Some Fiction About Fan Fiction
from the learn-to-let-go dept
Reader Andrew sends in a blog post by George R.R. Martin, author of the fantasy series Song of Ice and Fire among other things, about his intense dislike for fan fiction. The post is long and rambles on repeating points somewhat randomly, but there are a few key points that he makes, that don’t seem to have much support. First, he claims that he has to defend his copyright:
Furthermore, we HAVE to do it…. a copyright MUST BE DEFENDED. If someone infringes on your copyright, and you are aware of the infringement, and you do not defend your copyright, the law assumes that you have abandoned it. Once you have done that, anyone can do whatever the hell they want with your stuff.
This is just wrong. I don’t know where he got his information from, but he’s confused. That’s true of trademark law, but not copyright law. For someone who insists elsewhere in the post that he knows copyright law, he got this one flat out wrong.
In that same paragraph, he talks about fair use as well:
There was a lot of talk about copyright, and whether or not fan fiction was illegal, whether it was fair use (it is NOT fair use, by the way, not as I understand the term, and I have a certain familiarity with what is and isn’t fair use thanks to my own experiences with THE ARMAGEDDON RAG)
On this one, he’s also wrong, but it’s a little more blurry. Fan fiction can be fair use and it might not be fair use, depending on the fan fiction. He’s wrong to make a blanket statement that fan fiction is absolutely not fair use. That’s wrong, and courts have found that to be wrong… in some cases, but it very much depends on the work. That’s why you have the case of The Wind Done Gone, which is an (unauthorized) rewrite of Gone With the Wind from another character’s perspective. In that case, the 11th Circuit found it to be fair use. But, then again, we have the more recent case of Coming Through The Rye, an unauthorized sequel to Cather in the Rye — which is still being argued in the courts, but so far, the courts have not bought the fair use claim (which, by the way, has horrified some copyright/fair use experts).
On a purely technical level, it’s hard to see how copyright law outlaws fan fiction. The courts had been clear for ages, that copyright law only covers the explicit expression, and not the idea. In fact, courts have insisted that one of the reasons why copyright law does not violate the First Amendment is because of that separation between idea and expression. As such, it’s difficult to see how any court could find fan fiction a violation of copyright, seeing as it’s a totally separate expression, even if based on the same idea. It is true that some courts (a la the Salinger case above) have ruled otherwise, but this is hardly settled law, and Martin’s claim to the contrary is wrong.
From there, he picks up on the usual point that if you allow fan fiction, then others might do stuff with your characters you don’t like. To that, I think the only proper response is: that’s life. You might not like it, but copyright is not a moral right — at least not in the US. It is not intended to allow the author to control his or her characters forever. In fact, quite the opposite. Copyright has one stated purpose: to promote the progress of science and the useful arts. I recognize that it may be upsetting for others to do stuff with your works, especially if you don’t like what they do, but there’s no law against it (for the most part).
However, he then builds on that idea with a rather laughable defense of why it’s bad to let others do what they want with your characters, by comparing Edgar Rice Burroughs with HP Lovecraft (though, oddly, he refuses to use either’s name). He notes that Burroughs and his estate carefully protected Tarzan, while HP Lovecraft encouraged others to make use of Cthulu. Burroughs died rich, Lovecraft died poor. Thus, to Martin, we have proof that you should protect your works. I’m not kidding. Apparently, Martin is unfamiliar with the fact that correlation is not the same as causation, or that two anecdotes is not a representative sample.
I could just as easily pick out two different authors — say J.K. Rowling, who (for the most part) allows fan fiction, and… uh… just about any author in the world who does not, and point out that Rowling is a hell of a lot richer. Based on Martin’s reasoning, now there’s proof that allowing fan fiction makes sense.
There was one other story in the post that Andrew pointed out, which makes an interesting case against allowing fan fiction:
Most of us laboring in the genres of science fiction and fantasy… had a lesson in the dangers of permitting fan fiction a couple of decades back, courtesy of Marion Zimmer Bradley. MZB had been an author who not only allowed fan fiction based on her Darkover series, but actively encouraged it… even read and critiqued the stories of her fans. All was happiness and joy, until one day she encountered in one such fan story an idea similar to one she was using in her current Darkover novel-in-progress. MZB wrote to the fan, explained the situation, even offered a token payment and an acknowledgement in the book. The fan replied that she wanted full co-authorship of said book, and half the money, or she would sue. MZB scrapped the novel instead, rather than risk a lawsuit.
That scenario does suck, but again, there’s more to look at than what Martin presents. First of all, if Bradley had evidence that she came up with the idea separately, the lawsuit would not have gone very far. Furthermore, as he notes, it was just the idea that was similar — and copyright has that idea/expression dichotomy. It is true that a lawsuit may have been filed and it can be expensive to fight a lawsuit, but just because there is one crazy person out there, doesn’t condemn the entire concept of fan fiction.
I can certainly understand the emotional dislike for fan fiction (though, many who have embraced it have found that it also helps build a much stronger connection with fans). Both JK Rowling and Stephenie Meyer (who wrote the Twilight series) have (mostly… with some exceptions) embraced fan fiction, and it’s helped build that intense fan loyalty. That’s not to say it’s the only way to do so, of course.
Martin doesn’t quite get to the extreme argument we’ve heard before, but he sort of hints at it, with his claim that his characters are his children and only he gets to control them. But one of the standard arguments we’ve heard against fan fiction is “but what if a fan puts those characters into a pornographic story?” or “what if they make the characters into Nazis?” or something along those lines. And the answer is: so what? People have imaginations, and if they don’t write it down it’ll be in their heads anyway. What difference does it make? None of that takes away from the authentic characters that you create yourself. Just because someone else does something else with the characters, it doesn’t change or impact the stories you wrote.
Filed Under: copyright, fan fiction, george r.r. martin
Comments on “Some Fiction About Fan Fiction”
Oh yes!
Sorry, GRR Martin, you are indeed my bitch. At least according to my in-progress slashfic. Look for it soon!
