The Fanfic Mind

Ah, another fascinating view into the bizarre workings of the fanfic mind from a writer/reader of Potter porn:

To be perfectly clear: I don't give two shits about minors having access to sexually explicit material on the internet. This may well be a byproduct of my own hypersexualized childhood (I started reading romance novels at age 8 and my barbies were doing some very nasty kinds of nasty shortly thereafter), but I don't buy that reading about sex or seeing images of sex is going to warp kids' fragile little minds. Which is why "Won't someone please think of the children?" is one of my chief sarcastic lines. "The children" don't need half the protection we insist on giving them, and I wish prudes would just admit that it's not "the children" they're safeguarding when they're arguing for censorship -- it's their own delicate sensibilities.

But anyway. I do give several large, steamy, well-textured shits about respecting artists and creators. That was part of my oh-so-eloquent and not-wanky-at-all OUTRAGE over fanfic plagiarism.

[...]Even though I can't point to anything Morally Wrong about copyright-infringing fanfic, even though I'm a pomo slut, even though I would cry if there was never another Blackcest dub-con femslash fic waiting for me on my flist, part of me still wants to concede to artists the right to disallow derivative works that they don't like. It's their sandbox, and all the justifications about "just playing with their toys" don't change that. And so: guilt. Not enough guilt to keep me from reading and (if I ever get my lazy ass past the outlining stage) writing adult-rated HP fanfic. But enough to make me feel dirty. Not in the good hatesex-on-the-Hogwarts-Express kinda way, either.

Let me get this straight -- exposing kids  to kiddie porn is okay, copyright infringement is okay, but she is OUTRAGED by fanfic plagiarism.  Uh-huh. She feels a slight tinge of guilt about violating an author's wishes regarding their works, but not enough to actually stop writing or reading the crap. But fanfic plagiarism -- that's INTOLERABLE (she even wrote this howler:  "In short, fanfic matters, so plagiarism in fanfic matters.")  Interesting set of principles she has.

Comments

[Mark Terry]

Seriously warped.

[Chadwick H. Saxelid]

Kathleen David, wife of Peter, had this to say about it at her blog, No Strings Attached:

"Apparently JK Rowling's lawyers are sniffing around the internet and warning those who do Potter Porn to either knock it off or hide it. The defense that really burned my goat was the one that said that all their slash Potter Porn happened after the characters were of the age of adulthood according to Rowling's Wizard world which is 16 I believe. The owner of the characters has asked you not to do something or at least not in public forums and you come back with why it shouldn't matter? Here's a clue by four upside the head which might knock a clue lose. When I was reading fanfic I can tell you all the Doctor Who stuff that was even suggestive was put in a private area of the internet with a couple of passwords on it to keep the Beeb from shutting it down. To the list owners who allow Potter Porn, lock it down and get it out of sight or you might find yourself on the wrong end of a cease and desist order. Remember she is published in just about every country on Earth and therefore has access to lawyers just about anywhere. Fanfic is only alive because of the good graces of the owners. Don't make them regret it."

Seems like sound advice to me.

[Peter L. Winkler]

Yawn. This is all a typical internet tempest in a thimble. I'v never read any fanfic, sexually explicit or not. I wouldn't even know where to look for it. I've never been bothered by a banner ad or popup or seen a Google ad for any.

No one in their right mind would mistake fanfiction from the author's actual products. You can't walk into a bookstore and find a copycat fanfic Harry Potter knockoff shelved alongside the real novel. If any fanficcers are making significant money from an author's copyrighted work or the author can show actual damages or lost income, let them sue.

Otherwise, it's not worth bothering with.

[Karmyn]

Seriously, Lee, for the sanity of the whole world, stop. Nobody cares. You're a laughing stock.
I almost bought one of your books one time before I remembered what an asshat you are.
BTW, you can't really copyright a character.
Just Shut Up Please!

[Lara Neil]

A question on ethics, Mr Goldberg:

You yourself are clearly of the opinion that this girl's fanfiction is not to be condoned, and yet you, whose blog is popular, and within a wider sphere than just those who are familiar with fanfiction, link directly to the blog where she houses them, thereby making it more widely accessible both coming directly from your blog, and because of the added "Google juice" of having linked her.

