in her feelings. A lot of authors and other creators have equally intense responses to things done with their work. Some would use precisely the same metaphor, others different ones, but it's much the same sort of feeling. And this matters, since creators are part of the public whose interest the law should serve and custom help. Jo has, IMHO, been genuinely useful to the general consideration of creative control because she is so clear about it, and because she's such a worthwhile person in so many ways, that she illuminates a whole part of the map that often gets overlooked when the discussion is more abstracted and detached.

But it's not just about Jo's feelings - it's about (for me, at least) the feelings of all creators who feel as she does.

#152 ::: Mary Frances ::: (view all by) ::: May 28, 2007, 07:01 PM:

Debra @149: Good point. One of the interesting things (to me) about the the "X is like [indefensible] Y" type of analogy is that it usually indicates that the speaker isn't attempting to argue rationally; he or she is arguing emotionally, and the appeal to emotion is always dangerous. When I do it--and Freshman Comp notwithstanding, I have--it's usually part of an explicit warning that I'm not entirely rational on this particular subject and that trying to convince me to be rational is probably a waste of time . . . at least at the moment.

Which ends the debate, of course, if it's framed as being between me and one other person (or between my specific viewpoint and one opposing). I'm not sure if that's bad--it certainly doesn't mean that rational argument can't continue on that particular subject in my absence--so maybe it just implies that the most fruitful arguments are likely not to be strictly two-sided?

#153 ::: James ::: (view all by) ::: May 28, 2007, 07:49 PM:

The story goes that Lenny Bruce based his humor on that of a fellow named Joe Ancis, who many report was funnier than Bruce, but too shy to perform professionally. I've known performers who vomit before every performance, and Bill Russell, the legendary star of the Boston Celtics has said that he also often worshipped at the white altar before games.

I've seen performers break into tears when reading unfavorable reviews, and I am emphatically not speaking exclusively about women. And I've seen writers hurl things across the room upon seeing editorial changes to their work--after it had shown up in print without their foreknowledge.

I've also known people who claimed that the very sight of homosexuals sickened them physically, others who claimed that being confronted with any kind of public sexual displays, including suggestive advertisements was the equivalent of, yes, rape. Yes, I know that this comparison is unfair; comparisons often are.

There have also been attempts by famous persons to use intellectual property laws to control what is written about them (Howard Hughs being one eggregious example), and the current IP laws are routinely used as mechanisms of information control by various individuals and organizations.

I do wish to be sensitive to the feelings of others, I truly do. But we are talking about matters of law here. If that is to be the standard for the application of the legal system, if feelings are to be the standard by which these matters are judged, then
there are others who might make use of those arguments.

#154 ::: Bruce Baugh ::: (view all by) ::: May 28, 2007, 08:50 PM:

Mary Francis: Appeals to emotion can be dangerous...but they can also be honest and helpful. When the true issue is emotional, it's good to know that, to say it, and to describe it as directly and fully as one can. There's a lot of bogus logic deployed in defense of what isn't actually matters of reason at all, but emotions people (especially guys) are afraid to own up to. It's possible to talk honestly and logically about emotions, just as it is to be honest and emotional about logic, and in both cases it's good to know what folks feel is actually driving them.

#155 ::: Greg London ::: (view all by) ::: May 28, 2007, 08:59 PM:

Varia@147: All that does is deny the validity of their experience. ... maybe you could just talk about it differently and then I wouldn't have to feel bad for you ... I am a rape survivor and I have been told these things by well-meaning and clueless people who make me want to vomit. So I feel like I know whereof I speak, and I suspect you don't, but I could be wrong - by all means correct me if I am.

I am not out to trivialize anyone's history so that I don't have to feel bad for them. This isn't about trivializing rape. This was about fanfiction. As miriam brought up, I do life coaching, have been for a couple years, and I've worked with people who've had some seriously shitty, horible, physically tramautizing things done to them. And the thing you really need to get is that: this isn't one of those situations.

Fanfiction is not rape anymore than the VCR is not the Boston Strangler. And everyone can get up in arms all they want about "respecting someone's experience", but this wasn't rape, therefore the subjective experience doesn't match the physical reality. I'm sorry, but of this I know whereof I speak: your subjective experience does not get to trump reality. In most cases, I've found that's usually where people get stuck.

And I've said plenty of times that if Jo isn't interested, if Jo doesn't reply, if Jo says "no thanks" or even if she says "get stuffed", I would take it no further. The fact is that Jo hasn't said ANYTHING to my initial offer, instead, I've got people bringing their own stuff to the party, looking to turn me into a grindstone. But the things I've been accused of haven't actually happened. I'm not looking to make Jo think about it differently so I don't have to feel bad for her, and I'm not insinuating that she's selfish and hogging all the toys like mythago brought to the party. That's everyone else's axe, not mine.

What happened is Jo said she was leaving the thread "for her mental health" and that she couldn't write because of it, and she compared the question of "can I write fanfiction in your world?" with "Do you mind if I rape you just a little bit?"

And I responded with my offer of help. It wouldn't be the first time that someone said they're dropping out of a thread or dropping out of Making Light or dropping out of life and someone said "What? Why? Please stay."

For those who don't like it, duly noted. Message received. The offer to Jo still stands. And I wasn't planning on pushing it any further. Deal with it.

#156 ::: Greg London ::: (view all by) ::: May 28, 2007, 09:02 PM:

miriam@150: jo didn't ask for your help

I know. She said she was leaving. I asked her to reconsider. Everything else has been axegrinding from everyone else.

#157 ::: Doctor Science ::: (view all by) ::: May 28, 2007, 09:16 PM:

#86 ::: T.W: unconditional love is (at most) for persons. To have unconditional love for a non-person is a form of idolatry.

#80 ::: Kimiko
When Fred Gallagher says:
The only think that i ask is that you treat the characters with the same respect that you would treat real people.
he is not essentially different from a child who says, "Don't hurt Teddy Bear's feelings!" When a child says this, we know that he means, "don't hurt *my* feelings, as projected or embodied in my Bear," and we respect Bear for that reason. Characters are *not* real people, no matter how strongly and understandably their creator feels that they are.

#130:: Robin Z
the comparison should be "fanfic == sex".
Not unless your usual idea of "sex" is a multi-continental orgy.

#113 ::: mythago :
Indeed, the standard metaphor within fanficland is "playing in someone else's sandbox".

Note that this, like my comment about Fred Gallagher, implies that there is something childlike and playful about writing & reading fanfic, which is absolutely true in my experience.

One metaphor or story that has come up a lot over the years in fanficcers' (I hate that word, but I don't know any other short way to say it clearly) own discussions and stories about "what we do" is The Velveteen Rabbit. The Rabbit starts out a beautiful, gleaming toy, but as he is loved hard over the years he gets shabbier and shabbier, more worn and dirty ... and that's how he becomes Real:

"Real isn't how you are made," said the Skin Horse. "It's a thing that happens to you. When a child loves you for a long, long time, not just to play with, but REALLY loves you, then you become Real."

I admit, we fanfic fans can be pretty hard on our beloved characters and worlds, what with the crying and dying, the Mary Sues and the angst, the bizarre crossovers and bad punctation, the high-school AUs and the MPreg. But we keep them in our minds, and we love them, and they become Real to us -- where by "Real" I mean "Mythic".

So I agree completely with Charlie @#101 Charlie: the Bible *is* fanfic, but in the best possible way. When a story becomes so much a part of your mental furniture that you can't help turning it around, trying to see the hidden sides, how it fits in with whatever's going on in *your* life -- that's crossing the line from story to myth.

For you writers, you can (to some extent) make the decision about whether you want the toys you give to stay beautiful, just the way you made them -- but on the shelf -- or if you're willing to take the risk that your readers will love the stuffing out of your work.

To reiterate points I've made above: by "to some extent" I mean

(a) if there is no movie/TV/comic. Once the cameras roll, it's out of your control.

(b) unless you are writing for the YA market (or younger). If most of your fans are under 16, they *will* love the stuffing out, it's in their nature.

#158 ::: AliceB ::: (view all by) ::: May 28, 2007, 09:19 PM:

Laws are frequently based upon emotions. It's entirely human to say: "This action makes me mad. We should pass a law preventing this action." And many perfectly good laws (and not a few bad ones) are created that way.

In copyright, it's interesting to note that French/European copyright laws were based upon "moral rights", which incorporated authors' emotions about their works. UK/North American copyright laws were based on the Statute of Anne which came from a business perspective of publishing. From the point of view of an author, the implementation of both these kinds of copyright laws was about the same. The Berne Convention, which the US adopted, was a compromise (as all treaties tend to be) and incorporated notions that come out of "moral rights".

So leaving authors' emotions out of a discussion about copyright laws would mean cutting out part of what copyright encompasses. That's not to say the debate need be emotional*. Rather, the emotions that are there need to be considered, as part of the law.

*I use "emotional" here in its pejorative sense. I would argue that good debates always include some emotion, and cutting them entirely out of a discussion would be boring.

#159 ::: Bruce Baugh ::: (view all by) ::: May 28, 2007, 09:34 PM:

Greg: I am not amused at being dismissed as one more axe-grinder. Nor, I dare say, is C.E. Petit, who's offering up professional expertise, nor Ken Macleod with his historical challenges, nor...indeed just about anyone. Please identify some of this axe-grinding, if you would, because right now the only one I see grinding an axe is you with your pique at Jo for not wishing your flavor of intervention.

#160 ::: Mary Frances ::: (view all by) ::: May 28, 2007, 10:01 PM:

Bruce Baugh @ 154: Oh, I agree, Bruce. Sorry. I didn't intend to imply that "dangerous" means "not worth doing." It just means "go carefully, if you go."

#161 ::: Bruce Baugh ::: (view all by) ::: May 28, 2007, 10:19 PM:

Mary Frances: Gotcha! I agree, and also I apologize for getting your second name wrong. Sorry sorry.

#162 ::: Doctor Science ::: (view all by) ::: May 28, 2007, 10:44 PM:

Alice 158:

In copyright, it's interesting to note that French/European copyright laws were based upon "moral rights", which incorporated authors' emotions about their works.