(Reference.)
Re: Oh yes!
Wonderfully put!
I have never written fanfic, but I am strongly inclined to begin with “A Song of Fire, Ice, And Space Mutants”. GRRM’s “get a life, losers; I owe you nothing” attitude is a two way street.
Time to fire up Word and let the magic unfold.
if martin could manage to release a book more often than once a freaking decade, perhaps there would be less bloody fan fic.
Re: Re:
Agreed.
Re: Re:
Doesn’t it also show the /strength/ of fan feeling if people pay this kind of tribute?
Just a thought; assuming even the most arrogant person that assumes they “understand” copyright law, certainly they always contact their lawyer, or the other way round if a lawyer is on retainer, and ask about the possibilities of infringement. Now, if a lawsuit is filed, that is good for the lawyer, right?
I would have to argue that, although copyright law is completely messed up and thanks to the concept of making more money, maybe of these lawsuits are just for profit. Profit for lawyers. I know this argument is flawed, but so are theirs, most of the time…
The real news here…
Someone is still using LiveJournal.
Are we ever going to see Techdirt fan fiction?
I’ll start:
“It was a dark and stormy night. The weather forecasters’ coven was busy in their guild’s basement devising defences of their business model, for they had predicted fine weather.”
Are we ever going to see Techdirt slash fiction?
I’ll start:
“It was a dark and horny night.”
/me shudders
Re: Are we ever going to see Techdirt slash fiction?
/me faps
It is true that a lawsuit may have been filed and it can be expensive to fight a lawsuit, but […]
This story is well known among professional authors, and tends to be a bright, flashing rule for many of them, stating “do not read fan fic, love it or hate it.”
Your average midlist author is going to be scared to death of a lawsuit threat – they simply can’t afford it. They’re self-employed, they money isn’t great, and writing is very much a real job, and many do not have substantial savings. The idea of being forced to choose between an expensive fight with no upside for you and trashing a huge amount of work is intensely frightening.
This isn’t disagreeing with you, but I think the reason why authors would choose to not fight when they’re clearly in the right needs a bit more emphasis. Come to think of it, the power balance, if not much else about it, looks a bit like a unlikely but preventable patent troll attack.
Re: Re:
And this same perverted thing happens with patents. Rather than exploring and sharing ideas, innovators shun them so that in the course of their independent creation, no one can claim that they “knew” of a patent and chose to willfully infringe.
Most patents now are so broad that any reasonable person couldn’t possibly understand their scope anyway to determine whether or not they might infringe. The result is to err on the side of infringement, which has a chilling effect.
Re: Re:
except they are not in the right.
Re: Re:
Sounds like yet another rationale for including frivolous copyright claims within an anti-SLAPP law.
“This is just wrong. I don’t know where he got his information from, but he’s confused. That’s true of trademark law, but not copyright law. For someone who insists elsewhere in the post that he knows copyright law, he got this one flat out wrong.”
No he didn’t. If you don’t pursue legal action within three years you lose the right to pursue legal action for that individual infringement. Furthermore, good luck getting a judge to rule in your favor if you have set a precedent of non-enforcement.
He’ not 100% correct. But he’s not even close to “flat out wrong”.
“First of all, if Bradley had evidence that she came up with the idea separately, the lawsuit would not have gone very far”
But it would have still been very costly and bad PR. But you already know this.
Mr. Martin may not be a copyright lawyer. And maybe he should not make declarations of facts when his opinions are not 100%. But who are you to criticize him? You do this exact thing all the time, and you’re often more incorrect than he is.
Re: Re:
“No he didn’t. If you don’t pursue legal action within three years you lose the right to pursue legal action for that individual infringement. Furthermore, good luck getting a judge to rule in your favor if you have set a precedent of non-enforcement.”
Except…that’s not at all what he claimed.
Re: Re:
The way this is phrased, Martin is saying, “if you don’t sue, it’s automatically in the public domain.”
This is 100% false.
Copyright infringement has a statute of limitations, like any other law. If you don’t sue within three years of discovery, you can’t sue for that particular infringement. You can still sue other people for infringing on that same material, or that same person for infringing on different material.
Also, r.e. Bradley: Does Martin not realize that the Bradley fan is doing exactly the same thing that he is? Is he going to tell the Bradley fan, “well, you’d better sue Bradley for infringement, ’cause otherwise everyone can do whatever they like with your writing”?
Re: Re: Re:
I’d have thought that Bradley ‘fan’ (not much of a fan wanting to rip off their inspiration like that) wouldn’t have had much of a case for gaining a 50% share in everything just for having the same idea. Besides, if they both published similar works, I know whose *I* would buy – and it’s not some selfish hack…
Re: Re:
I am an IP lawyer, and you are incorrect.
The three year statute of limitations is in no way similar to the trademark lapse; you lose all rights in your trademark for failure to police. If you do not sue someone within three years of a copyright infringing act, however, you simply lose your right to make that specific claim against that specific person, but you still retain 100% of your copyright interests. Additionally, pinning down a date of infringing act for online publication is extremely hard, and there is a strong argument that each time a copy of the text is sent down the wire via HTTP, you have another act of infringement.
With regard to the fan suing GRR Martin, the idea is beyond farcical, and it is just plain ignorance on Martin’s part.
If the fan had managed to find an attorney to take her case, and then filed a suit for infringement, Martin’s publisher’s attorney would have responded with a nearly boilerplate 12b6 filing for failure to state a claim, as well as a host of other counterarguments, and they would have won with a directed verdict on the pleadings. The whole thing would have taken 3-4 months, and the plaintiff would essentially have been laughed out of court, and the claims would have been dismissed with prejudice.
“Except…that’s not at all what he claimed.”
He claimed “If someone infringes on your copyright, and you are aware of the infringement, and you do not defend your copyright, the law assumes that you have abandoned it.”