I have to wonder if *you* are really inclined to "think of the children", Mr Goldberg, or whether it's really the same old vendetta against fanfiction in all forms as before which fuels this particular post.

[Tommy]

Lee: You're right to keep us up to date on the illegal activities of the fanficcers - particularly those whose sexually explicit work can be accessed by children.

Karmyn: I'm sure Lee really misses you as a reader. And you most certainly can copyright a character - by creating that character and then writing about him or her. End of story.

Peter: You're right - fanfic is easily distinguishable from the real author's work. However, an 11 year old Harry Potter fan searching online for information about her favourite character may stumble across this stuff, and that's problem - particularly with the 'don's care' attitude of the fanficcer in Lee's original post.

Lara: it's a fair point: does writing to warn of sexually explicit fan fiction result in upping its popularity. However, on balance, I'd rather someone tell me which sites to add to my son's restricted sites list than leave it to chance.

[lost_erizo from LiveJournal]

Tommy wrote:
"However, an 11 year old Harry Potter fan searching online for information about her favourite character may stumble across this stuff"

I find the idea that an 11 year old Harry Potter fan would be wandering around on the internet without adult supervision a lot more terrifying than the publication of explicit Snarry fic. There are things and people on-line that are a lot more dangerous than fanfic. I wouldn't assume _any_ internet site was safe for a child that age without checking it out myself first.

[Karmyn]

Then how is Lee writing about characters he didn't create? Or Max Allan Collins? Or Kevin J. Anderson?

[Soni Pitts]

Karmyn -
"Then how is Lee writing about characters he didn't create?"

Because Lee is getting paid to do so *by the folks who own the copyrights*. With their express contract-bound permission. Period.

[P M Rommel]

I repeat my question of the previous debate:

Lee, or anyone else inclined to answer, questions of artistic merit and copyright infringement specifically set aside (these are not points of ethics) why is "Wide Sargasso Sea" ethically acceptable and fanfiction not?

[Chadwick H. Saxelid]

Two words: Public Domain. End of discussion.

[Richard S. Wheeler]

It behooves people entering this debate to know what copyright law does and what it protects. Some of the comments above make me wince. The government's copyright office provides clear and lucid explanations. Go to http://www.copyright.gov/

What about "The Wind Done Gone," which told "Gone With The Wind" from the point of view of the slaves? The Mitchell estate brough the matter to court - but as paraody, "Wind Done Gone" was legally okayed.

[P M Rommel]

Chadwick, I said, "copyright infringement specifically set aside", and therefore your answer isn't an answer to the question.

[lost_erizo from LiveJournal]

“Two words: Public Domain. End of discussion.”

That’s not really an answer, Mr Cavenaugh. Why does the public domain exist? If copyright law is all about the author’s right to control the use of their work, then no one should be able to use it once the author has died. Jean Rhys certainly didn’t get Charlotte Brontë’s permission to write The Wide Sargasso Sea. You might argue that Brontë is dead and has no rights, but then Margaret Mitchell has been dead for fifty-seven years and her estate still tries to keep iron control over the use of Gone with the Wind. They didn’t have anything to do with it’s writing-why do they get a say?

They get a say because society has decided that the ability to leave an estate to your heirs is as much of an incentive as the ability to profit from the work yourself. At the risk of repeating myself (yet again!) copyright has little to do with the author’s right to control their ideas or preserving respect for the author’s characters, and everything to do with the author’s right to profit. Money, people, not “the sanctity of the creative process.” (Mr. Cavenaugh, 8-15-06, comment on "Is Fanfic Legal?")

The Congress shall have power …_To_promote_the_progress_of_science_and_useful_arts_, by securing _for_limited_times_ to authors and inventors the exclusive right to their respective writings and discoveries.

United States Constitution, Article I, Section 8.
AKA The Intellectual Property clause.
(Emphasis mine)

[Lara Neil]

Mr Saxelid, you do nobody any favours by responding with triumphant, one line, non-sequitors. "Public Domain" might suffice as an answer were we doing a crossword puzzle, but the question P.M. Rommel posed very cafrefully makes it clear that that is not what is being asked of you.

