Some Fiction About Fan Fiction
from the learn-to-let-go dept
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.