I think we need to remember that right now the big battle over copyright is not over text works, but over film & music. IMHO in the legal & political realm the emotions of individual creators, especially writers, are being used as a stalking horse for the interests of large entertainment companies.

Most of the most valuable copyrights in the world are held by corporations, who have no feelings and who do not die. An individual may hold a copyright for life, but if a corporation is credited as the author, what is "lifetime copyright"? No individual makes any but the most minor movie or TV show, so who is the author whose feelings we should take into account, who has a "moral right"?

This is why I, like Jo, see nothing wrong with the traditional 28 years, renewable once. AFAIK the only reason this law was changed is that corporations bribed and pressured and bribed lawmakers to change it.

#163 ::: Kimiko ::: (view all by) ::: May 28, 2007, 10:55 PM:

Thoughts.

The characters that are intimately familiar to me in the stories that I have in my head, I pour out upon the paper. Others read them, and sometimes they seize upon the story as a cool thing, and the story lives in their head. That is the intended transaction.

The problem is that to read a story is to participate in a reality inside your head. If someone responds to my story by creating fanfic, and I read it, then their perversions of my characters, of my story lives within my head!

Good sense dictates that I should not read fanfic of my own stories, unless I am sure of the author. Good morals dictate that I should not put fanfic in the path of unwary authors. As TNH says*, for us to read something is to pipe it into our consciousness; it is not enough to tell someone to disregard that troll, truly vile speech must be disemvowelled in order for the reader to have choice.

Jo would rather not have other people's interpretations of her stories rearrange the space inside her head. That is perfectly understandable. One's head-space is very personal, and very important. (If it wasn't, what would be the point of writing?)

I prodded her almost immediately about where her boundaries were - whether the mere knowledge that someone, somewhere, was making stories from hers was sufficient to dismantle her composure. I think I should not have done that. I still want to know what her boundaries are, or the boundaries of people who feel as she does. It's hard to act ethically if you don't understand the scope of harm you can do.

Are there any derivative works that are truly innocent of the power to get inside an author's headspace? Parody, satire, filk, illustrations, comics, buttons, cosplay, roleplaying games, or sestinas? What makes something harmful to the author? I quoted Fred Gallagher above, because he actually does describe some very specific boundaries, and has illustrated his tolerance through his actions for many years now. Do authors have a duty to clearly delineate their limits? Is that part of the unspoken contract that comes with the gift and the respect between storyteller and audience?

*paraphrased, of course.

#164 ::: Xopher ::: (view all by) ::: May 28, 2007, 11:11 PM:

Doctor 157 ct T.W 86: Unconditional love == latria isn't an equation I've heard before. And since latria is supposed to be reserved for God, that would mean that unconditional love for another human being would be idolatry too.

Those of us who reject the idea that idolatry is in any way a bad thing (and can worship other human beings if we want, never mind actually bowing down to graven images, something I do on a daily basis) also reject the idea that anyone else should tell us whom or whatm (heh) we should love, and how unconditionally.

So there.

#165 ::: Kathryn Allen ::: (view all by) ::: May 28, 2007, 11:25 PM:

Even if one considers fanficcers to be the evilest, rudest, nastiest scum on the planet... a writer writes so as to engage readers, whether that's to entertain them or make them think or whatever.

A professional writer sets out to hook and hold them, and maybe it would be nice if the only result of that was their recommending the book to friends and buying the next one, and the next, but some readers will be so engaged that they won't be satisfied by that and they'll do more than wait for the next installment. They'll turn into fans, and some of them will turn into fanficcers. Especially if the popularity of the source material means it can be a shared passion and a community activity.

Professional writers *sell* books. They write books that engage so that the books will sell, which means they'll be published. Books that aren't appealing to readers don't sell and don't get published. Simplistic as that is, writers want readers and, while they may not consider fanficcers part of that equation, if they get enough enthusiastic readers, visible fanfic is pretty much the inevitable consequence of writing an engaging book that sells widely.

A writer who expects their readership to turn off their imaginations and emotions just because they finish reading a book... Is expecting rather a lot from human beings who've invested money and time to read it in the hope they *will* get carried away. Readers have feelings too. And I think writers have to accept some responsibility for those feelings. Maybe more responsibility than the reader has to have for the feelings of the writer.

#166 ::: Debra Doyle ::: (view all by) ::: May 28, 2007, 11:53 PM:

AliceB@#1518: The problem with incorporating authors' emotions regarding fanfic into a discussion of the pros and cons of fanfic in general is that there is by no means a uniformity of sentiment in that quarter. For every author who is squicked beyond the telling of it by the idea of fanfic based on his or her work, there are others who are largely indifferent to the existence of such fanfic, or who would read it with interest were it not for considerations of legal prudence, or who actually do read it either openly or on the sly.

Which set of feelings, then, is to be privileged, when the time comes to make the law?

#167 ::: T.W ::: (view all by) ::: May 28, 2007, 11:53 PM:

Doctor Science #162

Maybe the solution is to not let corporations have copyright in the first place, confine them to trademark or make a two tier system of limited rights for corporations and fuller rights for individual human creators. They may be less likely to weasel and rip off the artists that way.

And I have seen many an example of fans practicing idolatry with creative works.

#168 ::: Debra Doyle ::: (view all by) ::: May 28, 2007, 11:56 PM:

Ack. That should have been "@158", above. (Edit the post three times for phrasing and punctuation, and still miss the obvious typo. Sigh.)

#169 ::: Teresa Nielsen Hayden ::: (view all by) ::: May 29, 2007, 12:32 AM:

Fanfic is free. You have no cover price to amortize. The only reason to finish reading one sentence and continue on to the next is that it pleases you, right here, right now.

All fanwriting works that way.

#170 ::: AliceB ::: (view all by) ::: May 29, 2007, 12:39 AM:

Debra 166"Which set of feelings, then, is to be privileged, when the time comes to make the law?"

At the moment, because the law is also based on economic factors granting a monopoly for copyright holders, it slants in favor of the copyright holder. (Although, reading C.E. Petit, above, who would win in a copyright or trademark infringement case would depend heavily on the circumstances.)

My point about emotion is that dismissing an author's emotion completely from the discussion because "laws should not be based on emotions," is silly. The author's emotions are part of "moral rights", and although the UK/North America IP laws have not endorsed "moral rights" in their statutes, arguments along those lines crop up, and judges, as humans, listen to them.

I want to add that I agree that it would be just as silly to dismiss a fanficcer's emotion from this discussion. But that doesn't change that currently, the law, in its gross application, sides more with the author. You may not like this result, but to paraphrase C.E. Petit: the laws aren't great, but they do function somewhat. We cannot rework them as if we were starting from zero, or as if the Berne Convention never existed. And therefore, that makes authors' feelings relevant.

#171 ::: Greg London ::: (view all by) ::: May 29, 2007, 12:44 AM:

Bruce@159: I am not amused at being dismissed as one more axe-grinder.

Wow. It really is amazing how utterly impossible it is sometimes to try to clarify something with one person only to have yet another person read that comment and decide it means something completely unrelated about them, even though they were neither named in the post nor even a part of the subthread up to that point.

I made one post to Jo after she announced her departure. All other posts made to me by other people about that post have either misinterpreted my post to Jo, and clarifying that has spawned a whole subthread, or people have brought their own baggage to the conversation and projected intentions that were simply not present at all.

miriam pointed out at #150 that Jo didn't ask for my help, and in attempting to point out that my "help" consisted of all of one post to her and everything else that I've said about Jo since that one post has been in response to other people bringing their own stuff to my one post to Jo.

At which point, you now jump in.

Good lord. No, not every fricken post on this thread has been axe grinding. But other than the one post to Jo, every post TO ME IN RESPONSE TO THAT ONE POST I MADE TO JO has been nothing but people bringing their own stuff, their own interpretations, their own filters to what my ONE POST TO JO actually meant.

For example, by asking Jo whether she viewed children playing dressup and pretending to be characters in her world, I was not, as someone asked, attempting to dimiss the legitimate experience of someone who has been raped. Nor by that same question regarding kids playing dressup was I insinuating that Jo was being selfish or hogging all the toys.

nor were all my posts in response to these various misinterpretations of my ONE POST TO JO in any way a reflection of my "pique at Jo for not wishing your flavor of intervention" as you so misinterpretedly put it.

No, I made ONE POST TO JO after she said she was leaving, and the only "pique" I've had since then is being accused of calling her names, dismissing the feelings of actual rape victims, and people who can't seem to read a post in the context of the subthread it was made in and accuse me of "intervention" because of my ONE POST TO JO.

No doubt, someone who has had not participated up to this point in the subthread regarding my ONE POST TO JO will now read this post with no regard for any context it was made in, and ask my why I specifically called them a necropheliac by their name. Because it's so fricken obvious that that's what I'm actually doing here.

Whatever. Someone, somewhere, is going to bring their own crap to this game. And I just need to give up that I can straighten it out. Of someone wants to bring some crap, they're going to bring some crap.

#172 ::: Greg London ::: (view all by) ::: May 29, 2007, 01:04 AM:

Alice@158: it's interesting to note that French/European copyright laws were based upon "moral rights", which incorporated authors' emotions about their works.

Victor Hugo, apparently, was the main lobbying force behind the Berne Convention, so that the initial version of the treaty contained the French flavor of author's rights. So it isn't too terribly surprising when you have the bounty hunters setting the bounty or the authors setting the rights and terms for copyright.

So leaving authors' emotions out of a discussion about copyright laws would mean cutting out part of what copyright encompasses. That's not to say the debate need be emotional*. Rather, the emotions that are there need to be considered, as part of the law.

Copyright in the US does not encompass that.

If some subset of all authors feel that the law does not protect their emotional needs, but another subset of authors don't care and are willing to write without legal protection for those emotional needs, then there is no need to put that extra emotional baggage into law.

It's no different than saying that if enough writers are willing to write for a 20 year term, then the law does not have to set terms to a hundred years just to satisfy those authors who must have a hundred year term or they won't write.

What's needed is that the rights and terms are such that a sufficient number of writers write. anything beyond that is not needed.

One could potentially argue that to shorten copyright terms even by one single year might upset some current authors and those authors need to be considered. But copyright, at least in the US, is not about tucking every author in at night and giving them milk and cookies so that their every emotional need is met. No, copyright is about promoting the progress of the useful arts. and if some author is willing to promote progress on a 20 year term, then the constitution makes no requirement that terms be set longer just because some other author will only write if terms are 50 years.