And that’s true… To a degree. You have 3 years from the date you become aware of the infringement and if you do not defend against said infringement, the law assumes that you have abandoned it… In that instance. If you set a precedent, you run the risk of weakening any legal claim you have with enforcing your copyright.
The fundamentals of his argument are accurate, even if the details are off.
Re: Re:
Still false.
Read the next sentence. His claim is that if you ignore that single instance of infringement, “the law” renders your copyright abandoned. Not true. Not partially true. Not anywhere near true. Not even true with trademarks.
Yes, choosing to ignore a case of (potential) infringement may weaken you in future cases, though that is unlikely if the cases are substantially different. That potential has nothing to do with what he falsely claimed.
The fundamentals of his argument are based on ignorance of the law, and not a single correct detail.
Re: Re: Re:
You’re arguing with the peanut gallery. Doesn’t matter what you say, he’s still going to tell you that you and Mike are wrong, because he doesn’t have a fundamental understanding of what is being discussed.
Questions
I’ve been reading this blog for a short time and have a few questions regarding copyrights. George Lucas holds the copyright over Star Wars, but has others write for the movies, cartoons, video games and countless others in the franchise.
When a copyright is held by a corporation how do they figure the life+70 years? Sure, Lucas had the idea and made the first movie in the 70’s but now that he has a staff of writers at his beck and call he’s not the one doing the expression.
One other, when Disney remakes a folk tale from long ago uses the same names and descriptions, how much control do they have over the orignal tale? Can someone come and do the same thing but go in a completely different direction?
I they sound like stupid questions but They nag me.
Re: Questions
George Lucas holds the copyright over Star Wars, but has others write for the movies, cartoons, video games and countless others in the franchise.
That copyright has probably been transferred to Lucasfilm or some other corporation, but yes.
When a copyright is held by a corporation how do they figure the life+70 years?
There are provisions in the statute for corporate authorship. See here.
Sure, Lucas had the idea and made the first movie in the 70’s but now that he has a staff of writers at his beck and call he’s not the one doing the expression.
Yes, and they are almost undoubtedly generating those new expressions as work for hire, which means Lucasfilm (or some subsidiary or something) gets the copyright.
One other, when Disney remakes a folk tale from long ago uses the same names and descriptions, how much control do they have over the orignal tale?
If the folk tale is in the public domain, none.
Can someone come and do the same thing but go in a completely different direction?
Yes. In fact, this happens often. It’s fairly commonplace for low-budget direct-to-video adaptations of public domain stories to hit video stores right when a blockbuster based on the same story is in theaters. When Spielberg released War of the Worlds, no less than two new direct-to-video adaptations (1, 2) were released at the same time. I recall seeing low-budget animated versions of Mulan and Aladdin in video stores right when the Disney versions were out.
The issue here is one of “derivative works.” You can create a derivative of the original public-domain story, the same way Disney can. However, you have to be careful not to incorporate original extensions that Disney made to the story in their version.
You and Disney can both adapt Beauty and the Beast, but if you start including things that were not in the original like a father named Maurice, a villain named Gaston, and a singing candelabra named Lumiere, you’re creating a derivative work of the Disney version and not of the original public domain story. Derivative works are separately copyrightable, but you only get a copyright in the novel elements (you don’t get any rights over the original).
When the copyright for Star Wars expires, you will be able to freely create your own movies based on the characters and situations from the original Star Wars. However, you will have to wait a couple years before you can send those characters back to the ice planet of Hoth, since that element was not introduced until Empire Strikes Back. You will have to wait a little longer for them to run into Admiral Thrawn, and so on.
Also, right down below this post you’ll shortly see a bunch of replies that have nothing really to do with your original question. These are the Techdirt Whargarrblers. They’re the ones that will be posting things like: “wharrgarbl wharrgarbl the copyright on star wars will never expire because george lucas is an evil corporate whore that is STEELIN OUR CULTURE and all the senators in the entire united states are in his back pocket and the entire government is corrupt and PALPATINE PALPATINE LOL and barack obama was born on mars whargarrbl.” Ignore or engage with them as you like.
Re: Questions
Lucas also encourages both fan fiction and has a fan film contest.
Here’s what Brandon Sanderson (an (imo) excellent fantasy novelist who recently decided to offer one of his novels, Warbreaker, for free under a non-derivative-works CC license) says about this issue:
This sounds very reasonable to me (and personally I feel that the The Wind Done Gone is likely far more transformative than typical fanfiction; indeed, I get the impression it’s more of an attack on the original than an attempt to capitalize on its success) and it seems like other fantasy (or other fanfic-heavy genres) writers could avoid these problems without antagonizing their biggest fans this way. I wonder what this legally actually means though and how courts might enforce it…
Normally I’m all in favor for the free circulation of ideas, and the fair use, and the “less tribunals, the better” but if an author who I respected, love and admire is asking me not to use is characters, and especially not wrote them in a published novel, why not respect is whish?
If we would free the internet from all copyrights, sues and tribunals we need to accept some other form of “social pact” (or someone really would prefer total anarchy, “I do what I want and you can…” like unruly teenager?), and one of the most basic is friendship: I don’t sue you for a fanfiction, but it’s better if you control what I have said about fanfiction before writing it.
Re: Re:
That is your right and it seems quite the proper thing to do.
However, an author you might respect enough to honor his wishes I might view as a turd. Therefore I may have no respect for them and may not feel in the least compelled to respect their wishes. Which is my right.
Re: Re: Re:
But then you wouldn’t write fanfiction: you would use the ideas of another person to gain some money, the same as if you are a big movie major using his idea to do a movie.
The premise of fanfiction is that it’s a tribute to an author, to his work or to his world, that a persone wrote primarily to contribute, not to gain.
Once again
We see the psychological harm that getting obsessed with copyrights (or patents) does to the creator.
whenever i see a post like this on techdirt, i know its friday. light on content, heavy on emotional crud. in the end, it is a very narrow little piece of the copyright world, and not particularly meaningful except to people who are so non-creative as to be stuck using someone elses characters to ‘create’ something. sad, really. then again, this is pretty much how mike seems innovation, duplication with a new coat of paint (or a variance of a plot line, as the case is here).
