Why Do Content Creators Get Control Over Derivative Works?

from the trying-to-figure-it-out dept

Doug Lichtman's latest IP Colloquium takes on the question of derivative works, mainly discussing the infamous Harry Potter Lexicon reference guide that a judge recently barred from publication. In the program, Lichtman talks with the General Counsel of Warner Bros. studios, Jeremy Williams, and Anthony Falzone from Stanford's Fair Use Project. Unless you're really into some of the very very narrow details of copyright law (such as the differences between the various sections in copyright law), much of the discussion may not be that interesting. There were a couple of things worth noting, however. I tended to think that Williams' views on fan fiction made a lot of sense -- where he basically said that studios recognize that it's a bad idea to stop fan fiction, and that the studios have to learn to let go of trying to control everything. I was actually quite surprised that Lichtman pushed back on this point, with an argument that, to me, makes little sense: suggesting that if an artist could potentially at some future time benefit from creating their own such works, then any derivative work should be seen as infringing and likely stopped.

I thought that Falzone did an excellent job rebutting such suggestions from Lichtman later in the podcast, leading to some points at the end where Lichtman recognizes that many of the issues around whether or not derivative works should be allowed are actually redundant to questions of fair use. But he does claim that there are a few situations where fair use and derivative works don't overlap. However, I had trouble finding any that make sense. Lichtman gave an example of a teacher's answer key to a college textbook, where he notes that the answer key probably doesn't substantially copy the original work, but could be controlled by the original publisher via a "derivative work" claim of Section 106(2) in the Copyright Act.

But, to me, this seems ridiculous on a basic common sense reading. I can't fathom how anyone can (at least honestly) claim that copyright really has an idea/expression dichotomy and then say that Section 106(2) makes any sense at all. What's wrong if someone else wants to produce an answer guide to an original textbook? Why would it ever make policy sense to deny such a right? In most cases, you would assume that the original creator of the textbook would have a better understanding of the topics and the answers, so an "unauthorized" answer key is unlikely to be as valuable. But why should it be prevented? On top of that, if the answer key is just answering questions, then how could it be infringement? Those answers are accurate "facts" responding to questions. If an answer key is infringing, then wouldn't that make student answers infringing as well?

In listening to the podcast, the only thing I could think was that I can't come up with a single example where it makes sense to give the original creator the right to derivative works. I recognize that may be an extreme, but take a look at cases like recent banning of an unauthorized (and, apparently, not very good) sequel to Catcher in the Rye. I can't see any reasonable explanation for how a society that prides itself on freedom of expression and encouraging creative works would ever deny such a right. It does not harm the original work in any way. It does not remove the ability of the original creator to create their own derivative work in any way. And it's hard to imagine a situation in which an unauthorized derivative work would take away from the ability of the original creator to profit. Does anyone honestly think that if J.D. Salinger wrote an actual sequel to Catcher in the Rye people wouldn't buy it because they'd already bought the unauthorized sequel written by some other guy?

So if it's true that copyright only protects the expression and not the idea, how does control over derivative works make any sense at all?


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    GeneralEmergency (profile), Sep 14th, 2009 @ 5:56pm

    Ohhhh...The irony...

    "If an answer key is infringing, then wouldn't that make student answers infringing as well?"

    Oh, God how I wish I was a law student today getting ready to take a test in my "Intellectual Property" class and suddenly be armed with this juicy-bit-o-knowledge.

     

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    Steve Vander Ark, Sep 14th, 2009 @ 6:09pm

    the Lexicon

    Did Tony mention that the Lexicon book was in fact published in January and is selling very well? So there's always more to the story than a lot of people realise.

    Steve Vander Ark
    The Lexicon

     

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    ChurchHatesTucker (profile), Sep 14th, 2009 @ 6:12pm

    Re: the Lexicon

    Yes, and nice going.

    The point being is that it shouldn't be up to authors to approve critical works (and the HPL was one) of their works. The reasons are too frakin' obvious to point out.

     

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    Anonymous Coward, Sep 14th, 2009 @ 6:46pm

    "I recognize that may be an extreme, but take a look at cases like recent banning of an unauthorized (and, apparently, not very good) sequel to Catcher in the Rye. I can't see any reasonable explanation for how a society that prides itself on freedom of expression and encouraging creative works would ever deny such a right."
    ----------------

    The Catcher in the Rye knockoff wasn't banned from existing, it was simply banned from being sold. I can't see any reasonable explanation for how a society that prides itself on innovation over regurgitation would ever allow such obvious parasitism.

     

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    Francisco, Sep 14th, 2009 @ 6:52pm

    First of all, in theory at least, you the original creator has control over derivatives works because any derivative work uses the expression (and not only the idea) of the original creation. Thus, the Harry Potter Lexicon employs elements from Harry Potter such as characters, locations, etc.
    I am a lawyer and because of my work I deal with IP laws a lot and while understand the theory, the practice can less clear: there are lots of time when I can't answer if a work is a derivative one or merely it is inspired on the same idea.
    Finally, in continental law, you have an additional reason for prohibiting derivative works wihtout the author's authorization: moral rights.

     

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    Mike Masnick (profile), Sep 14th, 2009 @ 7:28pm

    Re:

    The Catcher in the Rye knockoff wasn't banned from existing, it was simply banned from being sold.

    As if that's not the same thing?

    I can't see any reasonable explanation for how a society that prides itself on innovation over regurgitation would ever allow such obvious parasitism.

    But it wasn't regurgitation or parasitism. And if you think it is then you think the same of Shakespeare, Mozart and others.