The massive number of authors and artists who are willing to do works for hire seem to indicate that there is a rather large population who would write simply for money and would sign all their rights away.

#173 ::: ethan ::: (view all by) ::: May 29, 2007, 01:09 AM:

Greg, I don't want to cause offense. Really, I don't. But consider how much time you spend here being angry that people have misconstrued, twisted, or outright lied about what you've said, and consider also that you're not surrounded by idiots and liars.

I'm not saying that people don't from time to time misconstrue, twist, or outright lie about your words, as I'm sure it happens (and I'm pretty sure I've seen it happen a few times, though not necessarily in this thread), but is it possible that it's not entirely everyone else's fault all the time?

For example, re-reading what I just wrote, I can easily see how anyone, you especially as it's directed at you, could read it and interpret it as being a hostile attack, when that is not at all my intention. Read it with a different tone of voice, attach slightly different connotations to given words, and the meaning of everything can change dramatically.

#174 ::: AliceB ::: (view all by) ::: May 29, 2007, 01:26 AM:

Greg, the US adopted the Berne Convention in 1989, regardless of who lobbied for it in the 19th century. (And, I add, the Convention has been amended quite a bit since 1886.) You may not like the fact that the US adopted it, but it did, for a pretty important reason: it was one of the last countries to do so, and was becoming a copyright outcast. For sound economic reasons, it had to.

I don't advocate that authors' emotions (or anyone's emotions) should trump a discussion about how we can improve copyright laws. More narrowly, they have to be considered among lots and lots of other things because, like it or not, they are relevant.

#175 ::: Greg London ::: (view all by) ::: May 29, 2007, 01:45 AM:

For sound economic reasons, it had to.

Ugh. Yes, those "sound economic reasons" was all the lobbying done by Disney to keep SteamBoatWilly from going public domain.

As explained here:

In 1928, Walt Disney put out a movie called “Steamboat Willie”, starring Mickey Mouse. At the time, copyright terms lasted 28+28=56 years. This meant that the bounty would have been paid in 1928+56=1984. The Mickey Mouse in “Steamboat Willie” would have become public domain in 1984. But in 1976, Congress changed copyright law in preparation for joining the Berne Convention and extended copyright terms to “life plus 50 years”. Since corporations never die, corporate copyrights were set at 70 years. This meant that the bounty for “Steamboat Willie” would keep getting paid until 1928+70 = 1998. But in 1998, Congress passed the Copyright Term Extension Act (CTEA), extending terms to “life plus 70”. Copyright terms for corporations were extended from 70 to 90 years, meaning Walt Disney Incorporated will keep cashing in on its bounty until 1928+90=2018.

The "sound economic reasons" was the millions of dollars in campaign contributions that Disney makes every year.

they are relevant.

No. They are not. The only "moral rights" I know of in the US is attribution related stuff.

There have been cases in European countries where an artist was commissioned to do some art, delivered the goods, got paid, signed away all their rights. And then saw that the person who paid them put the art next to some "unseemly" thing or to some "unseemly" use, and sued to force them to undo it on the grounds that it was the "moral right" of the author/artist to control how their art gets used, even after they've sold it, released, been paid for it, signed all rights away for it.

We don't need that in the US, it isn't required by the constitution, and it is not relevant.

The only "relevant" moral right is 'attribution', and that's only because it is what we agreed to in joining Berne.

In the US, the only really "relevant" thing is that copyright must Promote Progress in the Useful Arts. Everything else is irrelevant.

#176 ::: Bruce Baugh ::: (view all by) ::: May 29, 2007, 02:30 AM:

Greg, the economic reasons were the status of US trade deals with Europe. These are of course not contained in the text of the Constitution (though provision for making them is) and they exist outside the Disney budget sheet, too.

#177 ::: AliceB ::: (view all by) ::: May 29, 2007, 02:35 AM:

Greg, we're going to have to agree to disagree.

The economic reasons for the adoption of the Berne Convention had to do with a lot more than Disney's STEAMBOAT WILLIE. There had been, mounting over the course of a century, as the U.S. became more and more of a copyright exporter (think movies, magazines, music), and less of a copyright importer, some real concern in all entertainment industries that unless the US signed onto what was now an almost universal treaty that other countries would decline to enforce US copyrights. There were various interim treaties, short of the Berne Convention, that tried to cover US copyright holders, but they were becoming less and less tenable in a global economy. I heartily recommend Paul Goldstein's COPYRIGHT'S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL JUKEBOX for a readable account of the history.

The US Constitution is a great place to start about a discussion of the purposes of copyright law, but I'm going to have to disagree that it is also the end of that discussion. In part because copyright is not limited to US laws. In part because although we may articulate that laws should be passed for one purpose, that is rarely the only purpose for which a law is passed. And in an intellectual discussion, I'm interested in all the reasons beyond what the US Constitution (a very terse document on the subject) has to say.

You may not believe that an author's emotional interests should be relevant in any discussion about copyright. The fact is, a huge portion of the world does. In the context of a discussion about fanfiction, I definitely wouldn't call it irrelevant.

I'm not opposed to fanfiction if an author is okay with it. My gripe was something narrower: dismissing the author's "not okay about it" as being irrelevant.

#178 ::: Greg London ::: (view all by) ::: May 29, 2007, 02:55 AM:

I heartily recommend Paul Goldstein's COPYRIGHT'S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL JUKEBOX for a readable account of the history.

(googling)

Ah, here's a review:

Goldstein is a strong supporter of copyright rather than copyleft. Professor Goldstein is not troubled by the rapid expansion of intellectual property rights over the past decade. He would take issue with intellectual property scholars who view the privatization of public domain as a “tragedy of the commons.” Goldstein is a strong advocate for robust intellectual property rights.

Uh, no thanks. I'll just stick to reading the MPAA propaganda when I want the opinion of a "strong advocate for robust IP rights" or someone who thinks the privitization of the Public Domain is a good idea.

At least the MPAA gives out the propaganda for free.

#179 ::: AliceB ::: (view all by) ::: May 29, 2007, 03:27 AM:

Greg, I'm sorry you'd dismiss so easily an eminent scholar in the field who is considered a must-read, and who is known to provide an articulate and thorough analysis of the topics he writes about, because he tends to be "copyright" vs. "copyleft" when discussing current laws. His historical scholarship about copyright is highly regarded, and I have not heard that his factual research is in any way biased. I recommended COPYRIGHT'S HIGHWAY because it is intended for the layperson--i.e. he manages to leave out the jargon while going into detail.

But now I've gotten entirely off-topic. My apologies to the rest of the commentators (is that the word?). I think I'm overdue for some sleep.

#180 ::: A.J. Luxton ::: (view all by) ::: May 29, 2007, 04:05 AM:

Varia @ 147: but it's different to say "jesus, that sucks; I don't know if we can work around it, but that really sucks", than to say "jesus, that sucks, but maybe you could just talk about it differently and then I wouldn't have to feel bad for you".

I think your points in that comment are extremely useful to this whole discussion. On that specific one, though, I'd like to say that the problem is not whether we have to feel bad for someone -- I mean, I feel bad for the homeless people I see as I walk around in my neighborhood, and I donate to groups that oppose sit-lie ordinances (such ordinances would prevent me from seeing homeless people though it would not prevent them from being homeless--); I'd feel bad for someone who said they felt violated by the existence of my gender presentation or sexual practices, even though it would not make me any less the person I am, and would not discourage me from living my private life.

The trouble is disentangling sympathy from legal action. There are many, many illustrations of this problem. See above. There is no question that emotions have relevance. The extent and scope of their relevance? That's problematic. Where is my fist and where is your nose again?

Doctor Science @ 162: Most of the most valuable copyrights in the world are held by corporations, who have no feelings and who do not die.

They have one feeling -- pure hate for all other beings! No, wait. That's the Daleks.

#181 ::: Greg London ::: (view all by) ::: May 29, 2007, 09:48 AM:

I'm sorry you'd dismiss so easily an eminent scholar

I'm sorry you must invoke appeal to authority. fifteen seconds of googling reveal the man is a maximalist.

#182 ::: Doctor Science ::: (view all by) ::: May 29, 2007, 09:52 AM:

I've been trying to ask this question by implication, but I guess I'm being too subtle. Bluntly:

What does "the moral right of the author" have to do with the *important* copyright issues of the day, which revolve around movies, TV, & music? In the case of movies & TV, who is defined as "the author" in EU law? In the case of a cover song, who is "the author"?

I get the feeling that those of you who feel uncomfortable about fanfic are equating fanfic based on movies or TV with fanfic based on your books. It's not. This is not, for the most part, a realistic fear.

Here's an example: before the movies came out I helped some people look for Tolkien slash stories. We found fewer than 100. After The Fellowship of the Ring was released, the LotR section on fanfiction.net alone was getting 100 stories *per day*, many of them slash. Those few pre-movie stories were a good deal better than predicted by Sturgeon's Law, interestingly enough, because anything written at an adult level tends to act as a filter against the more egregious badfic. Alas, the post-movie stories may be worse than Sturgeon predicts -- Orlando Bloom tends to have that effect.*g*

Unless you write YA, you really don't have much to worry about. If you do write YA, reaching sloppy, enthusiastic young readers is part of the job description.

#183 ::: P J Evans ::: (view all by) ::: May 29, 2007, 10:46 AM:

I understand where Jo is coming from. I've been on projects where it felt like 'my kid', and still does more than fifteen years later. (I get unhappy when people mistreat the database I worked on.) The project I'm on now feels the same way, and it has years yet to go.

Turning stuff loose for other people to play with hurts. When their idea of 'play' breaks the stuff, it hurts worse.

With that said, written books tend not to inspire the same level of fanfic that movies and TV do. Possibly this is because the audience feels much smaller: you don't have nearly the feeling of 'shared community'. [I won't go into Trek. It's a whole 'nother thing there.]

#184 ::: Doctor Science ::: (view all by) ::: May 29, 2007, 12:17 PM:

@183: I don't think that's the important factor at all. It's:

1. The Pretty.

2. Filmed characters have no inner life, so you (the viewer) automatically make up feelings & motivations to go with their actions, and you're halfway to a story already.