Re: Re:
Obvious TAM post is obvious.
Re: Re:
whenever i see a post like this on techdirt, i know its friday. light on content, heavy on emotional crud. in the end, it is a very narrow little piece of the copyright world, and not particularly meaningful except to people who are so non-creative as to be stuck using someone elses characters to ‘create’ something. sad, really. then again, this is pretty much how mike seems innovation, duplication with a new coat of paint (or a variance of a plot line, as the case is here).
Once again we see the psychological harm that getting obsessed with copyrights (or patents) does to the creator.
Re: Re:
clearly you have no clue what you are talking about. Fan fiction is a way to honor the stories we love. It harms no one.
Re: Re:
“sad, really. then again, this is pretty much how mike seems innovation”
Yes, by all means, lets debate the person rather than the topic.
You are a predictable bore. None of your posts are interesting, contain valuable information or have any redeeming qualitites what so ever. When you see a topic that you have little interest in or you feel is unworthy, rather than not post anything, you post the same old drivel.
You may be suffering from a treatable condition, a professional could provide help. I am not a doctor but you may be suffering from CRI, or cranial rectal inversion. Another possiblity is that you are an anti-social schizoid, or ASS.
Re: Re: Re:
‘You may be suffering from a treatable condition, a professional could provide help. I am not a doctor but you may be suffering from CRI, or cranial rectal inversion. Another possiblity is that you are an anti-social schizoid, or ASS.’ – or perhaps i dont think it fair that someone like mike can sit here and spew out either half truths, misinformation, or pull heart strings to draw conclusions that arent supported by law or by common sense. i am not debating the person, i am debating the persons ideas. mike may be a nice guy, but he his posts are also very manipulative and often fairly midleading. if there is any benefit, he has been carefully avoid terms like ‘troubled’ and ‘we have already shown that’ this week. perhaps he is learning after all.
Re: Re: Re: Re:
“this is pretty much how mike seems innovation, duplication with a new coat of paint “
“i am not debating the person,”
Add denial to the list of things to ask your counselor about.
Re: Re:
You’re like some strange mixture of a shill and a troll, like some sort of shill/troll or a shitroll.
You sir, are an idiot
AC #19, fanfic writers are average people exercising a creative outlet. Same as a housewife that takes a class in oil painting where the objective is to basically copy some real artist’s painting (usually boring, like a vase of flowers) to gain technical skills and enjoy the act of creation. Saying either of these groups are “sad” and “noncreative” is severely missing the point. These activities, whether you or I like the results or not, enhance the lives of those people. They aren’t trying to compete with “real” artists, nor should there be a rule that says they must. Or should we only allow artists who have never seen another painting, and writers who have never read another book? Of course not, because derivation, allusion, influence, parody and re-imagining are all integral parts of creating. Get over yourself.
Re: You sir, are an idiot
housewives dont try to pass themselves off as great painters, but it seems that many fanfic writers are prone to it. when you look at the extension novel to the catcher in the rye, that could be called fanfic, right? fanfic would be something written for yourself and maybe given to a couple of friends for fun, similar to the housewife doing some replica style paintings and giving them to family members as gifts. but the current realm of fanfic is leading to widespread publication. it isnt the same as it was, now is it?
Re: Re: You sir, are an idiot
TAM: Terrified of the future 24/7.
Re: Re: You sir, are an idiot
You sound very bitter about fanfics. Can you point us to these writers who have the audacity to proclaim their greatness? I have read a few that are decent, but most are honestly not, and don’t claim to be anything more than gratuitous wish-fulfillment or creative exercise. Never have I seen any that were trying to get “widespread publication” or make money… posting on a messageboard or usenet group is not equivalent to publishing to make money. There are these few horror stories being floated around but these rare events are not backing up your premise that fanfic writers are somehow pompous evildoers.
Re: Re: Re: You sir, are an idiot
i didnt say anything about publishing for money, only widespread publication, such as putting a story in a torrent and moving it onto major file sharing sites, publishing on a website, etc. there are plenty of fanfic chatboards full of people writing and trading stories, and some of them get pretty wide distribution. using mikes version of free virtual distribution, there is no reason why a fanfic story would have any less distribution than anyone else does. that changed everything, no? plus it is no longer the author that controls it, he or she might give it only to a few friends, but one of those friends decides to widely share it. the intent by the fanfic author wasnt there, but it can easily happen outside of their control.
Re: Re: Re:2 You sir, are an idiot
Then you’re even more daft that I originally thought. So let’s say I write a fanfic using characters from Lost and share it with my 3 friends that watch the show together. Then one of them decides to share it online as their own work. Or one decides it’s a piece of trash and they hate me, so they’ll post it online for derision. Or any other way it might get out. Do you want to sue me now? Why? Who cares how many people have read said my trashy story, honestly?
I don’t understand what you are arguing for. Are you against writing any fanfic? So it should be punishable even to have? What if I dream up sex fantasies for characters in my favorite TV show? What if I tell them out loud to people? Are we talking thought crime here?
You need to realize that the creative process isn’t some cradle of safety. You put your ideas out there, they might get used for or to justify bad things (see: Darwin). You don’t put them out there, well, someone else likely will eventually. The world isn’t a giant tea party and this is just facet of that.
Re: Re: Re:3 You sir, are an idiot
you are confusing their intentions with the results. if your fanfic becomes widespread and widely distributed, the harm done is the same as if you intentionally published it (and possibly profited from it). the end results are the same, regardless your intent. the rest of your post is just a collection of bizarre absolutes, which are meaningless in the case of this discussion. nobody is telling you what to think or say.
Re: Re: Re:4 You sir, are an idiot
I see you are unwilling to have a rational discussion.
Intent and results are very different here. If it is ok to write fanfic, you can’t suddenly make the same act (writing the story) illegal based on the actions of a third party. That would be ridiculous. If you really think that, you’re admitting what I have already suspected, that you think *all* fanfic of any sort should be illegal. Which is just sad.