    All creative works build on the works of others.

     

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    Pjerky (profile), Sep 14th, 2009 @ 7:43pm

    What I find annoying about this case...

    What I find annoying about this case is the fact that the author of the Harry Potter, JK Rowling (billionaire no less), on multiple occasions in the past has said that she has referred to the online (original) version of this Harry Potter Lexicon when she forgot details here and there. She has also voiced much appreciation and support for her many fans and their fan fiction work.

    But then this case happened and she did a 180 and started, literally, crying in the court room about how the publication of this Lexicon in book form not only violated her rights, but also interfered with her own idea of releasing such an Encyclopedia to Harry Potter. Of course her version isn't even a sure thing. She simply said it was something she considered and in not so many words said that she didn't want the competition nor the loss of revenue.

    Lets see where do I start on all of that. First of all money should be the last thing on her mind as well off as she is. Secondly the makers of this Lexicon spent years putting together the online version as a dedicated fan of her work. She should be supportive that such a dedicated fan is being reimbursed for all his hard work. Instead she shows that she is two-faced (for turning on her fans), greedy, and and self-important.

    I am a fan of the books, but this trial made me lose a lot of respect for the woman.

     

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    Anonymous Coward, Sep 14th, 2009 @ 7:51pm

    Re:

    What Gen X'er has read Catcher in the Rye? A derivative novel and the controversy surrounding it might encourage a young person to actually go back and read the original work. I work for a textbook wholesale company, and you wouldn't believe the garbage that is on the required college reading lists these days.

     

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    John Bullington, Sep 14th, 2009 @ 7:52pm

    "derivative work"

    "Does anyone honestly think that if J.D. Salinger wrote an actual sequel to Catcher in the Rye people wouldn't buy it because they'd already bought the unauthorized sequel written by some other guy? "

    Realize that when you are talking about derivative works your not just talking about fan fiction. What if the derivative work is written by Dan Brown,or James Patterson or name another best selling author? Then I think a lot of people might start buying derivative works.

     

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    Drew (profile), Sep 14th, 2009 @ 8:17pm

    Re: "derivative work"

    The author of a "derivative work" should not matter either, if Dan Brown wrote a sequel to "Catcher in the Rye" I'm sure it would get purchased and read in greater quantity than an unknown author; however that still does not take away from any possible sequel written by J.D. Salinger. As an example imagine the two sequel books side-by-side on a book seller's shelf, a potential buyer could pick up each book and decide which version, the 'authorized' or 'unauthorized' sequel, to purchase; some would choose one, some the other, and some even both. This is called consumer choice and we do it every time we go grocery shopping and look at that "name brand" cereal and the store's own brand.

     

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    PRMan, Sep 14th, 2009 @ 8:57pm

    Why not Superman and Batman then?

    Heck, I would love to make a ton of money on a Spider-Man story too.

    Unauthorized sequels pollute the marketplace and make it difficult to figure out which story is "authentic". The sheer volumes of Superman crap which would flood the country from Asia or other places would absolutely ruin the marketing of the DC Comics version.

     

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    Anonymous Coward, Sep 14th, 2009 @ 9:22pm

    "As if that's not the same thing?"
    -------------

    It...isn't.

    So long as I'm correct in assuming that non-commercial things can and do exist than no, it isn't the same thing at all, LOL. "We have the internet now" as you love to smugly point out. Anyone in the mood to read a shitty piece of Catcher in the Rye fan fiction can no doubt fire up their favorite bittorrent client and get themselves a copy.

    Does this mindset of yours carry over to the non-profit filesharing VS for-profit piracy debate? Are those two things the same? If not, why not? What's the difference between that scenario and this scenario?

    "But it wasn't regurgitation or parasitism. And if you think it is then you think the same of Shakespeare, Mozart and others."
    --------------------

    I'm surprised you're so willing to bring that up considering the trumping you got in the comments the last time. Rather than waste time reiterating what you'll just ignore again I'll let "BobInBaltimore" remind you how ridiculous it was:

    http://www.techdirt.com/articles/20090621/1753275301.shtml#c207


    "All creative works build on the works of others."
    --------------

    So what? Everything builds on the work of others. That doesn't negate authorship, that doesn't negate individual accomplishment. There is a difference between "inspired by" and "derivative of".

     

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    Anonymous Coward, Sep 14th, 2009 @ 9:29pm

    Re: Why not Superman and Batman then?

    That's what trademark and the like are for. As long as there is a clear indication of the provenance of a work (official DC comics vs. other author), then DC's marketing isn't ruined. In fact it's enhanced because they can claim the title of "official version" (Accept no substitutes!). It would of course mean they would have to compete, since the unauthorized version could be better than their own. And the unauthorized version would have to be good enough to attract buyers or would quickly fade. This seems to be true for public domain stories such as fairy tales. I see non-Disney Snow White DVD's in stores now and then, but they don't look very well made and are usually in the cutout bins. Disney doesn't seem to be threatened so far, and nobody seems confused. On the other hand, someday someone is going to create a version of the Snow White story that is better than the Disney version, and that's only possible because they were permitted to try.

    I say yes to unauthorized Superman and Batman.

     

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    Grimp, Sep 14th, 2009 @ 9:30pm

    The derivative work right has always bothered me, too. When I consider whether it should be banned, however, the one thought that gives me pause is a novelist's ability to sell his rights to the movie version. There's something squicky about Hollywood being able to exploit any book they like and rake in a few million while the author gets nothing.

