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

Has Shepard Fairey Learned That He's Been Hypocritical When It Comes To Others Appropriating His Works?

from the one-might-hope dept

Shepard Fairey, the well-known appropriation artist who created the famous Obama “Hope” poster is in a well-publicized legal dispute over the image of that poster, with both the Associated Press and the photographer who took the original photo. It’s a fascinating fair use/copyright lawsuit, but it’s made a lot more complex (and not in a good way) by the fact that Fairey has been his own worst enemy, in multiple ways, throughout the lawsuit. The biggest — and most ridiculous — was the fact that he flat out lied and destroyed evidence. It’s hard to think of anything more stupid, frankly. He had an incredibly strong fair use claim just based on using the photo that everyone knew he used — and rather than focus on that, he clouded up the whole thing by pretending it was a different photo and destroying evidence. Those moves completely muck up the case and make it that much harder to judge it on the merits.

But there’s another part of Fairey’s actions that has been equally troubling: he’s been known to aggressively go after others for copying his work, despite the fact that the entire basis of his work is appropriation art. Fairey has used his lawyers in a manner not unlike the recent case we wrote about involving the estate of appropriation artist Roy Lichtenstein threatening a band for using an image that was copied not from Lichtenstein’s painting, but from the same original source material.

However, it looks like Fairey’s rather abrupt lesson in copyright law may be changing his views somewhat — though we’ll have to see if they really stick. Jay Matteo alerts us to a blog post by Fairey, responding to some questions about a poster used in the movie Iron Man 2 that is stylistically similar to Fairey’s “Hope” poster, and Fairey says:

I have received several inquiries about whether or not I was involved in a piece of art seen in Iron Man 2. I’m friends with the Iron Man movie’s production designer Michael Riva who, along with his wife Wendy, was a big Obama supporter. He asked if I’d mind a HOPE poster spoof in Iron Man and I said “of course not”. I did not personally design the image, nor was I paid for it. All of the Obama HOPE spoofs, positive or negative, are a reminder of the power and importance of grassroots activism to affect things. Additionally, neither is it possible to copyright a style, nor would I want to restrict visual dialog by discouraging others from paying tribute to styles I have used.

That last sentence is interesting, given that he seems to have done exactly that many times over in the past — especially when it came to his “OBEY” campaign. If he’s really changed his mind, at the very least, he should admit that he was wrong in the past and now he realizes that. Otherwise, his statement rings pretty hollow.

Filed Under: appropriation, copyright, shepard fairey

The Blurring Line Between Personal And Professional Activities

from the is-that-a-presidential-endorsement dept

We’ve talked for years about the blurring of the “work-life” balance thanks to our always connected world. These days, it’s not uncommon for people to do some “life” aspects at work (online shopping, banking, etc.) while also doing plenty of “work” things while at home (checking email, creating presentations, etc.). While there are still occasional stories (almost always put forth by companies selling filters) about the “evils” of workers doing personal things on work time, enough studies have shown that people more than make up for such uses by working from home or being more productive when they actually work.

But there are other issues beyond just the productivity question when professional and personal “selves” begin to blend. I’ve definitely noticed this on things like Twitter, where some people use their Twitter accounts for personal things, others for work things — and many for both. Some companies have rules about that kind of thing, though it leads to awkward declarations, such as telling employees they can only use their Twitter accounts for work related issues. But that takes away much of the power of Twitter, which gives people — even in work settings — a chance to better connect with others.

And, one of these days, you just know there’s going to be some sort of legal fight over who actually “owns” a Twitter account: the employee who uses it… or the employer. In cases where an employee builds up a huge following, and tweets mostly about work, sooner or later some company will claim to own that profile (especially if the employee tries to leave).

But, this blurring of work and life boundaries can create other issues as well. Andrew F alerts us to a story which he calls (and I agree) a “little inane,” concerning the fact that White House Press Secretary Robert Gibbs is upsetting some because he tweeted about his local bike shop. In this case, Gibbs did a “#FF” tweet, which is a pretty common usage of Twitter, where, on Friday’s you do a “Friday Follow” (#FF) tweet that highlights someone else on Twitter that your own followers might be interested in following. It’s sort of a neighborly use of Twitter. So Gibbs did exactly what millions of people on Twitter do and gave a shout out to his local bike store:

#FF @CraigatFEMA so you know the latest @RevCycles a great bike store & special thanks to Ken and others there for helping me with my bike

Perfectly normal, and another example of Twitter being used to make famous people more human, right? Well, except in the politicized world of Washington D.C., where suddenly there’s concern that what if this is an “official White House endorsement” and an “abuse of power.”