3. Conversely, text is telepathy, which I think is a large reason the idea of text-based fanfic revolts many authors. To write fanfic based on a text, you need to either reproduce or write against the characters' inner lives, which is technically difficult. And readers don't have the sense that the characters' inner lives are *missing* in the way that filmed characters' are.

4. The Pretty. *Never* overlook the force of pretty pictures.

In TV/movie/game/comic fandoms, it is distressingly common to see a story that says at the top, "I've never seen the show/played the game, but I feel like I know these characters from the lovely fanfic!" These stories universally suck. However, my friends & I could think of no examples of, "I wrote this fanfic even though I've never read the book", though as one pointed out:

I'm tempted to say that some of the "sequels" to Austen (and if those aren't fanfic, what is?) show distinct internal evidence that the writer of said sequel has read many books that are *not* Austen, and only questionably has read those which Austen wrote. I'm probably doing an injustice, however; by all accounts these are simply delusional writers who love Austen too well, but not wisely.
So basically, when fools people write fanfic without knowing the source they've still seen the pictures, and it all starts with "they're cute."

#185 ::: Kimiko ::: (view all by) ::: May 29, 2007, 12:58 PM:

Doctor Science (184)
3. Conversely, text is telepathy, which I think is a large reason the idea of text-based fanfic revolts many authors.

Thanks for writing that. You said in one sentence something that took me a whole post.

#186 ::: P J Evans ::: (view all by) ::: May 29, 2007, 01:01 PM:

Doctor Science @ 184

Well, I'm probably Not Qualified as an expert, since I haven't (in recent years) read much of the fanfic you're referring to. I can see, easily, where someone who isn't into the original material (period or not) could end up with something that's all fluff. To do it well, you have to get into it, I think, and there's a certain amount of work involved (and in fanfic that means unpaid doing-it-for-love work).

As far as fanfic vs profic quality ... I read an early fanfic story that ended up being part of one of the Mageworlds books. It was good then - I certainly remembered it - and it turned out well when it went pro. (It isn't the only one that's gone that route, either.)

#187 ::: meteorplum ::: (view all by) ::: May 29, 2007, 01:56 PM:

First, can we all please replace "Property" in "Intellectual Property" with "Monopoly"? Because "property" is a terrible metaphor for non-concrete things such as Stranger in a Strange Land, the script Coca-Cola™ logo and 1-click shopping. Better yet, let's call copyrights "copy monopolies", trademarks "(trade)mark monopolies" and patents "process/product monopolies"[1].

Second, there has been rather few posts in which the poster advances specific alternatives to various copy monopoly issues, so I'll disclose mine and try to support them. I'll then follow-up with some observations on the non-monopoly aspects of this discussion.


How long should copy monopolies last?
28 years plus a single renewal term of 28 years; the renewal requires registration.[2] Copy monopolies can be assigned or willed. As has been said elsewhere in this thread, this limited monopoly is to give creators an incentive to create more, with all the works to be ultimately released into the public domain to enrich the common culture. If someone wants their grandchildren to enjoy the fruits of hir labor, sie should learn financial planning.

Question to those who can read the fine print better than I: where in Berne/WCT/TRIPS does it say that one doesn't have to formally register a work for copyright to apply? Berne Article 2.1 begins with:

The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression[....]

Which implies that all creative works would automatically fall under the "Protected Works" umbrella, until one gets to Article 2.2:

It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.

This seems to modify Article 2.1 in that a signatory country can decide for itself what category of work might not be protected or any particular work might not be protected "unless they have been fixed in some material form". How does this get turned into "you don't need to formally register a copyright?"


How broadly should copy monopolies apply?
Reproduction, distribution, public performance; for profit or otherwise. Fair use exemptions would include educational, criticism/analysis/review, parody/satire, private archival of electronic materials, indexing for searching/cataloging. I would limit so-called "moral rights" (which we should call "authorial rights") to attribution.

Beyond that, "authorial rights" seem way too subjective as the bases for reasonably effective laws. The one thing I can think of would be to give creators the monopoly to attach a "statement of acceptance/objection" be included with the publication/performance of the objected-to variant/context of the work. I would also have no problems if these "authorial rights" were also limited to 28+28 years, and independently assignable from the "economic" monopoly.

AliceB@177:

There had been, mounting over the course of a century, as the U.S. became more and more of a copyright exporter (think movies, magazines, music), and less of a copyright importer, some real concern in all entertainment industries that unless the US signed onto what was now an almost universal treaty that other countries would decline to enforce US copyrights.

This is what we call "blackmail", or "negotiating strategy" in NewSpeak. Has anyone thought to ask why the US was (and is) so successful in exporting its culture? More importantly, successful exports require one or more import markets. So who was doing all the importing, and why?


How do (trade)mark monopolies affect copy monopolies?
In my opinion, fanficcers should really be looking at (trade)mark instead of copy monopoly laws. To wit: popular books are not only being copyrighted at the moment, but their characters, settings, plot-lines, attire and sports are all being trademarked as well. From a 2004 edition of HPatPS:

Harry Potter, names, characters and related indicia are copyright and trademark Warner Bros. 2000™

For fanficcers, this means that it doesn't matter if we reduce copy monopoly to 10 years, or even 10 months. Even if JKR and her "authorial rights" assignees gave their full blessing, Warner Bros. might still have valid claims against HP fanfic. Maybe the lawyers reading this thread can point us to some useful reading on trademarks and how they have to be defended.


If fanfic==play, then authors and fanficcers are...?
1. Fanfic == play implies that
2. Characters/plots/universes == toys (playthings?)

So if:
3. author == toy owner, and fanficcer == kid coming to take the toys away, then
4. author has no toys

WTF? This is what we get when we call a limited monopoly "intellectual property" and proceed into a rhetorical rat hole.

The better metaphor would be the author as "toy" Manufacturer. George Lucas doesn't run out of "Han Solo-ness" because the warehouse is empty.[3] And just like real manufacturers, some allow more latitude of "play" than others. Think Mattel's attitude about Barbie™ versus Lego's attitude about their bricks, or even Black & Decker's attitude about their tools. Carry this metaphor to its logical conclusion, and authors who want no fanfic at all to be based on their works turn into the Franklin Mints of the world. (Though there certainly are fanfic possibilities in having the Confederates face the Army of Mordor on an Arthurian chessboard.)


The "r" word.
[rant=on]For the love of Pete, people!![rant=off]

Can someone tell me if "rape" is a good analogy for anything except rape? If not, we're tossing the word around why?

Also, we may have discovered a more divisive alternative to Godwin's Law. Yay us.


(Making annoyed Mutley sounds, if that doesn't violate someone's intellectual monopoly.)


[1] The Grammar Rock fan in me really wants to call this a "Thing Monopoly".

[2] If Berne Convention issues could be set aside, I'd prefer that the original term would also require registration.

[3] What does make Lucas run out of "Han Solo-ness" I leave as an exercise to the Reader.

#188 ::: Dave Bell ::: (view all by) ::: May 29, 2007, 02:03 PM:

In the days when I wrote fanfic, there was no internet, few people with home video recorders/players, and, in the UK at least, no repeat showings.

So it was pretty common for fanfics to be just new episodes. There was AU, and there was slash, but it wasn't as commonplace as it seems to be today.

Mind you, a lot of it was new Mary Sue episodes.

#189 ::: Varia ::: (view all by) ::: May 29, 2007, 02:08 PM:

A.J. Luxton #180 - Oh, I absolutely agree. That's what I meant when I said I sympathized with the Bruces (& maybe with William Wallace too) - I fall pretty hard on the public-domain copyleft side of the argument, and yet want to protect people from knowing that these friends they've had living in their head for years are doing bizarre and creeptastic things in other people's heads (because no matter how weird it is, that slash exists *somewhere*). I don't know where that line is. But I feel like it's actually more respectful to admit that that quandary might not be resolved in an ideal way for protective authors, than to tell said protective authors that they should feel differently.

#190 ::: Greg London ::: (view all by) ::: May 29, 2007, 02:21 PM:

meteorplum@187: can we all please replace "Property" in "Intellectual Property"

I usually call them intellectual works. The monopoly does not refer to the stuff that is "Harry Potter" for example, teh monopoly is the thing that allows JKR to be able to sell HP. But the neutral phrase to describe Harry Potter would be "intellectual work".

where in Berne/WCT/TRIPS does it say that one doesn't have to formally register a work

I don't recall where, I just know that it's in there somewhere.

we may have discovered a more divisive alternative to Godwin's Law.

Meteor's Law. I like the sound of it.

#191 ::: Howard Peirce ::: (view all by) ::: May 29, 2007, 03:20 PM:

[On preview: This post is really long. And quite possibly off-topic in a bad way. Reader discretion advised.]

For the past few years I've been collecting classic radio dramas ("Old-Time Radio," or OTR), and I wonder whether the OTR story might provide an informative historical perspective on the current IP debate (not just fanfic, but RIAA/MPAA filesharing and piracy debates as well).

I've yet to find a really definitive article on OTR and copyrights (the closest thing is here, and half those links are dead).

During the classic age of American radio drama (early 30s to late 50s), copyrights were covered under the 1909 copyright law -- that is, broadcasts were not copyrightable at all. Scripts could be copyrighted (but often weren't), and only under the 28+28 years scheme. Nonetheless, at the peak of American radio drama production, there were hundreds of shows on up to five major networks (NBC Red, NBC Blue, CBS, ABC, and Mutual), each producing about 50 original episodes a year. If copyright is indispensable for promoting the production of new works, why were there so many original radio shows produced during this period, and so many sponsors willing to pay for them?

A big-budget, top-rated show like Burns and Allen or Suspense was produced with less IP protection than the typical Creative Commons-licensed website is today.

And it's not that producers were more honorable then, either. It's not uncommon to hear a Dimension X episode lift an entire script verbatim from X Minus One. Plot lines, character names, and whole chunks of dialogue will show up in differently credited episodes of The Witch's Tale, Inner Sanctum, and The Mysterious Traveler. OTR was promiscuous, incestuous, and cannibalistic.