The question was one of *ethics*. Perhaps for you ethics and legality are synonymous, and "because it's the law" is your sole moral decider, but most thinking people would consider that the ethics behind the wish to uphold a law is a seperate and valid question.

To reiterate what P M Rommel already very clearly asked, *disregarding* matters of legality and personal artistic taste (because these areas can be dealt with seperately and will only obfuscate the point and derail the thread here) we would like to know about the reasoning behind the *ethical* and *moral* outrage at fanfiction so often expressed in this blog by both Mr Goldberg and those who agree with him, and how that differs in the case of works in a similar vein which are not viewed with outrage.

[Chadwick H. Saxelid]

But that IS the answer. There is a rather sizable difference between the use of copyrighted material in the public circle and the use of material that is in the public domain. Ignoring that difference (or refusing to acknowledge it) doesn't make it go away. It's the ten ton elephant in the room.

I also think that there are clear differences between Patische, Homage, and Fanfic. Yet many use Patisches and Homages as an apologetic tool for Fanfic. To me it is comparing apples and oranges. One does not make the other.

Just my opinion on the matter.

[Peter L. Winkler]

As to the risk that an 11-year-old searching for infon Harry Potter may stumble across sexally explicit fanfic, my answer is: big deal.

I find it paradoxical that as we have progressively eliminated the actual physical threats to children, such as dangerous childhood diseases and reduced the risk of other bodily harm with adoption of bicycle helmets, car seats, etc.

We have become obsessed with exaggerating the illusory and unproven threats to children of an occasional exposure to erotic material. Reading someone's sexy fanfic about Harry Potter isn't suddenly going to throw a switch in a child's brain that sends them on the path to becoming the next Jeffrey Dahmer or Aileen Wuornos. It's an hysterical, unwarranted fear that is perpetuated by the media and also by the culture warriors on the right.

[Chadwick H. Saxelid]

While it might be hysterical, unwarranted, when someone asks you to close the curtain when doing the nasty, closing it is the polite thing to do.

On another note, while tooling around town on errands (yes, I do have a life :D) I was mulling over this "moral" and "ethic" arguement versus the "legal" one. So I looked up the definitions.

Moral: Conforming to stand of right behavior.

Ethic(al): Conforming to accepted standards.

Then there is

Legal: Conforming to or permitted by law.

Now, this is how I see the arguement made by those who seek to remove the legal issue.

"Taking public safety out of the issue, why can't I drive my car as fast I as want, when I want, and where I want?"

To me, the standard by which I measure/argue the central issue as been removed. It also, from my perspective, removes the ground upon which the issue can be argued. From my viewpoint the arguement now is just twirling in the air, never to be resolved.

So that's where I'm coming from. Others are free to disagree, which is the beauty of living in a relatively free country.

Peace.

[John Donald Carlucci]

"Then how is Lee writing about characters he didn't create? Or Max Allan Collins? Or Kevin J. Anderson?"
Because they are hired to do so idiot. I w on't be so rude normally, but since you actually asked that question out loud it seemed right.

The character of Buffy reaches out and touches many viewers, but Joss created her. Joss knows her and knows where she is going. When Amber Benson refused to come back in the final season because she felt that would hurt her fans - she was wrong. Whedon was going to use her as an evil element and then bring her back to be with Willow. He had a plan for that character and her influence was missed in the overall story. An actor owns their performance, but they don't completely know the character as the writer does. To claim otherwise is BS and I don't care what an actor says. They do contribute greatly to a character and they do develope a character, but a strong writer/creator knows that character in no way anyone else can. Too many people dismiss the writer and underestimate that because the pretty pictures the director shoots or the neato lighting effects. The words are the skeleton that all else hangs on.

Which comes to my point - fan-fics on a whole have a sense of entitlement or ownership of the characters that they don't deserve and that was never theirs to claim. Harry Potter is Rowlings and she has made it clear they need to stop. She will write the characters the way she plans and go where she will.

Hugh Laurie said he had blind trust in the creators where his character will go. The playgrounds we create are our playgrounds. Build your own if you are so damn creative. Don't dilute mine.