Only a problem for mediocre authors.
Which, from the writing samples given here, Martin is.
I’ve read some attempts to imitate my favorite authors, and they fall entirely flat in both style and substance. Heck, it’s been proven impossible to imitate even Ian Fleming’s travelogues/spy stories, despite millions available to hire hacks.
But there’s a sheerly commercial view that may be more in play than apparent. Stephen King and JK Rowling are both rumored to be merely fronts for unknown writers. Wouldn’t surprise me for either. King’s formula is inexplicable unique horrors; Rowling’s is English boarding school cliques and intrigues with some inexplicable witchcraft thrown in. Therefore, those, er, factories have a *high* level of interest in preventing similar efforts — because *can* be imitated.
unexamined copyright-conditioned mindset
The ‘moral’ anti-fanfic opinion is the weak product of being conditioned to copyright, with no realisation or examination of whether it makes any sense.
Essentially, these authors want to control what other people do, but that requires a solid justification. I would think it is basic to any rational morality that we are equal and no-one has right to power over anyone else. Any exception must have an equally substantial counter-balance.
Such authors want to materially interfere with and obstruct other people’s actions. On what grounds? Because these authors ‘feel’ offended, and that is if they even know of the existence of the ‘offending’ material. A sentiment bordering on convention or preference is hardly adequate to justify control of someone else.
Such authors need to adopt a different attitude and remind themselves that creation is more akin to discovery than ownership. Finding, or even building, a country doesn’t justify one becoming its dictator or tyrant.
why fan fiction is deemed an infringement
The reason fan fiction is generally considered infringing is because characters in and of themselves are protected by the copyright accorded the work in which they originally appear. Thus, the Catcher in the Rye “sequel,” “60 Years On,” which depicts Holden Caulfield at age 80, was deemed an infringement because Caulfield himself is deemed a copyrighted character. If you write a Star Trek piece of fan fiction, therefore, you would be infringing the copyright in Spock and Kirk.
“The Wind Done Gone” was permitted as a parody of “Gone with the Wind.” In other words, it was permitted because it constituted a critique of and commentary upon GWTW. Since critique and commentary are, of course, crucial to the maintenance of free speech, parody is a well-recognized form of fair use.
Most fan fiction, however, is not parody. It is, instead, just an extension of the fictional worlds and characters created by the original authors.
I’m not saying that I think the fact characters can be copyrighted is a proper application of copyright law, but it is very well embedded in the existing case law. So much so, in fact, that a car ad without any dialog that had a suavely dressed man making a daring driving maneuver with a beautiful woman in the seat beside him was deemed an infringement of the copyright owned in the James Bond character. Ridiculous, but true.
Yeah, right
Stephen King and JK Rowling are both rumored to be merely fronts for unknown writers.
Is that so? First time I’m hearing this and I’d call utter bullshit on that.
Re: Yeah, right
No, it’s true. Both are actually computer programs controlled by the Disney corporation.
Re: Yeah, right
@ techflaws
Yes, that’s so, despite all the skepticism that you can put into one line. You first commit the solipsistic error of “I haven’t heard it, therefore it’s not true”. Then you react in apparent fanboy shock with mere vulgarity.
I state that it’s rumor, and that I tend to believe it, and on what basis: that they’re formulaic writers (of course, Rowling is far better than King). — Can I prove what’s known to only a handful of people, all of whom have a high interest in keeping the secret? Of course not. But the writing, and the empires surrounding, are evidence.
Since after reviewing the totality of your comments to date, it appears that we agree on other matters, I’ll just hope that from here you write fewer trivially negative one-liners directed to *commenters* and instead write actual *comments* on the topic.
[There. See how neatly I’ve trapped you? If you expand on your views, I take credit for the change, while if you continue with only brief negative attacks, you’ll rightly see yourself as a mere troll.]
Fan Fiction Isn't Evil
The best example of fan fic not being evil is Star Trek. Paramount obviously owns the copyrights of ST, but has turned a blind eye to fan fic for decades. I hardly think Paramount is in danger of losing the ST brand to a bunch of fans. On the contrary, the fans have kept ST alive for decades and Paramount is smart enough to know and recognize the passion of Trekkers who write fan fic.
Re: Fan Fiction Isn't Evil
Kevin, Star Trek is a bad example… because it wasn’t necessarily in copyright. Under the 1909 Act, a work was not in copyright until it was registered, and Desilu/Paramount screwed up and did not register copyright in many the episodes as broadcast. In the mid-1970s, somebody at the studios discovered this, blanched, and quietly registered a batch of shooting scripts, which continues to be the “registration” at issue in copyright infringement suits concerning Star Trek: The Original Series. To say the least an expensive lawyer could have a very, very good time with this in court…
Of course, by now, for this particular property, the trademark claims are far stronger, far clearer, and far simpler than copyright infringement claims based on ST: OTS. Nonetheless, because the remedies available for a copyright suit are a lot more favorable to the owner, you’ll see copyright bandied about as the primary weapon whenever there’s an alleged infringement.
Then, too, on top of this there were questions of succession of interest (who really owned what piece of the copyrights) due to the snarled interaction of the bargaining agreements between the WGA (representing freelance writers, for 40-odd out of the episodes) and the producers; the purchases of Desilu by Paramount and Paramount by Viacom, etc.; the licensing agreements between NBC and the studio; sloppy recordkeeping that makes the provenence of the Spider-Man and Terminator properties look neat and clean; etc., etc., etc. Star Trek is an almost paradigmatic example of a property succeeding long term in spite of bad legal advice and procedure!