    Still, "something squicky" isn't really a legal argument. This may be a necessary side effect of a more fair derivative work right (which also allows for Harry Potter lexicons, etc).

     

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    Doug Lichtman, Sep 14th, 2009 @ 9:38pm

    Answer Keys and Competition

    Mike -

    Interesting to read your reactions to the program. A few thoughts in response to your post:

    1. The answer key example is not as puzzling as you make it sound. Imagine that you wrote a college textbook. Wouldn't you want to be able to stop someone from distributing an unauthorized answer key to students? After all, in some settings at least, a textbook loses much of its value when the answer key is widely available. (It is for this reason that many publishers try to keep answer keys such that they are in the hands of the relevant professors only.) Surely you'll agree that control of that derivative work might really matter to the author of the relevant textbook, and your move -- about the unauthorized version being less attractive than the authorized one -- doesn't really speak to the issue at hand. We could then still decide that, even with this point in mind, we are not going to treat answer keys as derivative work; but you seem to reject it too quickly, as if there is nothing to worry about here. That I'd resist.

    2. More generally, it's true that often an authorized sequel will be more popular than an unauthorized one; but why should authors have to compete along this dimension? We could have a system where authors control sequels to their own works, and competitors have to make their own competing stories and then control those. That is, I'm not sure why you prefer a system where everyone can write Star Trek novels over a system where one group writes Star Trek, another has no choice but to compete by writing their own similar work (say, Battlestar Galactica), and a third targets that very same audience but with Star Wars. Put differently, we might love competition, but derivative work rules could be about choosing among types of competition: competition like Trek vs. Galactica, or competition like Trek Version 1 v. Trek Version 2. Copryight law is certainly molding things to favor one or the other, even if we always expect to have both to some degree.

    3. Lastly, one big point back: even if you toss the derivative work right, most of these downstream products are still going to be ruled infringement under the law. For instance, as we talk about in the show, the Potter Lexicon lost not on the derivative work argument, but on the simple argument that the "facts" were actually fictional facts, and so telling the story of Harry Potter, while entirely truthful, was also an impermissible copying of Rowling's expression. So you can't achieve your goal of freeing all this up merely by winning on your interpretation of 106(2) as completely inconsistent with the idea/expression dichotomy. Even if you were right, almost all of these works would lose anyway, just under a different section of the Act. (Then some would be freed up under fair use, which you and I agree might be an attractive result in at least some of these cases, for the reasons you suggest here.)

    Fun and interesting to hear your reaction to the show. I really appreciate that you take the time most months to not only listen but also push back. It's been really helpful to my own thinking, and hopefully a little to yours as well.

    Warm regards,

    Doug Lichtman
    Professor of Law, UCLA
    Host, IPColloquium

     

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    Robert, Sep 14th, 2009 @ 10:22pm

    Some kind of quasi-trademark protection is appropriate for authors, modified to suit. Making narrowly defined a criminal offence might be appropriate - obtaining money under false pretences is the essence of fraud, and falsely claiming a sequel was written by the original author would qualify - which would both protect small authors who can't afford to sue, and take enforcement out of the hands of media companies.

    The same protection would also apply to derivative works in other media. Hollywood could film any book they liked, but if they didn't have authorial approval they would have to say so, with no attempt to imply otherwise.

     

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    Mike Masnick (profile), Sep 14th, 2009 @ 10:27pm

    Re:

    It...isn't.

    Are you honestly suggesting that banning the sale of the product is not the same as banning the product? Really? Do you want to go down this path, because you're about to look incredibly silly. I guess that's why you remain anonymous.

    So long as I'm correct in assuming that non-commercial things can and do exist than no, it isn't the same thing at all, LOL. "We have the internet now" as you love to smugly point out. Anyone in the mood to read a shitty piece of Catcher in the Rye fan fiction can no doubt fire up their favorite bittorrent client and get themselves a copy.

    Not legally, they can't. I find that to be immensely problematic. I am surprised that anyone would not.


    Does this mindset of yours carry over to the non-profit filesharing VS for-profit piracy debate? Are those two things the same? If not, why not? What's the difference between that scenario and this scenario?


    I believe in supporting business models. Telling someone they legally cannot sell a product is a huge problem and a restriction on the right to free speech.

    We do not ban books. Except when we do. Amazing that someone would support the banning of books.

    I'm surprised you're so willing to bring that up considering the trumping you got in the comments the last time. Rather than waste time reiterating what you'll just ignore again I'll let "BobInBaltimore" remind you how ridiculous it was:

    Heh. I like how you ignore Mozart. Oops. Sucks when someone proves you wrong. But, more specifically, BobinBaltimore was responding to a specific case: whether or not Shakespeare would have violated copyright law. But that's NOT what we were discussing here. We were noting that his works were quite derivative.

    But, you knew that. And since you couldn't respond, you pointed to something different.

    As if you thought people were stupid enough to believe you.

    You really ought to try harder. It's so easy to prove you wrong these days.

    So what? Everything builds on the work of others.

    Wait, just a little while ago you were calling that parasitism. Oops.

    That doesn't negate authorship,

    Nor did anyone say it did. What are you getting at?

    that doesn't negate individual accomplishment

    Nor did anyone say it did. What are you getting at?

    There is a difference between "inspired by" and "derivative of".

    Sure. But both Shakespeare and Mozart were quite fond of producing derivative works. Extremely derivative. As in near copies at times. But, why let reality mess with your delusions?

     

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    Enigmatic, Sep 14th, 2009 @ 10:28pm

    On the coattails of others

    Isn't the real issue here the obtaining of profit as a result of "using" the work from which it derives without permission?