On the other hand, spec monkys are fan-fics who have the approval of our field to do what we do. The difference is that we are seeking work. The vast majority of ALL of the fields do not approve of fan-fics and this can not get you work.

It isn't fair to me after working my ass off to beat the odds and get my book published/show on the air and to have my characters co-opted is just plain wrong - ignoring the laws. I do the heavy lifting and they take my rewards - pfheh.

JDC

[Nick Mamatas]

I'm no great lover of fanfic, but if Chadwick thinks dictionary defintions will allow him to conflate the moral and ethical on the one hand, and the legal on the other, then we can safely assume that Chadwick would be in favor of segregation if that continued to be the law of the land, would be in favor of slavery if that continued to be the law of the land, etc.

Indeed, were a law passed that compelled people with the rather silly given name of "Chadwick" to report to the town square for a stoning, then we can be sure that at least one Chadwick would voluntarily show up for his public execution.

[P M Rommel]

Chadwick writes: "Taking public safety out of the issue, why can't I drive my car as fast I as want, when I want, and where I want?"

I'm not sure this argument works but I'm pretty sure it's still not a reply to the question I posed.

I don't know about in the States, but in the UK if you're lucky enough to own (or have access to) a large wide strip of private land on which to drive your car (such as a deserted airstrip) my understanding is that you can drive the vehicle as fast as you like, and in the middle of the night if you so choose, provided you remain on that land. What you can't do is drive it like that on a public highway.

Fanfic authors know that they cannot profit from their work. The right to profit from a work is entirely that of the original author and anyone to whom they have sold subsequent rights (like the publisher or those with film rights), and I've never seen a fanfic author claim otherwise.

John Carlucci wrote: "fan-fics on a whole have a sense of entitlement or ownership of the characters that they don't deserve and that was never theirs to claim."

Again, I've never seen a fanfic author claim that they are entitled to the work - every piece I've seen has a disclaimer which specifically states that they do not.

John Carlucci again: "Harry Potter is Rowlings and she has made it clear they need to stop. She will write the characters the way she plans and go where she will."

To be fair, Rowling through her solicitor, has made it clear that she does not care to have adult fanfiction where children can find it easily and would prefer that it was not published at all. She has also made it clear, through the same solicitors' letter, that she does not mind fanfiction which is not adult.

Nobody, in publishing fanfiction is in any way claiming that their work is somehow more valid than hers, or even as valid as hers, and nobody is or can suggest to her how she should proceed in any way that might have any effect on her at all. Or, not that I can see.

John Carlucci: "Build your own if you are so damn creative. Don't dilute mine." " I do the heavy lifting and they take my rewards"

I'm not following this argument - can you explain how fanfiction 'dilutes' the source text? Surely the source text remains unchanged however much fanfiction is written about it? And given that one cannot sell fanfiction, in what way are fanfiction writers taking 'rewards' which are due to the original writer when the original writer is credited on every piece?

[Chadwick H. Saxelid]

"I'm not sure this argument works but I'm pretty sure it's still not a reply to the question I posed."

I think it is. The private road comparison seems to be a poor one to me, because the Internet/Information Super Highway isn't a private road. Currently there is the illusion that it is private, but it is a very public forum. If you wish the private road comparison to work, then Fanfic authors can write all they want in their private arena. Which means not posting it in the public arena of the Internet. And yes, I am fairly certain that certain areas of the US have private roads.

Once again, it's the private versus public issue. There is material in the public domain, free and open to everyone's use, and then there is private property in the the public square, which isn't. Two very different issues.

Be well.

Mr. Sexalid,
“Ethic(al): Conforming to accepted standards.”

Actually, this should be:
Ethic(al): (conforming to ) a set of moral standards, esp. ones relating to or affirming a specified group, field, or form of conduct. (Oxford American Dictionaries; parenthetical added by me)

I’m not just restating this to prove I have a different dictionary than you - the word “accepted” actually changes the definition. Whether those standards are “accepted” depends on the person or group you are referring to. For example, I don’t personally accept the standards of conduct espoused by the Branch Davidians. That doesn’t mean that they didn’t have standards-just that they were ones that most people find weird, offensive and generally unacceptable.