@19
what a moron
seious moron
heres a better example for you TAM
if i make a online game based ona s et of books htat the original authors are BOTH dead, there company has been sold resold and sold again. AND its form 1977 and not even in proper print in stores you can only apparently get the ebooks at inflated prices. YOU’d tell me i am a pirate for bringing the books to life ina game based on those editions and yet neither the author nor anyone else has done this OR even htought of doing it.
furthar kick in head to me, i am told if i want to opensource my code ( the current company said go ahead using OUR open gaming liscense ) this means that every person wishing to get my open code has to buy a copy of 5 1977 books that can only be had at once place at 10$ a pop.
this is what prevents fans form doing things
and SIR i am the guy that wrote 8000 lines a perfectly running code in a day
I am the guy that organized and setup that code for the server and have even a working prototype , just i can’t open source the code or sell or share otherwise due to YOUR LAWS. THIS beyond all else is what tends to have coders and writers and other TRUE artists and fans just plain ignore the laws , they dont make sense most times and you just can’t legislate common sense. ELSE we could codify to law TAM is to be hung by his nuts until dawn so he can stretch out and hang a while longer.
Re: @19
sorry rd, i cant follow you. maybe you want to try english instead of whatever angry language you are using to post. oh yeah, try the reply to post button, i know you know how to do it.
I write fan fiction
I’ve been writing it for years, from Star Trek to Harry Potter and I’ve never had a single complaint. I have even been encouraged by authors to continue my writing. I think it is legal, fun and it helps with my writing skills. I don’t see this guys argument. He at least should learn the law before making a fool of himself.
Yeah, that has nothing to do with the fact that Lovecraft’s writing was almost completely unknown until sixty years after his death… while people were making Tarzan movies while Burroughs was still alive.
Re: proof that you should protect your works
Burroughs died rich because of the immense marketability of his subject matter. Lovecraft died comparatively poor due to the lack of mass appeal of his writings no matter how superior it is to Burroughs’ work. Copyright was not a factor nor was the encouragement by Lovecraft for others to use his work. Burroughs was far more copied. Tarzan, for example, was the obvious basis for Kaspa, Zan, Bomba, and female versions like Eisner/Iger’s Sheena, that appear in books, animation, TV, and films. None of this seems to have hurt Edgar’s bank accounts.
Re: Re: proof that you should protect your works
Apples and oranges, that’s all I’m saying. Copyright had nothing to do with it.
I see no reason to care about fan fiction unless someone has the audacity to try and sell it, as was the case with “Through the Rye”.
Re: Re:
I see no reason to care about fan fiction unless the fan starts writing better novels than the other author, then I will happily buy his books instead.
(fixed that for ya)
A story is not just the setting, plot or characters (though these do help) – it is in the expression of the authors imagination. If a fan can take the same characters, plot and setting and turn out a much better acclaimed work… you get the point?
If you can write – shut up and write. If not then read! 🙂
“try the reply to post button, i know you know how to do it.”
If you have to explain it, it’s bad UI implementation. Maybe Techburp needs to find a better usability engineer. These types of people do exist.
“try the reply to post button, i know you know how to do it.”
http://www-03.ibm.com/able/guidelines/web/accessweb.html
Maybe the design team can begin by focusing on section 2.3.
“That’s why you have the case of The Wind Done Gone, which is an (unauthorized) rewrite of Gone With the Wind from another character’s perspective. In that case, the 11th Circuit found it to be fair use. But, then again, we have the more recent case of Coming Through The Rye, an unauthorized sequel to Cather in the Rye — which is still being argued in the courts, but so far, the courts have not bought the fair use claim (which, by the way, has horrified some copyright/fair use experts).”
11th circuit vs 2d circuit.
MZB Issue
Great post, Mike. Also, re the MZB issue–first, if not for copyright, the fan could not have threatened to sue MZB, so this example is hardly an argument for copyright! Second, the example really had little to do with fan fiction: copyright would not stop the fan from writing the Darkover novel in progress in private, and then writing MZB about her idea–at which time the same course of events could have happened … all because of copyright law.
Or suppose someone wrote a book review of an earlier Darkover book, and included a paragraph or three, “It would be great if MZB would write a sequel having the following plot: ___.” Now suppose MZB wanted to write such a sequel, or even had been working on one–the fan could say this was a derivative work of her plot, as much as in the case above (I think).
Re: MZB Issue
There’s an even simpler situation we could use as a thought experiment.
Both MZB and her fan write their fiction independently. When the fan fic comes out, rather than contact the author, MZB simply ignores it, and continues writing her own book.
Now, a couple months later, MZB’s novel is released. The fan reads it, and sees her own idea in the novel. Quite naturally, the fan thinks “Hey, she stole my idea!”
If we are to believe Martin, the fan must sue MZB. If not she will lose any rights over her own writings.
I somehow doubt that’s what Martin had in mind, but it makes as much sense as anything he said.
Martin's Armageddon Rag
I am guessing that Martin’s opinions on fan fiction, and copyright protection, are pretty deeply influenced by the MZB anecdote and his own experiences with The Armageddon Rag. As such, it might actually be less about fanfic and more about the general topic of copyright infringement.
I remember buying and reading The Armageddon Rag in the 80s, a couple of years after its release. I still have a copy of it, enjoyed it, and have reread it a couple of times.
What I did not realize until today is that:
a) the book went out of print
b) the entire book (apparently) is now available on Google Books
I am guessing that Martin wasn’t happy about his novel being freely available via Google Books and tried to fight it (although he opted out of the Google Books Search settlement, as did a number of other authors).
I’m starting to think that branded vs. generic drugs is a model that the book industry needs to investigate, weird as that might sound.
Re: Martin's Armageddon Rag
Copyright holders can opt out of Google Books entirely if they want to. If Martin wanted his book taken down, he could just contact Google, and they would remove it.
That process is independent of the settlement, so opting out doesn’t necessarily mean anything.
Re: Re: Martin's Armageddon Rag
This is the bit I don’t understand. Why is Google books an opt-out thing at all. Google has no rights to violate copyright and should be asking permission. In other words, it should be very much an opt-in process with the default being “Get your grubby little hands off my creative work” 🙂
Can someone with more knowledge of this enlighten me?