Also, beginning when the first consumer wire recorders were made available in the late 30s, Swing Era early adopters began holding the microphone up against the speaker of their Philco console and a graymarket for recorded radio drama emerged. Some of the .mp3s you can freely download today are nth-generation dubs of those original wire recordings.

And yet none of this made any appreciable difference in either profitability or the production of new material. It wasn't IP tarnishment that did in radio drama -- it was the rise of disk jockeys (new format) and television (new technology).

Broadcast copyrights became possible in (IIRC) 1966, but you had to opt in. In 1978, broadcast copyright became automatic. By that time, however, American radio drama had all but died. The major networks could have opted in their back catalog of shows, but they were too busy disposing of the few remaining 16RPM acetates that hadn't already fallen into the hands of collectors. CBS Radio Mystery Theater was the last commercial network radio drama series, lasting from 1974 to 1982. So it was covered under copyright for four years. Nonetheless, CBS-RMT episodes are freely available on many OTR mp3 sites, and it doesn't seem that CBS Radio cares at all.

With the rise of mp3 file-sharing and podcasting, OTR is undergoing a bit of a boom right now. Had this material been strictly copyrighted in its time, it would not have been preserved by home collectors, and would have disappeared down the memory hole without a trace. And not only are we seeing old radio shows revived as podcasts and downloads, but there are now new productions of old scripts, as well as wholly original audio dramas being produced in podcast form. Most of these are under CC licenses, and therefore enjoy greater protection than the commercial products made last century.

I'm not really sure what the implications of this are, but it seems to me to be an important part of the IP story. Most of what I've written above is just bits and pieces I've picked up and tried to piece together on my own. Does anyone know of any in-depth material on OTR history with regard to copyright and IP?

#192 ::: ethan ::: (view all by) ::: May 29, 2007, 03:42 PM:

Howard Pierce #191: That kind of implies something I've been thinking for a little while, which is that copyright really isn't necessary to encourage people to create. My understanding has always been that people who create do so no matter what.

#193 ::: cofax ::: (view all by) ::: May 29, 2007, 03:50 PM:

Oy, after three days talking feminism and racism theory at Wiscon my brain is about to explode. And I think I've read too many discussions on the internet about the legality and morality and ethics of fanfiction to really get into this one.

So I'm just going to say this:

For the love of all that's holy, please stop calling us fanficcers. It indicates to me a rather derogatory and infantile impression of the practice and its practitioners.

The term used most widely in the segments of fandom with which I am familiar (i.e., media-based LJ fandom) is ficwriter. We are writers, even if the content of our writing is derivative, unoriginal, or otherwise not to your liking.

Oh, and one other thing: while text-based fic isn't all that common outside the Potter and Tolkein fandoms, it's actually the basis for a lot of the small-fandom fic written as part of the yearly Yuletide exchange.

(I'm sorry if I'm coming over cranky, but I've got a nasty headache and a full inbox.)

#194 ::: pat greene ::: (view all by) ::: May 29, 2007, 03:54 PM:

I skimmed down to the bottom after Jo's comment because there are very few things that take place in discussion that make me angrier than using rape as an analogy. Really. I started to articulate exactly why that was, and just became even more angry, so I am letting it be.

That said, I am very sorry Jo feel so upset she cannot write. That's a damn shame.

I would have left completely, but I just wanted to wish C.E. Petit, who has repeatedly said he is ill, a speedy recovery from whatever it is he has.

#195 ::: legionseagle ::: (view all by) ::: May 29, 2007, 05:08 PM:

Cofax@ 193 No: I don't agree. As a term, "fanficcers" is one I can live with. After all, compared to "lazy","selfish" and "rapist" it comes over as sort of - sweet.

#196 ::: Doctor Science ::: (view all by) ::: May 29, 2007, 05:57 PM:

Cofax@ 193: I was one of the ones who started saying "fanficcers", because I wanted one word that covered "fanfic writers and readers", and that was what came to hand. As I said in #157, I think it's ugly and if you can think of a single term *that also includes readers* I shall jump on your bandwagon.

I have refrained from mentioning Yuletide by name because I don't want to point writers to a place where they can pick at their sore spots ("Don't push this button! It ends the world! -- oops").

Writers should be aware that one of the qualifications for getting a fandom into the Yuletide challenge is that it be "a rare/obscure fandom" according to the arcane (but generally fairly accurate) consensus of the mods. The fact that this is where a lot of the lit-based fic shows up may possibly be reassuring.

It may also be reassuring that the Yuletide archive is nearly inverse-Sturgeon in quality.

#197 ::: jennie1ofmany ::: (view all by) ::: May 29, 2007, 06:15 PM:

Greg London,

If you are feeling piled-on-to, please consider taking a voluntary time out? Your online behaviour at 181 is approaching churlishness. Whether you agree with someone's appeal to authority, making an ad hominem attack on their work without bothering to examine the work in question really doesn't further the discussion, and leaves nobody any wiser.

Everyone involved in that particular threadlet, I'd also like to repeat Ethan et al's request that we leave off discussing what Jo may or may not have meant when she's not here, please?

Discuss the rhetorical ploy, discuss what other authors are on record saying, discuss whether you feel that way, great, fine. Your emotional reality is valid, as is Jo's. The insides of our heads are not always rational places. I would really appreciate it if people would avoid trying to ascribe a set of less problematic or objectionable feelings to someone who has left the virtual room. Also with the debating the validity of those feelings, or trying to "fix" them. Please?

#198 ::: ethan ::: (view all by) ::: May 29, 2007, 07:11 PM:

jennie1ofmany #197: Amen, for serious.

#199 ::: lost_erizo ::: (view all by) ::: May 29, 2007, 07:44 PM:

Dr. Science @196

I've always found "fans" to be a very useful and inclusive term.

Especially since most people who read, but don't write fanfic (like myself) do not consider the term "fanficcer" to apply to them. I am a fan. I read fanfic, but I am neither a fanficcer nor a fanwriter. Cofax is right - while the term is used by some fans (usually for lack of a better one), it's even more often used as a derogatory by those critics who are titilated by the fact that it rhymes with f*cker. "Ficwriter" or "Fan writer" are more accepted terms among those of us who are sensitive to such things.

#200 ::: Doctor Science ::: (view all by) ::: May 29, 2007, 08:05 PM:

lost_erizo @199: But "fans" doesn't distinguish between "fans who read/write fanfic" and "fans in general", and in a blog that has a lot of sf fans that seems to me to be a crucial distinction. Especially when one is trying to explain the behavior of fanfic fans to just-plain fans.

#201 ::: Fragano Ledgister ::: (view all by) ::: May 29, 2007, 08:18 PM:

Neil Wilcox #41: Er, what's wrong with Balham?

#202 ::: Greg London ::: (view all by) ::: May 29, 2007, 08:22 PM:

Whether you agree with someone's appeal to authority, making an ad hominem attack on their work

I quoted a review that described the author's position on copyright. That's far from an ad hominem attack. If I'd said "his father was a hamster and his mother smelled of eldeberries", then that would have been an ad hominem.

#203 ::: Bruce Cohen, SpeakerToManagers ::: (view all by) ::: May 29, 2007, 08:26 PM:

jennie1ofmany @ 197

Well said. Thank you.

#204 ::: cofax ::: (view all by) ::: May 29, 2007, 08:30 PM:

Doctor Science: I generally go with "readers" and "ficwriters". In context, it's not that hard to determine one is speaking about readers of fic, specifically. And all ficwriters are also readers of fic, pretty much by definition.

Of course, I also find the use of the terms "fics" and "fanfictions" loathsome to my aesthetic sensibilities. What's wrong with "stories"?

Oh, and thanks for the note on Yuletide--I sit corrected, and won't repost the link. If I could, I'd edit it out.

#205 ::: Chris Sullins ::: (view all by) ::: May 29, 2007, 08:55 PM:

It seems to me that Packbat's second bullet point is phrased so as to obscure the true intent:

A copyright ... 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.

Unless I'm mistaken, the actual goal should be to minimize the "harm done to the public by monopoly" and to maximize the "good provided by encouraging the creation of new works." To balance the two would render the law pointless, as it would have no net gain.

#206 ::: lost_erizo ::: (view all by) ::: May 29, 2007, 09:03 PM:

Dr. Science @200

The problem is that the term "fanficcers" isn't inclusive either. As I said - I would object to being called a fanficcer, not only because the term offends my ear, but because I don't think it applies to me - and I probably read upwards of 10 fan stories a day. You seem to be using it differently than most - in most forums that I follow the term only applies to ficwriters (in which case there's no reason to not use the more acceptable alternative). Of course there is the added problem of people who don't really believe that anyone actually reads fanfic except other ficwriters (because obviously this is a small and isolated phenomenon, right?), and so act as if the term "fanficcer" were inclusve, but only because they really don't believe in the existence of readers of fanfic - they merely think of it as some sort of masturbatory activity in which people support each other's habit.

I'm pretty much in aggreement with Cofax here - there's not really a need to come up with an entirely new snappy-sounding lexicon of terms. Slang evolves fairly orgaincally so these terms do get invented, and make the rounds, and aquire connotations, and eventually either do or do not appeal to or offend some of us. But in general, I prefer plain english.

#207 ::: Doctor Science ::: (view all by) ::: May 29, 2007, 09:20 PM:

lost_erizo @206:

Thanks for explaining the problem, I either hadn't come across that usage or had just assumed that people were meaning the same thing I am.

I'm looking for a word (or two) that's short for "the community of fanfic writers, readers, critics, vidmakers, and artists: the creative fanworks & friends gang." I'd say Medusas, but to be really useful a word has to be generally understandable even if it's not widely used.

Over in our corner of the world, I'll say "fans", "readers", or "writers". But on a blog that's full of sf fans, readers & writers those terms seem likely to cause confusion. I'm pretty sure I've said "fanficdom" at some point -- do you think that's better?

#208 ::: Greg London ::: (view all by) ::: May 29, 2007, 09:51 PM:

Chris@205: the actual goal should be to minimize the "harm done to the public by monopoly" and to maximize the "good provided by encouraging the creation of new works." To balance the two would render the law pointless, as it would have no net gain.

Without copyright, the game theory board finds a quiescient point. The people who create new works are ones who do so because they love to create new works and are willing to give it away for free, do so because they figure they can make a living off of indirect works, do so because they can make a living off of commissioned work, or similar solutions.