    Something which was highly successful being followed by a derivative work which uses that original material as a means of boosting its sales, is in fact using the merits of the original upon which to gain profit... something which is the exclusive rights of the original copyright owner.

    So I fully understand the sequal to Catcher in the Rye being banned from sale, the very fact it uses the title or claims to be related in any way to the original means it is not standing on its own merits, but cashing in on the merits of the original.

    This has always been the problem with derivative works. They are nothing without the originals and the use of specific terms, concepts or characters which were created in the original works, would not make sense to anyone who is not familiar with it in the first place. Under these conditions the derivative work actually ENHANCES the original work by requiring anyone who wishes to use it to purchase the originals in order to become familiar.

    To me that is the primary difference. Is the original required? If it is (ie the answers make no sense without the questions) then I can't see why it would be disallowed as non-profit and would require copyright permission for profit publication, and if it is not then it would be a simple request to have the association to the original work removed because it is a breach of copyright to use something you don't own.

     

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    Mike Masnick (profile), Sep 14th, 2009 @ 10:28pm

    Re: Why not Superman and Batman then?

    Unauthorized sequels pollute the marketplace and make it difficult to figure out which story is "authentic". The sheer volumes of Superman crap which would flood the country from Asia or other places would absolutely ruin the marketing of the DC Comics version.

    As someone else pointed out, trademark could easily handle that issue.

     

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    Mike Masnick (profile), Sep 14th, 2009 @ 10:36pm

    Re: Answer Keys and Competition

    1. The answer key example is not as puzzling as you make it sound. Imagine that you wrote a college textbook. Wouldn't you want to be able to stop someone from distributing an unauthorized answer key to students?

    Honestly? No. I wouldn't. Why should I?

    After all, in some settings at least, a textbook loses much of its value when the answer key is widely available. (It is for this reason that many publishers try to keep answer keys such that they are in the hands of the relevant professors only.) Surely you'll agree that control of that derivative work might really matter to the author of the relevant textbook, and your move -- about the unauthorized version being less attractive than the authorized one -- doesn't really speak to the issue at hand. We could then still decide that, even with this point in mind, we are not going to treat answer keys as derivative work; but you seem to reject it too quickly, as if there is nothing to worry about here. That I'd resist.

    I see. So the argument is controlling the answer key to keep it out of the hands of students? I would suggest that that is more a matter of academic integrity, not copyright. That's an abuse of copyright beyond its intended purpose.

    2. More generally, it's true that often an authorized sequel will be more popular than an unauthorized one; but why should authors have to compete along this dimension?

    To me, that's the definition of a free market. If an author needs to compete along that dimension, it also pushes them to work harder and be better.

    We could have a system where authors control sequels to their own works, and competitors have to make their own competing stories and then control those. That is, I'm not sure why you prefer a system where everyone can write Star Trek novels over a system where one group writes Star Trek, another has no choice but to compete by writing their own similar work (say, Battlestar Galactica), and a third targets that very same audience but with Star Wars. Put differently, we might love competition, but derivative work rules could be about choosing among types of competition: competition like Trek vs. Galactica, or competition like Trek Version 1 v. Trek Version 2. Copryight law is certainly molding things to favor one or the other, even if we always expect to have both to some degree.

    I don't see that as a problem. I'm not sure why you do. This is not a zero sum game. Obviously, the larger market is in being able to create your own "universe" in which to compete, so why not do that? That derivative versions of "Star Wars" do not preclude someone from creating Battlestar Galactica, and I would argue that copyright law does not encourage Battlestar Galactica any more than basic creativity does.

    3. Lastly, one big point back: even if you toss the derivative work right, most of these downstream products are still going to be ruled infringement under the law. For instance, as we talk about in the show, the Potter Lexicon lost not on the derivative work argument, but on the simple argument that the "facts" were actually fictional facts, and so telling the story of Harry Potter, while entirely truthful, was also an impermissible copying of Rowling's expression.

    Yes, but I have a problem with that as well -- but that's a different topic for a different day.

    So you can't achieve your goal of freeing all this up merely by winning on your interpretation of 106(2) as completely inconsistent with the idea/expression dichotomy. Even if you were right, almost all of these works would lose anyway, just under a different section of the Act. (Then some would be freed up under fair use, which you and I agree might be an attractive result in at least some of these cases, for the reasons you suggest here.)

    Indeed. And I'd be willing to argue the fair use claims on many of those as well. I'm just questioning why the need for a derivative works clause at all -- seeing as that's what the podcast was about.

    Fun and interesting to hear your reaction to the show. I really appreciate that you take the time most months to not only listen but also push back. It's been really helpful to my own thinking, and hopefully a little to yours as well.

    Yes, I enjoy listening as well. Though, you pushing Williams on why he should stop more fan use had me muttering aloud in my car at the stereo as to why you were wrong. :)

     

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    Mike Masnick (profile), Sep 14th, 2009 @ 10:41pm

    Re: On the coattails of others

    Something which was highly successful being followed by a derivative work which uses that original material as a means of boosting its sales, is in fact using the merits of the original upon which to gain profit... something which is the exclusive rights of the original copyright owner.

    Why? How does that make sense from a policy perspective? No one should have control over idea? Why should only one person be allowed to profit from it? That makes no sense to me.

    So I fully understand the sequal to Catcher in the Rye being banned from sale, the very fact it uses the title or claims to be related in any way to the original means it is not standing on its own merits, but cashing in on the merits of the original.