You have argued (quoted below) that you can’t remove the law from the argument, and yet the only standards you’ve specified in relationship to copyright law, such as an author’s “ownership” of her work, “the sanctity of the creative process” and your personal aesthetic standards, have no basis in US law, and would seem therefore to be irrelevant.

Now, this is how I see the arguement made by those who seek to remove the legal issue.
"Taking public safety out of the issue, why can't I drive my car as fast I as want, when I want, and where I want?"

I realize you are not the first to use it, but your analogy is specious. There is no risk to public safety involved in copyright infringement, and I personally find the analogy between public safety and personal or corporate profits more than a little unconvincing (even offensive) if for no other reason that while the risk to public safety cannot be separated from speeding vehicles, profit can be separated from writing. The risk that an author may possibly receive less profit from their work as a result of fanfic, though possibly real, can’t be weighed against someone else’s actual life.

“To me, the standard by which I measure/argue the central issue as been removed. It also, from my perspective, removes the ground upon which the issue can be argued. From my viewpoint the arguement now is just twirling in the air, never to be resolved.”

The only thing you’ve been asked to do is to evaluate a code of behavior the law is based on without reference to the specific present day formulation of the law. You seem to be saying that the law exists because it is the law, and therefore we should obey it. You refuse to defend or argue from the basis of that law (protecting author’s profits), and as a result have no basis from which to argue with those who say that the law itself is wrong.

Personally, I think the current law is ridiculously over-protective of corporate rights. I don’t understand how anyone can argue that copyright which extends 70 years beyond the life of the author is protecting the author’s rights. Not with a straight face anyway.

[lost_erizo from LiveJournal]

Appologies to everyone-the above unsigned comment was me posting without entering my info.

[Chadwick H. Saxelid]

My point, and poorly argued as it might be to you, is that there is a difference between public and private. There is public domain and there is private property. Whether the law is right or not is meaningless. My point was that there needs to be a certain standard upon which to make a moral or ethical judgement. If the legal copyright issue is removed, what is left to measure morals or ethics?

Nothing, as far as I can tell. P.M.'s question then becomes a rhetorical one.

As far as the road laws go. When you are out in public, there are methods of behavior that are regulated by law and the social morals of the society at large. You may not agree with the Branch-Davidians, but if you were at their compound then you would be expected to respect their code of conduct while there. If not, then you would be asked to leave. Ditto a restaurant, this blog, or anywhere else in the public arena.

As far as the permission thing goes. I'll just go back to my opinion that, if you give someone an inch, then they will take a mile. People, with their owning/gathering nature, will eventually abuse the generosity of those willing to share and a few bad apples with no doubt spoil it for all. I might be a libertarian, but I have a very dim view of humankind, obviously. :D

I'll just agree to disagree and move on, again. I enjoyed the debate and learned more about the opposing point of view, which is appreciated. But I remain unconvinced. I also think that the Fanfic discussion is one akin to that of two people arguing which is correct: theism or atheism, or evolution or creationism. Arguments that will be ongoing long after this blog, the people who contribute to it, and even the Fanfic in question have all gone the way of all flesh.

Thanks for keeping it civil, but I think I'll just go back the lurking on this issue.

Peace.

[lost_erizo from LiveJournal]

Mr. Carlucci,
“Which comes to my point - fan-fics on a whole have a sense of entitlement or ownership of the characters that they don't deserve and that was never theirs to claim. Harry Potter is Rowlings and she has made it clear they need to stop.”

Fanfic writers don’t own Harry Potter but, and I hate to disillusion you, in the United States neither does Ms. Rowling. She can’t own an idea, and a character is an idea. What she owns is the exclusive right to publish and profit from the books she wrote and any derivative works based on them. In the United States that right is granted to her by Congress and hypothetically they could limit it however they wanted to – say to a maximum of fourteen years after the book’s initial publication on the condition that she registered it with the copyright office (which were the original limits placed on copyright).

Or if you prefer literary theory over law - the text has an existence independent of the author or the author’s intentions. An author/creator’s intentions are irrelevant to my interpretation or experience of the text.