With copyright, the game theory board has a new entry, and finds a new quiescient point. The people who create new works are pretty much the same as without copyright plus people create works because they can make money off of their direct sale.

Copyright law puts in place a monopoly of exclusive rights to the author that did not exist before. This monopoly is the "harm done to the public". WIthout copyright, the public gets to enjoy all works fully. With copyright the public must suffer some restrictions. That is the cost.

The benefit of copyright, the Public Good, is that a new set of authors will create new works.

The idea is that the cost of copyright, the rights taken from the public and granted exclusively to the author, should balance with the benefit, the new works that authors create because of the existence of copyright.

The theory, though, is that more works are created with copyright than without.

This may not actually prove to be the case in some situations. Copyleft licenses used in free software and similar projects are, essentially an attempt to license the owrk such that it exists in a state as if there were no copyright, everyone can copy, distribute, and modify the work, and no one can assert a monopoly on the work.

But that's a different discussion.

#209 ::: Doctor Science ::: (view all by) ::: May 29, 2007, 09:58 PM:

Howard Peirce @#191:

As we say in fanficland, you should totally write that. With footnotes and working links and the whole nine yards. Fascinating and important, IMHO.

#210 ::: Dave Luckett ::: (view all by) ::: May 29, 2007, 10:48 PM:

I don't know what I'd do if someone wrote
Will-Silvus slash. Shed tears, I would suspect.
A joke: the storywhore demands respect
The morning after. Do I get a vote,
When I'm the one who sold it for a groat?
It's not as though I was seduced. Reflect -
I'd pimped myself. And worse, in retrospect,
I would again. I have no antidote

Save this: the tale's not owned by any teller,
And not by those to whom the tale is told.
It can't be owned. No buyer, and no seller
Can trade the thing itself. It can't be sold.
And if it isn't mine, then by that fact,
My tattered virtue yet remains intact.

#211 ::: Kathryn Allen ::: (view all by) ::: May 29, 2007, 11:05 PM:

#204 I was going to remark that the term ficwriter (and I've not come across it in lj half as much as I have fanficcer and variations) appeared to be trying to obscure the nature of the writing involved. But this pretty much says it for me.

And I don't want to try and obscure that I've written fanfiction, or that I will do so again at any time the mood strikes.

Nor have I ever known people to change their opinion of something/someone simply because they're asked to use a different descriptor. Indeed, those wishing to make derogatory remarks can do so using any word which accurately describes the group they wish to despise.

Fanfiction deserves a degree of respect. It's the result of an urge to communicate creatively and it plays a positive role in many people's lives -- giving it merit quite separate from the quality of the writing involved. (Just as a good kickaround has merit even though most of those involved have two left feet and will never play in an organised team, let alone professionally.) Yes, some part of the phenomenon is about writing, and good writers can be found playing in fanfiction sandboxes -- but it isn't *just* about writing, or reading.

[And I find it amazing that people should praise kids who read Harry Potter, for reading, but make negative remarks about the literacy of those who dare to try and do more. Yup, much better that they sit watching tv and playing video games until they no longer have the urge to write... or read.]

BTW one writing lesson I've learnt -- being specific in ones choice of words makes for far more powerful writing than resorting to generics. frex a sword is just a sword, but an estoc or an epee or a cutlass or scimitar... is a detail. And that's where the devils are :)

#212 ::: lost_erizo ::: (view all by) ::: May 29, 2007, 11:09 PM:

Dr. Science @207

BTW I probably should have said "my problem" rather than "the problem" since, fandom being as fragmented as it is, it's entirely possible that there are major segments of the community that use it that way and I am merely unaware.

I think "fanfiction community" works fairly well - I consider myself part of the community even if I don't write fiction. OTOH while the fiction communities and vidders overlap to a large extent, most people wouldn't see that term as including vidders and fan artists...

I'm stumped. It's so much easier to critique than come up with an actual solution.

Good luck :-)

#213 ::: Joseph Eros ::: (view all by) ::: May 29, 2007, 11:12 PM:

One difficulty with the phrase "intellectual property" is that it's much less of a rhetorical reach as a legal term than in normal usage. In legal doctrine, "property" can mean any of a wide variety of ownership or quasi-ownership interests. You can be said to have a property right to a government benefit like social security, for instance, even though you can't sell your right to that benefit. So lumping together patents, trademarks, copyrights, and trade secrets and referring to them all as "intellectual property" makes sense in legal discourse.

Some IP maximalists like Mark Helprin, though, try to go backwards and argue that because we call (e.g.) copyrights "intellectual property" we should let copyrights last as long as the ownership rights to real estate, which we also call property. That is as silly as saying that a horse chestnut is equivalent to a chestnut horse.

#214 ::: miriam beetle ::: (view all by) ::: May 30, 2007, 12:22 AM:

dave luckett,

i think that's my favourite of yours ever. beautiful, true, & really funny.

#215 ::: C.E. Petit ::: (view all by) ::: May 30, 2007, 01:23 AM:

175 — The Copyright Act explicitly includes a limited variety of moral rights in § 106A, for certain works in the visual arts.
   Ironically, this objection — that US copyright law doesn't include moral rights — is yet another example of tunnel vision. When the US joined the Berne Convention, the Senatorial ratification language explicitly stated that our trademark law (the Lanham Act) provided the necessary amount of droit d'auteur.

181 — Instead of googling Professor Goldstein, try reading Professor Goldstein's work. He is most emphatically not a "copyright maximalist," as is apparent on even a cursory reading of his three-volume treatise on copyright's treatment of fair use. Goldstein is not shy about stating his opinion... but unlike the market leader (Nimmer), Goldstein identifies his opinions as such and not as uncontrovertible. This kind of ad hominem attack on authority even worse than accusing someone of resorting to "argument from authority."

187 — At a very deep level, the suggestion to replace "intellectual property" with "monopoly" is circular, as a monopoly is clearly a property interest (in the sense noted in message 190). It's merely a convenient shorthand that has arisen in the US since the early part of the 20th century. I won't bore you with the details... they really are boring... but they ultimately come from the civil-procedure doctrine of "standing" more than from anything else.

190 — The Berne Convention prohibits "formalities" for the "enjoyment" of copyright. That's why registration is no longer required in the US to have a valid copyright. Registration is, however, an element of a copyright claim — it's required to get into court. (Some courts and commentators think that the registration requirement is jurisdictional, but recent decisions in noncopyright areas call that into question, as does simple logic.) Then, too, there's the whole "renewal" fiasco, which is clearly a prohibited formality under the Berne Convention.
   The real problem is that the Berne Convention is not self-executing — that is, it doesn't itself establish any legal rights for individuals. It establishes certain requirements for nations to become members of the Berne Convention, but explicitly defers to member nations' statutes on the details.

#216 ::: abi ::: (view all by) ::: May 30, 2007, 04:30 AM:

Dave @210
That's fantastic. One of those sonnets that makes you have to double-check that it actually rhymes, because the language falls so naturally together. And a beautiful, logical working out of first premises into final consequences.

Well, well done.

#217 ::: Bruce Baugh ::: (view all by) ::: May 30, 2007, 05:22 AM:

C.E., I think that in fannish circles, the emphasis on "monopoly" over "property" serves a useful function. We have a fairly strong libertarian and conservative legacy, thanks both to the views of old-time (and some current) creators and a continuing streak within fandom itself. There's a generally circulating view of property as something innate, or at least something that comes before the state in a moral hierarchy. (There's also some reinforcement for this from the left and elsewhere with some kinds of anarchist, the Georgist single-tax enthusiasts, and so on.) A granted monopoly, on the other hand, clearly begins with the state, is a matter for negotiation, and can be changed or revoked without threatening a fundamental liberty.

I realize that that's not the kind of distinction a legal professional would make. But as you and others have explained about (for instance) the differences between torts and criminal suits, it connects to issues that the law does consider. And it is a very real issue in policy-making.

#218 ::: Dave Luckett ::: (view all by) ::: May 30, 2007, 06:14 AM:

abi, praise from you and miriam beetle is praise indeed. You both know of what you speak.

#219 ::: Neil Willcox ::: (view all by) ::: May 30, 2007, 08:27 AM:

Fragano @201 - I was not very clear. There's nothing (much) wrong with Balham. I have a couple of friends who live there. It also has a pub called the Duke of Devonshire, which I've been in a few times*. The talk of a bar with a sign about searching next to [Something or other about the Duke of Devonshire] put me in mind of it. I meant to make a two pronged joke of some sort, with one prong being about the pub, and one being something like what Xopher said in #42. I failed due to being dozy.


* Quite a good selection of real ales. Food average.

#220 ::: Alan Braggins ::: (view all by) ::: May 30, 2007, 09:46 AM:

#208 "Copyleft licenses used in free software and similar projects are, essentially an attempt to license the owrk such that it exists in a state as if there were no copyright"

Not really - you can put the work into the public domain if you want to do that. However, literary works don't really have the same distinction between source and executable forms that allows something to be distributed in a usable form while keeping the easily modifiable form a secret, which GNU style copyleft forbids, relying on copyright to enforce it.
(BSD style free software licences are closer to the public domain/"as if there were no copyright" situation than copyleft ones are.)

#221 ::: Catherine Cook ::: (view all by) ::: May 30, 2007, 11:18 AM:

People who argue that "fanfic is illegal" seem to forget the existence of the Sherlock Holmes pastiches, which have been around -- without the original author's express permission -- for well over a century. In fact, August Derleth made a career out of the "Solar Pons" series of Holmes pastiches (http://en.wikipedia.org/wiki/Solar_Pons); Conan Doyle's son Adrian tried to get him to stop, but was ultimately unsuccessful. (Derleth had his triumphant revenge on Adrian with his Solar Pons story "The Adventure of the Dog in the Manger".)

More on fan fiction can be found here: http://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction

#222 ::: Greg London ::: (view all by) ::: May 30, 2007, 12:25 PM:

me@208: "Copyleft licenses used in free software and similar projects are, essentially an attempt to license the owrk such that it exists in a state as if there were no copyright"

Alan@220: Not really - you can put the work into the public domain if you want to do that.