    So? If it's not taking anything away from the original, what's the problem? You act as if it's a zero sum game, and any profits made by this unauthorized sequel (which the critics seem to agree is awful) come out of Salinger's pockets. But that's not the case at all.

    This has always been the problem with derivative works. They are nothing without the originals and the use of specific terms, concepts or characters which were created in the original works, would not make sense to anyone who is not familiar with it in the first place.

    Really? What if the work stands alone. Plenty of sequels do not require you to be familiar with the original.

    To me that is the primary difference. Is the original required? If it is (ie the answers make no sense without the questions) then I can't see why it would be disallowed as non-profit and would require copyright permission for profit publication, and if it is not then it would be a simple request to have the association to the original work removed because it is a breach of copyright to use something you don't own.

    This is incorrect. It is not a breach of copyright to use something you don't own. It might be a breach of copyright to copy something for which you do not hold the right. That's a very different sentence and the differences are important.

     

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    Brooks (profile), Sep 14th, 2009 @ 11:10pm

    IP blurs

    You're not going to like this. I'm not sure I like it. But I think what we're seeing is the blurring of the concepts of trademark and copyright.

    The argument, I think, is that it's impossible to promote a derivative work without invoking the original work, and that such invocation is a misuse of the original brand. It's a complex mix of the confused "parasitism" argument we've seen in these comments, a probably misplaced belief in the ownership of concepts, plain old trademark.

    I don't particularly agree with that argument, either viscerally or from a legal perspective. But I do think it's what we're seeing.

     

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    Raybone (profile), Sep 14th, 2009 @ 11:16pm

    Star Wars

    Perhaps some enterprising maverick film-maker will make better star wars sequels to erase the travesty Lucas has foisted upon us. I would love a Timothy Zhan trilogy

    to Doug

    "but on the simple argument that the "facts" were actually fictional facts"


    man that's opaque logic as I could convincingly argue the opposite...
    e.g. It is a real FACT that the book Harry Potter described this, etc, etc.

     

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    Jeanne, Sep 15th, 2009 @ 2:00am

    Re: Anonymous Coward's Post

    The words "regurgitation" and "parasitism" were used by JK Rowling and Warner Bros. in the court filings of the Harry Potter Lexicon case. But that type of rhetoric really didn't work for them in the long run because the book is in print now, along with many other HP books that have come out in the past year. Literary Criticism and analysis is not the same thing as plagiarism, and the Judge wrote in his decision that authors do not have control over future works written about their original works. The voice of reason.

     

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    Richard, Sep 15th, 2009 @ 2:29am

    Re: IP blurs

    Yes - I think you've got a good point there there has been a trend towards blurring these concepts in order to create "rights" which don't exist in either original law.

    However trademark law should only be applicable where the public might be confused about the authorship. So an adequate supply of "unauthorised", "unofficial" and other similar disclaimers ought to excuse just about anything.

    Similarly copyright law should deal only with actual copying. It would still prevent unauthorised film versions of books because they need to include a fairly substantial amount of dialogue from the book if they are to be anywhere near authentic.

     

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    peter (profile), Sep 15th, 2009 @ 4:41am

    what is a derivative work?

    The author's exclusive rights over "derivative works" never makes sense to me for this reason: any coherent definition of a derivative work includes any work that appropriates all or part of the original work. If the author has exclusive rights over all such works, then there can be no non-infringing work that appropriates all or part of the infringing work.

    But there plainly are non-infringing works that appropriate all or part of the original work. There's collage incoroporating copyrighted photos (Blanch v. Koons). There's the use of thumbnails of copyrighted photos in an online image index (Perfect 10). There's 2 Live Crew's appropriation of Roy Orbison's "Oh, Pretty Woman." etc. etc. etc.

    There is fair use. And a derivative use that's a fair use is non-infringing. So what the heck is this "exclusive right" over derivative works? As far as I can tell, it's meaningless. The operative legal question is whether a use is fair use, not whether the use is a derivative one.

     

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  27.  
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    Mockingbird (profile), Sep 15th, 2009 @ 6:20am

    The original U.S. copyright statute of 1790 had no derivative work right. Abridgements and translations were free, as were all other derivations. Derivation-rights began to be added in the later 19th century. Perhaps at next April's Berkeley Symposium on the 300th anniversary of the Statute of Anne we'll get some discussion of the pros and cons of a derivation right.

    Someone wrote: "The Catcher in the Rye knockoff wasn't banned from existing, it was simply banned from being sold."

    Actually, the right in the present statute is the right "to prepare derivative works based upon the copyrighted work". Not "to prepare derivative works for publication or sale." Simply "to prepare". No qualifications. No exceptions. Simply creating an unauthorized derivation, even in private, is prima facie a violation of the derivation right.

     

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  28.  
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    Killer_Tofu (profile), Sep 15th, 2009 @ 7:31am

    Re: On the coattails of others

    I just had to say Enigmatic that your post reeks of self-entitlement and greed. It is kind of disgusting.

    Using your logic, you can longer perform basic math, because somebody else taught you those ideas. Let me know how that works out for you.
    Somewhere, very very early in time, that math was thought up by somebody. It was a theory at some point. So, by your own logic you cannot use it because it is not yours.

     

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  29.  
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    iNtrigued (profile), Sep 15th, 2009 @ 8:20am

    Re: What I find annoying about this case...

    *with one hand on the back of his head & the other holding his right foot behind him & dancing, others cheer...* "...Go Pjerky!.. Go Pjerky!.. Go Pjerky!.. Go Pjerky!.."