Some Fiction About Fan Fiction
Here’s some non-fiction about ivy league-educated fiction.
It seems they believe that all intellectual works should be free, without payment.
The common thread amongst several disciplines seem to be that monetization is up to you, unless you have, say a MBA from Harvard, or Cornell or otherwise that could assist monetizing it.
Funny how this blog works.
The declining quality of the later books in the series wasn’t enough to make me forget about it, but reading through his blog and his comments has made me not want to read his stuff.
if you don’t want someone doing something with “your” characters, don’t publish them, problem solved. All characters are based on thing the authors have come across in life, so non of the characters are actually theirs any fucking way. This whole imaginary property crap was created as a method to transfer wealth from low/middle class and concentrate it in one spot, and has absolutely nothing to do with encouraging anything other than slavery.
Extreme Videos
SPAM!
Diana Gabaldon
In re-reading Martin’s post, I tried to go to the original series of posts by Diana Gabaldon that he references. She actually took all of her posts down, but they are archived here:
http://kate-nepveu.livejournal.com/483239.html
Some interesting tidbits:
– Though Gabaldon is pretty offended that a lot of fan fiction is pornographic (she uses the word “ick” many times), her books are themselves chock-full of all kinds of sex, consentual and non, as detailed here:
http://sheafrotherdon.livejournal.com/496294.html
– One of Gabaldon’s characters (“Jamie”) is based on a character with a very similar name from Doctor Who.
http://en.wikipedia.org/wiki/Outlander_(novel)#Characters_in_.22Outlander.22
She is, in other words, more than a little hypocritical. (And I’m not even considering the “moral dillema” of whether she should allow fan fiction in a benefit for a cancer patient.)
Martin didn’t bring any of this up, though of course he didn’t have to. But it’s interesting that he should cite her as the one whose views he most agrees with.
Seeing as the rest of his arguments (“use it or lose it,” Bradley vs. fan, Lovecraft vs. Burroughs) don’t hold water, I’d say this is just another nail in his coffin.
Mickey Mouse
What’s the dividing line between “fan fiction” and “no fan fiction”. If I were to take Roger Zelazny’s Amber World and write an Amber Novel and sell it – would I be crossing the line?
What about Mickey Mouse? I hear occasional fear mongering over the fact that the “copyright” is going to expire. Is it different because it’s art? Would not my expression of the mouse be “different” or does it have to be different enough to avoid the copyright issue?
Re: Mickey Mouse
Mickey Mouse is also a Disney Trademark so they would probably use that instead.
Most Fan Fiction Constitutes A Form Of "Derivative Work" Under Our Ridiculous Copyright Laws
I’m in complete agreement that fan fiction SHOULD be allowed. Mike is also correct to point out that R.R. Martin is simply wrong on certain points such as confusing trademark law concepts with copyright law.
But here is the ultimate problem with the overall analysis by some from the legal perspective (and why most fan fiction IS a copyright violation under current law – even though it shouldn’t be from a policy perspective): If you allow fan fiction in one medium (i.e., literature and comics), then there is no real justification for not allowing it in all mediums (i.e., film, television series, etc.).
In other words, if you allow fan fiction for J.K. Rollings’ characters in the form of books, then there should be nothing to prevent you from making unauthorized Harry Potter movies to compete with those that currently exist. Same with James Bond, etc. Yet if you were to try to do so, you would certainly be (successfully) sued by Sony Studios, along with the estates of Ian Flemming and (producer) Albert “Cubby” Broccoli.
Ultimately, fan fiction cannot be distinguished from any other “derivative work” or sequels that copyright owners have exclusive rights to. Copyright law allows people to prevent the creation of derivative works. That’s not the way it should be, but that is the way it currently is.
The real problem is the fact that copyright law grants monopolies over “derivative works” in the first place – thus diluting (and arguably even obliterating) the notion that copyright shouldn’t extend to “ideas”, only the “fixed expression” of ideas.
An exception does indeed exist for “parody”, but the legal (and admittedly vague) concept of parody as enforced by the courts is more narrow than many (understandably) want to believe here.
The mere fact that an unauthorized work “comments” on a previous work does not make it parody (or fair use). In a sense, ALL derivative works and sequels comment on the first underlying copyrighted work at some level. In “Casino Royale”, when James Bond is asked if he wants his martini “shaken or stirred” and he responds by saying “Does it look like I give a damn?”, this of course is “commenting” on all the previous Bond films which built up the “shaken, not stirred” mantra. This doesn’t mean that “Casino Royale” is a “parody”. If I had wanted to make that film on my own as a work of “fan fiction” (before Hollywood actually made it on their own), I still would have had to secure the rights from Sony, Flemming, et al. in order to avoid copyright liability.
It all sucks. It shouldn’t be that way. But that’s the way it is.
I’m in total moral support with what Mike and others are advocating here. But I should caution against conflating policy desires with objective legal realities.
It seems to me that the only fair solution is a radical overhaul of how copyright law treats the overall issue of “derivative works” – not to carve out a narrow exception for written “fan fiction” in terms of what should be protected speech.
That’s my two cents anyhow.
Re: Most Fan Fiction Constitutes A Form Of "Derivative Work" Under Our Ridiculous Copyright Laws
That’s actually not what copyright law says. Part of the test for copyright infringement is whether the infringing content would be competition for the original content.
Courts have historically thought that producing content in one medium (e.g. film) can compete with the same content in another medium (e.g. books). But that is part of case law, not federal law, and case law is notoriously self-contradictory.
In any case, allowing fan fiction in the written domain should have no effect if you decide to sue a movie studio for producing a film version of your story. Obviously it’s not cut-and-dry, but in theory, allowing fan fiction should have no impact on copyright enforcement in other mediums.
Keep in mind that I’m not a lawyer, just a guy who follows this stuff in his spare time. And since these laws are incredibly muddy, “in theory” means “don’t bet money on it.”
If we didn’t allow fan fiction in this world, we’d really be missing out on some quality literature.