No. Public Domain licenses allows proprietary forking. Which means it results in a condition where the monopolistic function of copyright is still available. Copyleft licenses try as best as possible to make proprietary forks difficult. If you distribute a derivative, it much be licensed under the original license, not All Rights Reserved.

If you operate inside of a society with copyright law and place a work in the Public Domain using a BSD license or similar, someone else can still create a derivative and put it under a monopoly.

If you operate inside a society with copyright law and want to approximate as close as possible a society with no copyright at all, then putting a work under a copyleft license is the best you can do. The net effect of copyleft is to remove almost all other monopolistic tendancies of copyright. At least as far as the work licensed copyleft is concerned.

#223 ::: Alan Braggins ::: (view all by) ::: May 30, 2007, 12:46 PM:

#222: I see your point now, but if there was no copyright, attempts at proprietary forking could still exist, but relying on difficulty of decompiling, dongles, and suchlike. (Again, this is irrelevent to literary works rather than software.)

#224 ::: shadowsong ::: (view all by) ::: May 30, 2007, 03:46 PM:

Reposted from the wrong thread:

Marginally related to this entry: an organization calling itself "Warriors for Innocence" has reported a slew of journals to Livejournal and SixApart for having particular words listed in their journal interests list. Unfortunately, while their intended target was pedophiles and the like, they managed to get almost as many rpg and fanfic blogs permanently deleted as they did journals actually espousing illegal activity. More information from some fic writers here and here.

#225 ::: shadowsong ::: (view all by) ::: May 31, 2007, 12:38 AM:

Aww, my comment got held for disapproval. :( That's what I get for posting a comment with links in the wrong thread and then trying to repost it.

#226 ::: Meg Thornton ::: (view all by) ::: May 31, 2007, 07:47 AM:

A few quick comments from a fanfiction writer:

Firstly, the two fandoms in which I've been most prolific have been fandoms where the original creator of the characters is dead (Lord of the Rings, and Blake's 7). I prefer those fandoms, because at least I don't wind up discovering a plot or series of characters I've invested much time and skull sweat into are suddenly canon-incompatible (this happened to me with two pieces of Pirates of the Caribbean fanfic after watching "Dead Man's Chest". One of them was, fortunately, salvageable after seeing "At World's End". The other is not, save as an AU). That's a personal quirk, and I doubt the majority of fanwriters would agree with me.

Secondly, my take on fanwriting is that it's part of the storytelling tradition. It's been updated for the times and the technology, but essentially, when I sit down at the keyboard and put the characters of Blake's 7 through a long and convoluted plot involving the archetypical hero's journey, I'm participating in a tradition which goes back before Shakespeare, before Homer and before the Bible. I'm telling a story to my reader (who is usually me, first and foremost) and I'm using characters they know.

Thirdly, as a fanwriter, I try to colour outside the lines, so to speak. I'm interested in gapfilling, in what happens around the edges of a story. Most of my fiction is peripheral to the canon I'm writing in - I'm using the canon characters and canon situations as a place to start from, rather than as an end point (a letter to Minerva McGonagall of the Harry Potter books from a great-niece in Australia, for example). Oddly enough, where the writer is no longer alive and writing, I'll tend to re-examine their work, simply because I know it's fixed, and nothing I do can break it. I can work on my self-insertion into Lord of the Rings. I can insert a third female character into the crew of the Liberator. I can change the sex of the main character, and see what happens when you have a woman as the King of Gondor and Arnor (this actually turns out quite interesting), or where you have Roja Blake fighting the Federation. I can do all of that, and know that I'm not breaking the canon works - rather, I'm using them as a way of working out how someone else did it, and of figuring out what's necessary to the plot, and what's necessary for the character, and what alters if you push it *thus* rather than *so*. I can use these as a test bed for my own creativity, and see what happens.

Finally, the main reason I write is for purely selfish purposes. It's part of the string of things I do that let me know I'm sane. If I'm not writing, I'm depressed. I try to avoid writing in fandoms where a living author has said that they would prefer not to have fanfic written - and if I *do* write it, I don't publish it. I don't pretend that my work is the equivalent of the writers whose work I'm playing with (although I do hold myself to a high standard of spelling, grammar and word usage - which I tend to consider to be basic respect for my reader). Not everything I'm a fan of inspires fiction (for example, I'm definitely a fan of Terry Pratchett's Discworld books, but I cannot write fan fiction for them to save my life - the characters just don't want to play). Not everything that inspires fiction is something I'm particularly fond of (I wouldn't describe myself as a fan of the Harry Potter books and characters by any means - but one notion sparked a ficlet). I write because I have to, and because I can. I write fanfic because that's what I tend to finish most of the time (my originals are caught in the whole problem of epicyclical rewrites and insufficient worldbuilding).

(Now aren't you glad I didn't go on at length?)

#227 ::: John C. Bunnell ::: (view all by) ::: May 31, 2007, 01:40 PM:

Coming in rather late:

Item: One technical legal point that I haven't seen touched on yet -- directly, at any rate -- is the distinction between writing fanfic and distributing it. Writing fanfic, in and of itself, is not a legally prohibited activity; where most of the legal problems noted above arise is in the act of circulating the work thus produced. [This has at least some bearing on the responses to Jo Walton's concerns far upstream.]

Item: Many posts upstream dance around a theory I've been formulating for awhile now -- namely, that to the extent that storytelling can be divided into two types, the most useful distinction is not "fanfic" vs. "profic", but rather "shared/collaborative creation" vs. "individual/singular creation". Examples of shared creations: most film/TV; role-playing games; live theater; most comics (particularly the Marvel & DC superheroic universes). Examples of individual creations: most "original" prose fiction (reading "original" as "created & copyrighted by a named author"), such as Jo Walton's novels. Note that even this distinction is blurrable, as when the author of an individual creation (Rowling, Rice) licenses film rights.

The shared-vs.-singular distinction provides the best context I've found for grappling with the issues Jo Walton raised. It also makes explicit a handful of premises that I have found some pro writers are reluctant to acknowledge:

(1) One cannot reliably evaluate the quality of shared-creation storytelling based on its economic origin. There is fanfic with good storytelling values; there are also pro tie-in works with poor storytelling values.

(2) The "itch" to create seems to come in two distinct flavors; some people (like Jo Walton, above) find pleasure in creating their own worlds, while others find pleasure in contributing to shared visions -- and these urges also operate independent of any pro/fan distinction.

(3) Today's commercial publishing and media landscape -- not surprisingly, considering -- is taking more and more interest in shared-vision storytelling as a for-profit enterprise. The rise of role-playing "house universes", the expansion of tie-in fiction well beyond SF/F, and most recently the FanLib venture all speak to this.

#228 ::: John C. Bunnell ::: (view all by) ::: May 31, 2007, 01:46 PM:

Oh, and harking all the way back to disclaimers, herewith one that I think is at least as amusing as all the fanfic examples quoted above:

>> Based on the characters created by Carolyn Keene

Where did I see this? Last night in a theater lobby, on the Hollywood studio poster for the upcoming Nancy Drew movie.

#229 ::: AliceB ::: (view all by) ::: May 31, 2007, 03:14 PM:

John Bunnell, your point about shared vs. individual creations I think is well taken. The difficulty, from a legal standpoint, for fanfiction, is that copyright/trademark applies equally to both kinds of creations. And when we talk about "droit d'auteur", the conversation makes sense regarding an individual work, but becomes bizarre regarding a shared work. The moral compunction to comply with what the author wants is more difficult if more than one creator is involved.

This illustrates for me one of the things I find so frustrating about discussions about copyright. We treat it as a monolithic right*, and yet it's supposed to apply to novels, source code, lyrics, music, film, plays, paintings, illustrations, essays, sculptures, etc., as if these were interchangeable. Now I know this is a simplistic view, since there are provisions and case law specific to different media (e.g. the use songs)--but the general provisions are the same. Requirements that may make sense regarding print, make less sense when talking about computer programs that become obsolete within a decade, and even less sense in media where it evolves by constantly incorporating other people's work (I'm thinking music). I don't have a nice solution to this, and I'm enough of a pragmatist to realize that laws have to be written with general provisions, because there will be media ten years from now that none of us have even thought of, and that we will need to figure out how to fit into IP laws without having to go back to Congress (or the EU, or whomever) to figure out what to do. But dang, I wish we did better.

* or wrong, depending upon one's point of view

#230 ::: Marilee ::: (view all by) ::: May 31, 2007, 08:56 PM:

shadowsong, #224, posts with multiple links get held to make sure they're not spam. Someone will get around to letting it loose.

#231 ::: Keith R.A. DeCandido ::: (view all by) ::: June 04, 2007, 01:50 PM:

Coming late to the discussion, having seen my name taken in vain.

I think I'd rather dive naked into a vat filled with live squid than get into this discussion all over again, as my original LiveJournal entry started a shitstorm of epic proportions that mostly resulted in several hours of my life that I'll be begging for on my deathbed.

I will say two things:

1) Everything Doctor Science says in post #9 about the Star Trek line is, bluntly, wrong. It might've been true when he worked with John Ordover, but John hasn't been with Pocket for four years now, and he wasn't the only game in town then.

2) Joss Whedon and Mutant Enemy don't own Buffy the Vampire Slayer or Angel. Neither entity has any legal claim on the property whatsoever. They are both owned by the 20th Century Fox Film Corporation, and anything that claims to be a legal disclaimer that names those two and does not name Fox is full of shit. If you're gonna do it, do it right.

#232 ::: Robin Z ::: (view all by) ::: June 05, 2007, 08:10 PM:

Long, long belated reply to 205:

You've got a point – my wording is incorrect. I should have said, "[...] it should be restricted to precisely as long a term as would make equivalent the marginal harm done to the public by monopoly and the marginal good provided by encouraging the creation of new works" – a phrasing which basically mean "maximize the public good". I've added a note to the post.

#233 ::: inge ::: (view all by) ::: June 06, 2007, 02:08 PM:

# 106 Clark E. Myers: Three points on giving RPG characters to other players or not, one in comparision to fanfic, one in comparision to board games, the last one mostly for LARPs.