    Well played my good sir

     

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  30.  
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    Matthew Cruse (profile), Sep 15th, 2009 @ 10:09am

    So, after reading this post and the earlier post about Fan Sub sights, I have to think, Maybe these people are just opposed to making Money? As was pointed out in some of the comments about the Fan Sub post, some companies use these fan provided translations to meet a need in the market that they don't fulfill or are not capable of yet. For Authors / Writers this is a common problem in that they commonly only produce new works at the rate of 1 to 2 per year, but for the fans this is not fast enough. So what do the fans do...Fan Fiction, i.e fan created works derivative of the originals that fill this gap. Are these works claimed to be by the original authors, no. In the case of complex worlds or story lines do the claim to be "canon" (part of the official over arching storyline) no. What do smart authors / publishers do, collect the best of these works and PUBLISH them. This has so many benefits, I don't know if I can capture all of them:
    1. Maintains a high level of interest in the subject
    2. Keeps new material out there
    3. Connects with fans in a MAJOR way
    4. Generates new revenue streams for everybody
    5. Additional FREE promotion
    6. Builds heaps of good will for the publisher and author
    7. Finds promotes, and develops new talent that may not have tried to write under other circumstances.

    For an idea of how this is done succesfully, see Baen Books, Eric Flint Ring of fire series Grantville Gazzette
    http://www.baen.com/series_list.asp

     

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  31.  
    identicon
    Anonymous Coward, Sep 15th, 2009 @ 1:23pm

    Value derived from copying the characters

    Does anyone honestly think that if J.D. Salinger wrote an actual sequel to Catcher in the Rye people wouldn't buy it because they'd already bought the unauthorized sequel written by some other guy?

    This is the wrong inquiry because it limits the market to the expression of the book itself. Creativity vests at multiple levels including characters. The correct question is whether the sequel would have been successful without using any of the characters from the original. If a sequel merely reuses the original characters, clearly derivative. If a sequel reinvents the characters with immense, creative backstory, this sounds pretty transformative so fair use should kick in.

     

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  32.  
    identicon
    Enigmatic, Sep 15th, 2009 @ 9:12pm

    Re: Re: On the coattails of others

    Why? How does that make sense from a policy perspective? No one should have control over idea? Why should only one person be allowed to profit from it? That makes no sense to me.

    I am not talking about having control over an idea, but having control over a recognizable entity. If they are using the specific title and uniquely identifiable components of the original work then they are the ones who have put the time and effort into creating it, publishing it, producing it, etc, etc and others should not be allowed to just "rip it off".

    Put yourself in the position of such an original creator. You invest years and thousands of dollars to come up with a series of books. Someone comes along, quotes it as a sequal to your books and it sells millions of copies not because its a good book, but because its using YOUR original work to GIVE it the value. Wouldn't you be upset at that?

    So? If it's not taking anything away from the original, what's the problem? You act as if it's a zero sum game, and any profits made by this unauthorized sequel (which the critics seem to agree is awful) come out of Salinger's pockets. But that's not the case at all.

    Why is taking something away from the original the only indicator you are using? The issue is not simply whether the original author suffers or loses out, but whether their "property" is affected. The use of an original work as a means of promoting derrivative work means they are profiting from the work of others.

    How is this any different to computer software or art work or music clips? If I create a new song which uses someone elses song as the background then I haven't done the work and shouldn't be allowed to use it. Just like Microsoft who clearly infringed on the patent of i4i, they were in the wrong for doing it but i4i don't have any product that could possibly compete with Word and so the injunction to have sales stopped was lifted. If someone writes a sequal to a book, regardless of whether its official or not, the very fact they are "claiming" it to be the sequal means the original author is now impaired from doing it himself. Now imagine that 20 people all put out their "sequal". Surely even you can admit that an authentic sequal would suffer as a result of having this mass of sequals? The volume itself would cause it to become lost. Sure some people would be smart enough to look for the authentic copy but why should the author have to FIGHT to be seen when its their OWN material they are writing about?

    Really? What if the work stands alone. Plenty of sequels do not require you to be familiar with the original.

    I dispute the validity of them standing alone. You may be able to read/watch it without having seen the original, but the "content" includes a lot of pre-existing groundwork which was done in the original. If something called "The Empire Strikes Back" came out, do you honestly think as many people would have seen it or even known about it unless it was titled "Star Wars: The Empire Strikes Back" and leveraged off the success of the original?

    I think you are being very narrow in your view of what is considered to stand alone. You could watch any movie and claim it stands alone, but when the original created the feeling/atmosphere of something and the derrivative "repeats" that then they are in fact NOT standing alone because any feeling or atmosphere generated from the derrivative MUST be the result of the original. To say it has absolutely no bearing would be a bit blinded (or to simply push a point rather than find an answer).

    This is incorrect. It is not a breach of copyright to use something you don't own. It might be a breach of copyright to copy something for which you do not hold the right. That's a very different sentence and the differences are important.

    Perhaps we are getting confused between copyright and trademark here. You cannot trademark an idea, but you can trademark a unique entity, logo or trademark. If you start using character names like Gandalf, Froddo and Golum in a story and they are a wizards and hobbits then you have indeed breeched trademark and are indeed illegally benefiting from the creation of others. It is BECAUSE its a hobbit named Froddo that people will read it, if not then call them a halfling named Fribbit and see how much money you make from it.

    But that is essentially the point. If you believe something can stand alone, then MAKE it stand alone without using any references that are recognizable to previous original work. If you can't do that, if your work simply wont be as good without using those references, then clearly you have an intention to benefit from the work done by others and you shouldn't be allowed to profit from it.