Re: Re:
Without fan fiction I wonder if the publishing industry would sell less books? You know, because there aren’t as many fans to purchase the books.
“Martin doesn’t quite get to the extreme argument we’ve heard before, but he sort of hints at it, with his claim that his characters are his children and only he gets to control them.”
And just like children who grow up and go out into the world on their own his characters shouldn’t expect to keep “his children” under his eye forever.
And once again another artist shows that he is mostly an ignorant moron. I’m firmly behind not letting those idiots talk about anything or the carefully nurtured by PR managers and legal advisors public image crumbles to dust.
Karl –
I happen to be a lawyer, but I’ll admit its irrelevant since anyone can debate copyright law if they simply read up on it (you don’t need a law license to do so, and I encourage you to continue to do so).
With that said, your analysis is incorrect. Copyright law (both in its formal written terms as well as case law) clearly gives an author exclusive right over “derivative works” – this includes all sequels in all mediums based on the original work (film, tv, sculptures, literature, etc.). If I write a book on “The Life of Character X”. Then I have control over who gets to make a movie based on “The Life of Character X” or who gets to write “The Further Adventures of Character X”.
Even if I choose not to make a film adaptation of my work, such a film would still be “competing” with my original work according to long held copyright rulings and precepts.
Again, this all sucks since current copyright law sucks. But that is objectively the way copyright law works. You are respectively mistaken.
Re: Copyright law
Sorry, I thought that’s what I was saying – obviously I was wrong about it being only case law.
My point was this: if you allow fan fiction, that doesn’t mean that you can’t sue a movie studio for making an unauthorized film of your book. Permitting use in one form of derivative work does not mean you’re permitting use in all forms of derivative works.
Am I correct about this, at least? If not, why not? I’m not being contrary, I’m genuinely curious.
Re: Re: Copyright law
Karl –
If the author of work creative work “X” allows fans to create fan fiction based on “X”, then the author would certainly retain the legal ability to prevent film adaptations based on “X” if he/she wanted to. But that is not what I took to be your point.
You are (or seem to be) suggesting that if the courts were to recognize a fair use right to create unauthorized fan fiction based on “X” (without the author’s permission), then the court could still prevent unauthorized film adaptations based on “X” by denying similar fair use protections simply and purely because it is a film (versus a written work). This is a false legal assertion.
Fair use rights intersect with First Amendment concerns. In this respect, the courts do not “value” print works more than film works and vice versa. They will simply analyse if it is a “derivative” work or not, and then apply copyright law principles to it.
Re: Re: Re: Copyright law
Aha, I was just confused by this:
I thought the “you” in that sentence meant “the author.” Obviously, you meant “the law.” I had just read the “use it or lose it” justification from Martin, that’s why I was thinking that way.
Re: Re: Re:2 Copyright law
Aha indeed.
Blog comments are admittedly a more cumbersome form of communication than many realize. It seems to encourage quick language shorthand styles as your initial thoughts spill out, but ends up requiring more exacting precision of words in order to properly clarify one’s point.
Books
> None of that takes away from the authentic characters that you
> create yourself. Just because someone else does something else
> with the characters, it doesn’t change or impact the stories you
> wrote.
Yep. As Stephen King once famously said to a reporter who asked him how he felt about Hollywood ruining his books: “My books aren’t ruined. They’re sitting right up there on the shelf, same as they always were.”
missing the point
In the case of Cthulhu vs Tarzan, which one has had the most lasting impact on society? Cthulhu stories are still being written, movies are still being made, there’s even a musical theater story. Tarzan? Well there was that Greystoke movie, I guess, like 20 years ago. Some cartoons. Old black and white TV show. No new ideas being written. No further stories shared, no mythology being built. Edgar Rice Burroughs built it, it is all his. Lovecraft didn’t even like the mythos he helped spawn, but it is still growing, organic, alive. Tarzan is sort of stagnant. But at least ERB was rich, am I right? Also, anyone who follows fanfics knows the difference between pure fanfiction and something that is “canon”. Just look at the Star Wars novels. Lucas is still around to bless some bits as canon and others as just interesting stories. Would the author rather we stick to parody which is definitely safe? He’d rather us mock him than pay homage to his creations?
Fan Fiction
Haven’t read the blog in question, but I did want to make a point here…I am a small press author (read no one would ever want to write fan fiction of my stuff) but I have a lot of friends with bigger publishers. They do HAVE to defend their work and discourage fan fiction with an iron fist. It is in their contracts from the publishers. Not quite the same slant that Martin was giving, but the same general point…
Fan Fiction
I don’t think fanfic all that bad, or that reading/writing it makes you an awful person. Several published (and IMHO, skilled) authors wrote fanfic before they went pro — and a few are still active in both creative spheres.
All that said, and regardless of fanfic’s legal status, I think respecting an author/creator’s wishes w/r/t fanfic is really the only decent thing to do. If they are on the record as being uncomfortable with fanworks based on their IP, respecting their wishes is the only way to avoid being a creep. The majority of the fanfic crowd seem to get this, but there are a neurotically entitled few that seem to equate legal with moral — and they tend to be so outspoken and obnoxious as to give the rest a bad name.
Personally, I suspect that most fanfic is copyright infringement. “The Wind Done Gone”, and other profound reimaginings like John Gardner’s Grendel can clear the fair use bar b/c they are sufficiently ‘transformative’, in a way that a simple continuation like “Coming from the Rye” isn’t. Most fanfic can be described as, “Just like the show/book/movie, only Character X and Character Y are doing it,” and, IMHO, isn’t all that transformative at all.
As for GRRM, while his examples may not have been well-chosen, his statement against fanfic was mannered, polite, and miles away from Gabaldon’s ad hominem screed. He’s not the bad actor here. He made a statement and a request. Decent people will respect it, jerks wont. And his confusion w/r/t to defending copyrights vs. trademarks strikes me as largely irrelevant. With ASOIAF about to become an HBO TV show, the releated IP is trademarkable as well, and will probably need to be defended as such.