“It isn't fair to me after working my ass off to beat the odds and get my book published/show on the air and to have my characters co-opted is just plain wrong - ignoring the laws. I do the heavy lifting and they take my rewards - pfheh.”

I don’t know what rewards you think they are taking from you. They aren’t trying to profit from what they do, and the law wouldn’t allow it if they did. They aren’t preventing you from profiting, and the law provides a number of remedies if you think that they are. If someone writes something based on your work, it doesn’t change what you wrote one iota.

[lost_erizo from LiveJournal]

Mr. Saxelid,
Since you've decided to leave the argument, I won't respond to what you said in your last post, but thank you for providing such a lively debate-it has certainly helped me to refine my own thoughts on the matter.

Regards

[Karmyn]

I have seen several professional novels that include incorrect information. The X-Files novel "Skin" comes to mind. There were several things incorrect in that novel and fans complained loudly. I've seen professional novels that were very poorly written and very out of character. Again, fans complained. If a fanfic writer does these things, I'm not out anything except a little time. When it happens in a professional novel, I'm out money. I don't have much money to spend on anything, much less books and when I spend up to 20 dollars or more on a novel about a favorite TV show I expect the writer to get the canon and characters right.

[Lee Goldberg]

PM,

I have answered your question a hundred times elsewhere on this blog (as I have the difference between licensed tie-ins and fanfic). Rather than do it again, from all the way over here in Germany, I've lifted this comment from an anonymous poster (not me, by the way, I always sign my posts) elsewhere on the blog, which pretty much sums up most of my views on your oft-repeated question:

"One difference is that with most derivative work, copywrite has been lost (this isn't true for all, just some -- which is why the woman who wrote The Wind Done Gone was sued by Margaret Mitchell's estate, but won on the basis of satire and parody, as I recall, or something very similar) and so it is free game. Derivative work also is typically for more respectful of the source material -- this isn't a question of writing talent, of which in fan fiction I see very little (perhaps because writers with real talent prefer not to write Babylon 5 fan fiction) and write more in the tradition of the work than in the tradition they wish of the work. The Great Gatsby may well be Great Expectations fan fiction, as might Empire Falls by Richard Russo. Shoot, John Iriving admits that A Prayer For Owen Meany is directly inspired by Robertson Davies' Fifth Business and Richard Ford says that The Sportswriter was inspired by Walker Piercy's The Moviegoer. The difference is that each writer created their worlds, fresh and new, and didn't do it by aping the style of the writer who inspired them or to whom the work is derived from."

I also agree with what Chadwick has posted here on the subject.

[P M Rommel]

Lee,

I'm sorry to disagree, but I don't think you have answered the question I posed. The quote you posted answered the question where the issue of copyright has expired - as I understand it, and if you agree with the poster, you accept that where copyright has expired fanwriters (and others) can have at it.

That issue was quite deliberately not posed in my question, which was (to rephrase), why is it ethically acceptable to write fanfiction on something on which the copyright has expired, but not where it has not.

It's not a legal question, I think we've hammered out the legal issue and I think you may well be right. If a fanfiction author was taken to court by the copyright holder for copyright infringement, the chances are they would lose. FWIW, I may well be unusual among fanfiction authors on this point...but as the question has never been tested in court, it's just an opinion, and I don't let it keep me awake nights or stop me writing fanfic.

For an example, let's take Rudyard Kipling. If my maths is correct, Kipling's work entered the public sphere on January 19 2006 (he died on January 18 1936). What ethical point was different on 00:01 on 01/19/2006 compared with 23:59 on 01/18/2006? I reiterate, this is an ethical, not a legal question.

[Richard]

Fan fiction "authors" should obviously use their energy to create original characters, instead of surfing in the wake of copyright infringement. But maybe it's a form of mental instability or chemical imbalance--an obsessive/compulsive disorder that should be treated with those medications that Tom Cruise doesn't want them to know about. Or maybe their mothers didn't breast feed them long enough. Whatever, they're sad, sick little copycats.

[P M Rommel]

Sigh.