    I think it is easy for you to argue against this when you have nothing invested in it... I am almost certain that if you had time, effort and money tied up in some orginal work that you would be on a completely different side

     

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  33.  
    identicon
    Enigmatic, Sep 15th, 2009 @ 9:23pm

    Re: Re: On the coattails of others

    Killer Tofu,

    I suppose if you take what I said out of context and apply it in the wrong way to something it would be as bad as you said... Thankfully that isn't what I meant ;-)

    You cannot copyright or trademark an idea, nor can you do so for something which is considered "generic", otherwise I would be out there in a second putting a copyright on "Boy meets girl, boy loses girl, boy gets girl back" and corner the market on 90% of every book and movie in existence.

    What I am talking about is the use of trademarks or uniquely identifiable entities where the derivative work utilizes those entities for the purpose of enhancing the quality of their own work as a result. Note that I am also talking about works which are intended for profit as well.

    So in essence, the person who put the time and effort into creating a recognizable entity, should be the only one who is allowed to profit from their creation.

    So basic math has nothing to do with it. Math requires no creativity and is not subjective. It is considered "generic" and is completely irrelevant to everything I have talked about.

    To illustrate this point. Lets look at the answer key to a book published on maths. If I were to show you the answer key and ask you to identify it you would be at a total loss. Its a bunch of numbers. It has no meaning...

    If however I were to show you something which had a wizard named Gandalf and a hobbit named Froddo in it you would INSTANTLY say "Ah, thats Lord of the Rings".

    Why should anyone but those who created LoTR be able to profit from their work?

     

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  34.  
    identicon
    Anonymous Coward, Sep 15th, 2009 @ 10:40pm

    Re: Re:

    It is not at all clear to me why if you believe a person is wrong you resort to mocking the comments by that person and using discussion-inducing words like "delusions".

    If you disagree, then feel free to do so. But deliberately putting someone down seems downright petty.

     

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  35.  
    identicon
    Anonymous Coward, Sep 16th, 2009 @ 2:01pm

    "Are you honestly suggesting that banning the sale of the product is not the same as banning the product?"
    -------------------

    Yes, that is what I'm saying because as was already explained, we have the internet now, it is no longer possible to ban books. The only thing they can be banned from, is being sold.

    "Not legally, they can't. I find that to be immensely problematic."
    -------------

    Really? I find it to be immensely irrelevant for the exact same reasons you've cited a thousand times before. The war on piracy is not winnable. Knockoff Catcher in the Rye will exist in perpetuity whether anyone with good taste wants it or not.

    "I believe in supporting business models."
    -------------

    So you're going to completely dodge the question? Why should a distinction be made between commercial and non-commercial filesharing if there SHOULDN'T be a distinction made between commercial and non-commercial unauthorized fan fiction? What is the difference?

    "Telling someone they legally cannot sell a product is a huge problem and a restriction on the right to free speech."
    ---------------


    LOL

    Free speech like Copyright HAS restrictions. It always has. It always will. Neither are absolute. Deal with it.

    "We do not ban books. Except when we do. Amazing that someone would support the banning of books."
    ---------------

    Jesus Christ, you're like the Bill O'Riley of the anti-copyright crowd. Use more buzzwords. Try. What I support is the illegality of commercialized, unauthorized fan-fiction. I think non-commercial, unauthorized fan fiction is fine and should be classified under fair use. "Banning" fan fiction on the internet is irrelevant as it's not really enforceable. Every single book that has ever been banned in the history of literature is now available to anyone with a computer and an internet connection.


    "Heh. I like how you ignore Mozart. Oops. Sucks when someone proves you wrong. But, more specifically, BobinBaltimore was responding to a specific case: whether or not Shakespeare would have violated copyright law. But that's NOT what we were discussing here. We were noting that his works were quite derivative."
    ---------------

    Unlike Shakespeare I don't know enough about Mozart or his influences to comment. It's still rather nebulous to compare his time to ours for a myriad of sociological and economic reasons that were brought up by many of the commentators in your original post on King Henry.

    "It's so easy to prove you wrong these days."
    -------------

    What exactly have you proved wrong? I don't see a single thing you've managed to prove.

    "Wait, just a little while ago you were calling that parasitism. Oops."
    ------------

    Nice try. They are two totally different things. And since you agree that everything builds on the work of others why should there be ANY property? What is it about music or movies that single them out from everything else? Because they are immaterial? What does that have to do with the fact that "everything builds on the work of others"? If you are using the "great works of art don't exist in a vacuum" ploy to call for the repeal of copyright why can't I use the same ploy to call for the repeal of ALL property laws since nothing physical was created in a vacuum either?


    "Sure. But both Shakespeare and Mozart were quite fond of producing derivative works. Extremely derivative. As in near copies at times. But, why let reality mess with your delusions?"
    --------------

    You haven't proved that with Shakespeare. If you want to keep peddling that bullshit, you'll have to support it with something other than conjecture. And even if you did, the culture and economies of their times are so far removed from our own that your attempt to streeeeeeeeeetch a four hundred year old comparison between them reeks of nothing but desperation. I wonder why you didn't just use Danger Mouse and Girl Talk as examples instead?

    "Why? How does that make sense from a policy perspective? No one should have control over idea? Why should only one person be allowed to profit from it? That makes no sense to me."
    --------------

    It's not an "idea" as you've been reminded of many times over but an expression of an idea. Your insistence on calling complex expressions "ideas" is as insulting as it is stupid.