And suddenly we’re back to the whole blurry border of work and life. The tweet was quite clearly a personal tweet, but with the blurring borders and questions about whether or not any random statement a person makes is now in “an official capacity” or just as a personal statement. The nice thing about Twitter is that it’s quite conversational, so people say things as if they’re just talking to friends they ran into on the street. But the difference is that it’s also broadcast and recorded for everyone.

I think it’s pretty ridiculous to worry too much about the White House press secretary expressing his happiness with the local bike shop that fixed his bike, but it might be a precursor to other issues that are definitely going to come up with services like Twitter as people begin to recognize the new and changing boundaries between their personal lives and their work lives.

Filed Under: balance, endorsements, personal life, robert gibbs, speech, white house, work life

Because Too Many People Think It's A Good Idea, Australia Holding Off On Approving Adult Video Game Rating

from the logic-please? dept

As many of you know, Australia has a strict censorship policy on video games, not allowing anything it classifies as being solely for adults into the country. This has always seemed like an odd decision, since it seems like if you just clearly marked or classified the games as being for those over 18, then adults could decide for themselves what games to play. And, indeed, an effort has been underway for a long time to add an AU-R18 rating for video games. For a while, every attempt to get that passed was blocked by the video game hating Attorney General in South Australia, Michael Atkinson. However, he recently stepped down, potentially clearing the path to allowing “mature” video games into Australia.

However, Slashdot alerts us to the news that the process is being held up, because politicians are concerned that so many people wrote in to support the proposal. Yes, you read that correctly. Because so many people supported the proposal, the government wants to go out and get “more views from the community” from people who don’t like the idea.

Now, I recognize the concern that the consultation process was potentially overrun by “interest groups” (i.e., people who play games), but this is one of those situations where those would really be the people who are impacted most by this ruling — and the fact that they turned out by the tens of thousands, while those on the flip side couldn’t muster up anywhere near the same level of support, suggests that for those this rule would actually impact, the majority would like to knock down that censorship wall.

Filed Under: australia, censorship, video games

Bad Ideas: Hurt Locker Producers Preparing To Sue Tens Of Thousands Of File Sharers

from the putting-your-fans-in-the-hurt-locker dept

Apparently, the producers of the Oscar-winning movie Hurt Locker haven’t paid attention to what’s happened on the internet over the past decade. Despite the massive levels of backlash against the RIAA for its “sue consumers” strategy, the folks behind Hurt Locker are preparing to sue tens of thousands of people for unauthorized file sharing of the movie. Apparently, they’ve signed up with the relatively new operation US Copyright Group, that is trying to copy the strategy used by ACS:Law and Davenport Lyons in the UK, where they send out thousands upon thousands of “pre-settlement” offers to get people to pay up. This process has lead to condemnation from politicians (who have called it a scam) and lawyers being barred from practice and being disciplined by regulatory boards.

But, apparently, that’s of no concern to Hurt Locker’s producers, or to Thomas Dunlap, the lawyer behind this scorched earth sue ’em all campaign. They may learn — quite quickly — about the backlash suing your biggest fans can cause. It’s hard to think of a strategic move that will make things worse than this particular move. Have they not noticed what happened to Metallica after that band tried to sue its fans? Lots of people were interested in the movie after it won the Oscar, and plenty of people have been renting it. Yes, lots of people have been downloading it and sharing it as well, but that’s not going to stop one way or the other. But in attacking people who want to watch your movie not just with legal threats, but with a full on lawsuit is ridiculous on any level. I actually had Hurt Locker in my rental queue, but there’s no way I’m renting it now. I have no desire to support movie makers who would go to such ridiculous lengths for no good reason.

In the meantime, Dunlap and US Copyright Group are now claiming that 75% of ISPs have “cooperated fully.” That’s a very different story than we heard back in March — at which time only one ISP had cooperated, and others seemed pretty skeptical. In fact, in that original case, the fact that ISPs cooperated was even more questionable after it came to light that the copyright in question was not registered in time. If it’s true that most ISPs are cooperating and handing over IP address info, based on such sketchy proof, that would be a dangerous precedent. What happened to ISPs insisting they would never just hand over such information?

Filed Under: hurt locker, lawsuit, movies
Companies: us copyright group

EA Continues To Piss Off Lots Of Customers By Trying To Block Used Market With Single Use Codes

from the such-anger dept

Late last night, people started submitting variations on this story about how EA is expanding its controversial program to use one-time use codes on EA Sports Games, which basically let purchasers access more aspects of a game, but only with the purchase of an additional $10 or $15 code. The only real reason for this is to hold back the used video game market — something that the video game maker has been bitching about for ages, saying totally nonsensical things, such as claiming that used video games defraud the industry and are bad for consumers.

Of course, the actual research suggests exactly the opposite. A robust secondary or “used” product market actually helps boost the original market in a variety of ways. First, it creates some product segmentation, allowing those who wouldn’t necessarily buy the product at the higher price to get into the market. Second, it actually makes the original game more valuable, because buyers know they can turn around and sell it and get some of their money back at a later date. Taking that option out of the market actually hurts the demand in the primary market.