First, what happens in an RPG is canon unless the GM says it isn't. Letting someone else play your character is like letting someone else write a chapter in your novel, except that you can't review or edit. Sometimes you want this kind of collaboration, often you don't. Letting someone draw a "clone" of a character (using the same concept and stats for another campaign) would be much closer to fanfic, IMO. Among the people I play with, over-identifying with your character is frowned upon and GMs often clone good characters to use them as NPCs or give them out at convention games. So, continuity is a problem, not the uniqueness of a collection of stats.

The second point is more in comparision to board games or card games and more tactical. Characters, like Magic: The Gathering-decks, tend to have very specific strengths and weaknesses, and players not experienced with them might handle them in a way that damages the character. I wouldn't let a bad or inexperienced player play my poker hand at a tourney, and I wouldn't hand a tricky character to someone who doesn't know exactly how those numbers on the sheet work together. Again, losing characters, or their valuable artifacts, or their carefully built reputation would become canon, and hard to recover from.

And finally, just as no two actors interpret a role alike, no two players play a character the same way. You are acting in real time, little time to think, little chance to check previous canon for consistency. The voice, the face, the mind, and in LARPs the clothing and the physical skills, are not the same. Unless the character design has been done very carefully, the chance that your co-players will see two characters which are different in every regard but name and numbers as one and the same is close to nil.

I have actually done a lot of collaborative RPG play (shared characters, using charcters as NPCs, writing fanfic about characters) and a lot of GMing (where I occasionally have to drag the character of an absent player along), and yes, it can be done, but it's not easy.

But neither is fanfic.

#234 ::: Chris ::: (view all by) ::: June 07, 2007, 12:31 PM:
Joss Whedon and Mutant Enemy don't own Buffy the Vampire Slayer or Angel. Neither entity has any legal claim on the property whatsoever. They are both owned by the 20th Century Fox Film Corporation, and anything that claims to be a legal disclaimer that names those two and does not name Fox is full of shit. If you're gonna do it, do it right.
True. This underlines the disconnect between legal and moral arguments about copyright.

Many people feel that the author of a creative work has some moral right to say something about what other people do with it. But the law is quite otherwise. Copyright, long or short, doesn't necessarily work for the author. No extention of copyright on Buffy will feed Joss Whedon's hypothetical starving grandchildren - it won't even feed Joss himself as he works on creating something else that people might like to see. (Joss isn't exactly a sole author, either, which confuses the issue even further.)

All the crocodile tears about impoverished authors and other people using their creative work in ways they wouldn't approve of attempt to obscure the fact that copyright as it presently exists isn't necessarily, or even usually, for the authors anyway.

#235 ::: sherrold ::: (view all by) ::: June 07, 2007, 01:17 PM:

Keith says:
Everything Doctor Science says in post #9 about the Star Trek line is, bluntly, wrong.


So I went back and looked, and in #9, Dr Science said, the reasons why Trek fanfic can be better than Trek profic (i.e., tie-in novels) were:

a) it is not done to a tight deadline

Well, if profic has any deadline at all, it's tighter than no deadline, which is what most fanfic has. Dr. Science wins, barely.

b) it is carefully edited

Hmm, this is a hard one. I have no trouble saying that the average editor for a publishing house has better editing skills than the average beta-reader in fandom. On the other hand, when fans complain about editing in profic, they're usually talking more about continuity than dangling modifiers, and it's entirely possible that the beta reader has more Trek-specific canon knowledge... I give it a tie.

c) fanfic writers can pull out all the writerly stops (style, POV, allusion, time-frame, the whole literary arsenal).
Dr. Science loses on this one -- In general, tie-in novels aren't as restricted as this makes it sound.
d) fanfic writers can let the characters change and evolve beyond the tight bounds set by the publisher's interpretation of canon.
Oh *yeah* -- and this is where fanfic tends to win. To a modern TV audience, hot for narrative arcs and character growth, the 'reset at the end of every episode/novel' imperative of most tie-in novels can be enormously unsatisfying, and the subset of fanfic that does take characters out of their comfort zone and give them a shake or two? Worth the non-existent price. Dr. Science wins, and wins big.

#236 ::: Nathanael Nerode ::: (view all by) ::: June 25, 2007, 03:29 AM:

Such an interesting discussion; I keep deciding not to comment on things after writing comments.

There's a generally circulating view of property as something innate, or at least something that comes before the state in a moral hierarchy. (There's also some reinforcement for this from the left and elsewhere with some kinds of anarchist, the Georgist single-tax enthusiasts, and so on.)

Interesting. From a somewhat anarchist philosophy, I suppose I would agree what property comes before the state in a moral hierarchy; but it is most certainly not innate. The only things which are innately, morally your property are your body and your mind (that "property interest" *is* absolute). I tend to believe that nearly all other property is artificially constructed by social agreement (good), or by application of force (bad).

It is a pity that most people think of property as innate.

#237 ::: Nathanael Nerode ::: (view all by) ::: June 25, 2007, 03:57 AM:
With copyright, the game theory board has a new entry, and finds a new quiescient point. The people who create new works are pretty much the same as without copyright plus people create works because they can make money off of their direct sale.

This description is inaccurate, because copyright covers derivative works, and those are defined broadly. If copyright did *not* cover derivative works, this would be true. But it does. Because of that, there is a class of people who *would have created new works* based on older works, who *do not create those works* or *do not publish them* because they are afraid of copyright infringement charges.

This is a serious problem even when it only applies to *translations* -- better translations can and do get suppressed in favor of authorized translations or no translations at all, except for public domain works -- let alone other sorts of derivative works.

And the problem is because copyright is an exclusion right. As an economic right, it makes sense to allow the original author to make money off translations. It make no sense to allow him or her to suppress translations.

Copyright should be unbundled. There should be a short set of moral rights, mostly related to accurate attribution, retained by the author and nontransferrable -- and containing *no* ability to prevent the creation or publication of derivative works, or to prevent the reprinting of once-published works.

Then there should be a set of economic rights, giving the author the right to all profits from a copyrighted work or its derivatives unless some other agreement is made -- this would insulate not-for-profit operations permanently (it's wrong to suppress them, and they can't be suppressed effectively anyway), while preventing anyone else from making money off the work without the author's permission. But again containing *no* ability to prevent the creation or publication of derivative works, or to prevent the reprinting of once-published works.

In actual fact, most people will happily pay for "authorized" editions even if there are unauthorized editions floating around. A combination of strict laws making it clear which editions are approved by the author, and which aren't (very trademark-like), and laws making it clear that without the author's permission no money could be made off publication, would most likely make authors just as much if not more money than the current system. (More, because while the author could sign over some economic rights to a corporation, the author could *not* alienate the right to identify the work as the authorized edition, giving the author some permanent leverage...)

Unfortunately, obsolete and badly-written treaties from the Berne Convention on down prevent this sort of sane system, because they require countries to create copyright systems featuring exclusion rights.

#238 ::: Nathanael Nerode ::: (view all by) ::: June 25, 2007, 04:14 AM:

P J Evans wrote:


I've been on projects where it felt like 'my kid', and still does more than fifteen years later. (I get unhappy when people mistreat the database I worked on.) The project I'm on now feels the same way, and it has years yet to go.


Turning stuff loose for other people to play with hurts. When their idea of 'play' breaks the stuff, it hurts worse.

The thing is, you *have* to let them -- or rather, control of them -- go. You even have to let your *actual kids* -- or rather, control of them -- go. It's a moral duty in the case of kids.

In the case of things like fanfic, the *non-scarcity* of intellectual work makes it a lot easier. With real toys -- or with intellectual work where you really lose control, as when Prince's record company was controlling the name "Prince" and wouldn't let him us it the way he wanted, or if your copyright is taken by a corporation which can prevent you from making sequels -- there is a serious danger that it might get broken. (It makes perfect sense to me that many authors won't read fanfic based on their work because they don't want to be accused of stealing from the fanfic. It would make more sense, however, to agree to read fanfic if and only if the fanfic writer gave them an unlimited license *before* they read it....)

But with people making derivative works, like fanfic, remember: they're only playing with a *clone* of your work, not the original. You still have the original, and nothing they do can touch it. It's not like with physical objects.

When dealing with this emotionally, I think this takes me to the concept of personal canon. If someone writes "your" characters doing something you don't accept, remember, those aren't your characters in your personal canon -- those are just clones, parodies of your characters.

Heck, some of us do this mentally with books by the same author: I don't consider _Mostly Harmless_ to be "real" in the universe of the Hitchhikers' Guide books; it's just a bad misinterpretation of the characters by someone who didn't get them right. Which happens to be the same author, but that makes no difference.

#239 ::: Bruce Baugh ::: (view all by) ::: June 25, 2007, 04:53 AM:

Sherrold, about the last point in your #235: When I look at shelves of tie-in novels these days, it's far from clear to me that the stand-alone, self-contained, everything-resets novel actually is the dominant species anymore. To judge from Fictionwise, for instance, 28-29 of the last 30 ST:TOS novels, at least 20 of the last 30 ST:TNG novels, 15-20 of the last 30 ST:DS9 novels, and more than half of the 19 ST:V novels listed there were part of series, from 3 books on up to 8 or more, and several of those series were themselves sequels to earlier series. The New Frontier and SCE series both have multi-volume storylines and overall continuity. And so on.

Now, I realize that although Trek accounts for a lot of shelf space, it's not the whole show, to put it mildly. But given just how strong the presence of ongoing storytelling is throughout the Trek family of lines, I do have to wonder if the old fannish objection to the self-contained stand-alone may be no longer as big a deal as it once was, with publishers responding to the desire for more just as fanfic does.

#240 ::: Lee sees something mighty suspicious ::: (view all by) ::: January 29, 2009, 03:26 AM:

The text of #240 is unexceptionable, but I think the website link from the username is spam.

#241 ::: [silinmiş spam] ::: (view all by) ::: January 05, 2011, 03:28 PM:

[217.131.169.38 gönderdi]

#242 ::: Serge sees SPAM ::: (view all by) ::: January 05, 2011, 03:31 PM:

Say it again - wiith more feeling.

#244 ::: praisegod barebones daha SPAM görüyor ::: (view all by) ::: January 13, 2011, 08:43 AM:

Well they're nothing if not persistent. But I'm beginning to feel a bit like a guy wandering round a supermarket with a pack of sugar with a hole in it.

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