    Why should only one person be allowed to profit from their own creation? Well, why should others be allowed to swoop in like so many vultures and feed off that person's work and innovation? THAT doesn't make any sense to me.

    Masnick, the patron saint of Chinese Rolexes...

     

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  36.  
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    GJ (profile), Sep 17th, 2009 @ 12:19am

    Re: Answer Keys and Competition

    I have taught several courses at a local college, with a book to which I had the answer key. Some enterprising folks found the same answer key either online, or found a way to buy it. I knew they had it because they handed in the same punctuation and even the same syntax errors. They got full marks for the solutions that worked. Why did I not throw the "plagiarism" book at them? Because there was no point to do this: that only means more paperwork for me. They still subsequently failed the exams because they had no clue how to solve the problems I gave them.

    It's a non-problem and any issues solve themselves over the course of a single semester.

    As an aside: when I was in University and studied Mathematics, all the books contained the answers in the back. The answers were there to help us as students to make sure that our methods for determining the answers were leading to the expected answer.

    It was NEVER about the answer, it was all about LEARNING and THINKING.

    Perhaps when you study Law, this is different?

    --GJ--

     

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  37.  
    identicon
    Enigmatic, Sep 17th, 2009 @ 6:48pm

    Re: Re: Answer Keys and Competition

    Thats all well and good, but surely you could have gone one step further, still given them full marks but made it known to them they plagiarised.

    You don't have the paperwork, they are still caught out...

    What you did actually set them up for failure, when you could have turned it around and given them an opportunity to do the learning...

    After all.. isn't that what your job is? To teach people? Sitting back and watching them fail, especially with the perspective is that it will solve itself. In reality there was only ever going to be one resolution because you didn't "teach" them that the path they chose wouldn't get them anywhere... instead you "rewarded" them for plagiarising simply to reduce your own paperwork.

    Sheesh dude! Not cool!

     

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  38.  
    identicon
    Nicole, Sep 20th, 2009 @ 6:57pm

    Re:

    I agree with your statements 100%.

    "why should there be ANY property? What is it about music or movies that single them out from everything else? Because they are immaterial? What does that have to do with the fact that "everything builds on the work of others"? If you are using the "great works of art don't exist in a vacuum" ploy to call for the repeal of copyright why can't I use the same ploy to call for the repeal of ALL property laws since nothing physical was created in a vacuum either?"

    Exactly. Why even have property if laws were set in place to defend every average Joe who wanted to mildly tweak the hard work of others and make a profit?

    'Everything builds on the work of others' means inspiration to me, not derivative work. I can be inspired by a play or piece of artwork, but hopefully I will take that inspiration and form something different (either completely different or a parody). Taking someone else's ideas and merely tweaking them to my liking (then riding on the coat tails of the original work's success) takes much less effort than coming up with my own work. In American society, I would hope that this would be viewed as something that encourages stagnancy/laziness and therefore would not be something to condone. Bottom line: Don't use someone else's ideas to make money. If you want to create a derivative work, you shouldn't be doing it for money in the first place.

     

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  39.  
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    GJ (profile), Sep 26th, 2009 @ 10:46pm

    Re: Re: Re: Answer Keys and Competition

    What you did actually set them up for failure, when you could have turned it around and given them an opportunity to do the learning...

    I would argue that they set themselves up for failure, and that I have provided them with a wonderful opportunity to learn; only take shortcuts that get you to the finishline faster.

    Ok, so that's a fairly flippant answer on my side, and your concern warrants some more information on how I teach, as I believe my whole approach is a bit more nuanced than how I'd originally written my comment on this site.

    Students are provided with all the ethical rules they have to adhere to the moment they attend college. I tell them up front that the exercises, which make up a negligible amount of their final mark, will help them prepare for the midterms and the exams. We're not talking about a kindergarten class, we're talking about young adults. I am not there to police their studies, I'm there to offer knowledge and opportunity for practice and a test at the end to see if they understood it.

    Now, I don't just sit back and watch people fail. Those who struggle with the assignments get lots of time from me while I go over the material with them to get to a point where they "get it" (or sometimes to the point where they say they get it). I answer questions from anyone who has a question, during class and after hours.

    Someone who thinks they can pull the wool over my eyes is welcome to do so; at every exam I tell them that there is no punishment for cheating, there is a punishment for being caught cheating. I deal with computers: I like to be precise.

    If I make an accusation of plagiarism against a student, there's a lot of hassle. If I even hint at it, they can start a procedure that involves hearings and other crap about "bias" that just sucks up my time with no benefit to me or to any other students. I'm not a lawyer, I don't play one on TV, and I'm there to teach them the course material, not fight legal battles.

    They get good advice on how they should study, and I treat them like adults. They get the opportunity to use my time, and if they don't want to, they don't have to.

    College is a different environment from high school, and the repercussions of their actions are different. If they decide to cut corners, they will find out how well that works. For some it does, for some it does not.

    Those are all valuable lessons.

     

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  40.  
    identicon
    Web Writer, Dec 17th, 2009 @ 9:15pm

    How about we use a much smaller in scope example?

    I think tomorrow I'm going to register a domain name like thelatestontechdirt.com, create a blog, take all of your ideas and content, rewrite them and post them on my new blog and make money from advertisements.

    I'm not selling the derivative work I've created and in no way am I damaging your brand as I am only promoting your work. After all, why shouldn't someone else be able to build upon what you have done here?

     

    reply to this | link to this | view in thread ]


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