But, an even bigger issue is just how much people absolutely hate annoyances like this. I wasn’t going to post the story originally, because it’s just a continuation of EA’s program. But people have been submitting it non-stop all morning — and every single one of them is expressing serious anger about this decision on EA’s part. Compare that to the widespread love and admiration from people buying the Humble Indie Bundle of video games, where the developers specifically decided to focus on rewarding customers, rather than punishing people for doing stuff they didn’t like. Now, obviously, EA is much bigger than a bunch of indie developers, and perhaps they feel they can get away with obnoxious practices because they’re so big, but it’s a strategy that is likely to backfire in the long run. Pissing off your biggest fans and customers is not a long-term strategy for success.

Filed Under: used games, video games
Companies: ea

Funny How A Little Public Pressure Makes Artist's Estate Back Down

from the sunlight-as-a-disinfectant dept

Last week, we wrote about the rather bizarre case of the estate of artist Roy Lichtenstein threatening a band for using an image for their album cover that was “appropriated” from the same original comic that Lichtenstein himself appropriated for one of his works. The whole thing was a bit confusing and demonstrated some of the more ridiculous parts of copyright law. Either way, all the talk about it — including a lot of people mocking the Lichtenstein estate’s position — seems to have convinced the estate to backdown. Either that or they spoke to a lawyer and realized that the claim would have been pretty weak, given that Lichtenstein himself also copied the image. Perhaps next time the Lichtenstein estate will think twice before sending out a questionable threat letter.

Filed Under: appropriation art, brittany pyle, copyright, david barsalau, elsinore, roy lichtenstein

Music Industry Lawyer Complains Both That Musicians Don't Get Paid… And When They Do

from the i'm-confused dept

There’s a music industry lawyer named Chris Castle who we’ve mentioned a few times on this site in the past. He’s the guy who used to (don’t know why he took it down) have a blurb on his website that referred to Creative Commons supporters as “self-serving shilling for the self-absorbed on the short con.” He once complained that next time he wrote a contract for licensing music to a website, there would be a clause that once the contract was over, the website wouldn’t be allowed to tell anyone why, because just having the music disappear and pissing off all the users is such a good solution. He’s also, on multiple occasions predicted that “free culture” was dead. Lately he’s been focused on running a bizarre and hilarious series of black-helicopter-type conspiracy theories about people pushing for copyright law that actually takes consumers into account. And I won’t even get into the nicknames he has for everyone. He’s a really fun read.

And, it should be noted, he’s no fan of the record labels. From what I can tell, he’s a lawyer who represents musicians and songwriters for the most part — and seems to think that the business models that got them paid back when he was a child should somehow be forced by law into never changing and staying that way forever. But since he’s so focused on getting musicians paid (and has been known to pat himself on the back when he wins lawsuits for certain musicians) you would think that reports showing new business models that work and help get musicians paid — while doing so in ways that allow musicians to rely less on the hated labels would be a good thing.

But, no, apparently not. The only acceptable way for a musician to get paid is via copyright, I guess. He recently put up a a rant about the evils of musicians getting money from corporations in the form of sponsorship or advertising.

Why is it bad? Well, something about the purity of music the old way. You know, where instead of taking money from corporations to make commercial music they… took money from corporations (record labels) to make commercial music. Oh wait…

We’ve seen this argument before. A few months ago, someone insisted that Jimi Hendrix never would have chatted with fans on MySpace. In Castle’s world, he sees something similar. Would Bob Dylan ever take sponsorship money, he wonders?

It doesn’t take a lot of prescience to see where this leads. Ask yourself this–is an advertising-driven model likely to produce the next Leonard Cohen or Bob Dylan? If presented with this reality, what would the next Bob Dylan do? Would he still be attracted to the music business or would he write it off as yet one more corporatization, more McMusic? Would popular music become like the jingles in Demolition Man? (Not to mention the cross-cultural issues.)

Really? First of all… last I checked, Dylan himself had no problem with an ad driven model:

But, more to the point, the myth that those musicians became successful in an anti-corporate way is a joke. Dylan signed to Columbia Records very early in his career, and they didn’t do it “for the music.” They signed him because they thought he’d make them money — and, famously, when his first album didn’t sell well, almost resulted in him being dropped from the label and caused trouble for John Hammond, who had signed him. Hammond, by the way, also signed Cohen to his first major label contract… also at Columbia. I’m sure in both cases, it was purely out of the kindness of his heart and the love of music… and the commercial prospects had nothing to do with it. Hell, wasn’t Columbia Records run as a charity back in the 60s?

What this comes down to, in the end, is the absolutely worst kind of revisionist history. It’s people who pretend that “back in the old days” the industry was about something other than money, and that anyone who talks about money now is creating a problem. And, then, at the same time, they’ll turn around and bitch about how musicians won’t make music any more because they won’t get paid. Contradiction much?

If Mr. Castle really wants to move away from musicians scared away from music because of “more corporatization, more McMusic,” you would think he would actually be a huge fan of many of the business models we’ve written about, because they allow those musicians to go direct to fans and make money in ways that get away from the corporatization — including the exact corporatization of music that Dylan and Cohen needed back in their day — but which musicians today no longer need if they want to avoid it.

Filed Under: bob dylan, business models, copyright, culture, leonard cohen

Can Appropriation Artist Claim Copyright Over Artwork Appropriated From The Same Original?

from the riddle-me-this dept

Here’s a fun one found via Boing Boing. It involves a band, named Elsinore, that is about to put out an album and has run into a rather bizarre copyright issue that highlights some of the insanity in today’s copyright law. For the cover of the album, they used a painting done in an art class by a friend of the band named Brittany Pyle. You can see it here:

If this looks somewhat familiar to you, it may be because you’ve seen one of famed artist Roy Lichtenstein’s paintings, called Kiss V. An image of that painting is here: Now, just before the album was to be released, the estate of Roy Lichtenstein sent Elsinore a note, claiming that their cover infringed on Lichtenstein’s copyright, and suggesting the estate was not at all happy about this. Somewhere along the line, the band went back and spoke to Pyle, the artist who did the painting they were using, and she explained that she had not actually copied the Lichtenstein painting at all, but as part of her art course about appropriation art, she was told to do a piece of appropriation artwork, and rather than appropriate Lichtenstein directly, she chose to appropriate from the same source material Lichtenstein had used. Lichtenstein was not particularly forthcoming about his own original sources, but a guy named David Barsalau has apparently spent years scouring old comic books to find the original images which Lichtenstein originally used, and has put them together in a project he’s called “Deconstructing Roy Lichtenstein.” His research turned up the following as the original source: If you look closely, it quickly becomes clear that Pyle did, in fact, use the original as her source. There are a few key points in the image that makes this clear. For example, in the original and in Pyle’s there’s a line directly above the man’s eyebrow. That’s not in the Lichtenstein version. The woman’s hair in the original and in Pyle’s is very similar (beyond just the color). In Lichtenstein’s it’s different (in his, the woman’s hair appears to be longer, whereas in the original and in Pyle’s you see the ends of her hair curling up). In the original and in Pyle’s you see a shadow beneath the point where the index finger and middle finger meet. That does not appear in Lichtenstein’s.

Based on all of this, many folks in the comments to both the Boing Boing post and the band’s post say that the Lichtenstein estate has no case at all. But… copyright law isn’t quite that simple (and there are a few complicating factors). First of all, there’s some question concerning the copyright on the original work. No one seems to know exactly where it’s from. The only version people point to is the one that Barsalau has highlighted, but he doesn’t seem to indicate the source as far as I can tell. And, to make matters worse, everywhere you find Barsalau’s work on Deconstructing Roy Lichtenstein he has copyright notices all over everything. No, I’m not kidding. I’m not sure how he can claim copyright on any of that, but for right now that issue is probably secondary, unless somehow he really does own the copyright on the original, and can make a claim against… well… both Pyle and Lichtenstein’s estate.

Leaving that aside, though, while common sense would suggest that the estate has absolutely no case, copyright covers the unique expression in an image, and one could potentially argue that Lichtenstein’s work did some unique things from the original image… including (potentially) the decision of how to crop the image. Since no one seems to actually show the full source image, we don’t know if the comic book image is cropped in the same way, or if that was, potentially, an artistic choice by Lichtenstein. If that’s the case, the estate could make the argument that the copyright they hold is on the cropping choice, and while Pyle may have copied the image itself from the original, she copied the crop from Lichtenstein. Would that actually stand up in court? One would hope not, but stranger things have happened.

That said, the whole thing really is fairly ridiculous no matter how you look at it. It’s ridiculously obnoxious for an appropriation artist, who relied on infringing on copyrights quite regularly to then turn around and claim that someone else infringed on his copyrights (or, in this case, to have his estate do the same thing). It’s particularly obnoxious to basically say it was okay for Lichtenstein to do it to others, but anyone doing it to Lichtenstein is not allowed. And I won’t even get into the ridiculousness of Barsalau then declaring copyright on his own efforts of matching Lichtenstein’s work to the originals. Either way, it seems pretty silly that the band may now need to go find themselves a lawyer just to use a piece of artwork for their album cover.

Filed Under: appropriation art, brittany pyle, copyright, david barsalau, elsinore, roy lichtenstein