Richard, before you next post, I've some advice from therebelution.com:

"Nothing more quickly degenerates a discussion than when people start attacking those making the arguments rather than refuting the arguments themselves. [...] The character, circumstances, or political ideology of the person has nothing to do with the truth or falsity of the proposition being defended."

[Richard]

Rommel,
You're kind of stupid, huh?

[Nothosonomia]

lost erizo writes: "Fanfic writers don’t own Harry Potter but, and I hate to disillusion you, in the United States neither does Ms. Rowling. She can’t own an idea, and a character is an idea."

Oh please. So an "idea", like a way to build a light bulb, can't be owned? What about an "idea" for a piece of music, like "Stairway to Heaven"? Can't own that? And a character? So no one "owns" Superman, Monk, or Bugs Bunny?

If I paint a picture, I OWN it, it's mine. If I write a song, I OWN it. If I write a story, I own that, too, and if I write a character, I own him. He is not yours just because you like him; you didn't invent him, you didn't think of him first. I made him. If I want to sell him, use him again, change him around, kill him off, turn him into a baby-eating homosexual, or give him away when I die, I can do that, because I own him. You cannot do anything with him. Make your own damn character. If you want, make your own powerful hero, twitchy detective, or cartoon bunny, but you cannot have someone else's, because they OWN it, until they sell it, give it up, or it otherwise legally passes from their ownership.

Characters do not exist until they are created. They are not some undiscovered autonomous souls waiting to be revealed to the world. They are built, line by line, just as a car is built. When I build a car, you cannot say "Well, now that you've built it, and I've seen it, I like it, so it's mine too now. You can't own it; I have as much right to it as you do." Copyright laws aside, it's just common sense; if I create it, I own it. You have no 'right' to it; you can try and steal it from me, but that's what it would be, STEALING PROPERTY.

What kind of incentive does anyone have to come up with any ideas, characters, anything, if the minute they share them, they become public property for everyone to claim as theirs? Fanfic which acknowledges the author and knows its place is harmless play in comparison to this attitude that fans and anyone else have as much "ownership" of the character as the creator does; that the CREATOR does not OWN his creation.

[Nothosonomia]

And, further, if I OWN a character, and I want to hire some guy to write a bunch of knock-off novels or TV scripts about him, then I can do that too. And then it's not fanfic, it's subcontracting.

[Richard S. Wheeler]

Wikipedia has a lucid discussion of copyright law. Here is an example it provides about how a copyrighted character is protected:

For example, the copyright which subsists in relation to a Mickey Mouse cartoon prohibits unauthorized parties from distributing copies of the cartoon or creating derivative works which copy or mimic Disney's particular anthropomorphic mouse, but does not prohibit the creation of artistic works about anthropomorphic mice in general, so long as they are sufficiently different to not be imitative of the original. Other laws may impose legal restrictions on reproduction or use where copyright does not - such as trademarks and patents.

There are excellent sources for laypeople. Go to Google and start looking.

[Chadwick H. Saxelid]

Me again, one last time. (I promise. ;D)

Okay, an ethical question:

Joe Dude walks home from work each day. He finds that if he cuts through a yard he shaves five or so minutes off his walk, so he takes to cutting through this yard. He is never hassled by the owner, in fact it appears that the owner knows of Joe's walks, but never engages him in a conversation.

One day Joe walks home with a friend. When he starts to cut through the yard, his friend refuses to follow, telling Joe that he doesn't feel comfortable intruding. Joe tells his friend that it's okay, that the owner doesn't seem to mind. Joe's friend states that he would still rather remain on the public sidewalk.

Now, to the future. The owner of the house has died and the property is given over the public and turned into a park. Joe has his friend over for dinner and they both walk through the park to Joe's house.

Now let's remove all the legal issues, such as public property vs private, right of passage, etc. Of the two, who behaved ethically on both trips? Joe, or his friend? Both? Neither?

I am of the opinion that Joe's friend did and Joe did not.

[Vick]

Couldn't help noticing something on the list of Hugo Award winners that just came out: categories for best Fanzine, Fan Writer, and Fan Artist.

http://www.locusmag.com/2006/News/08_HugoCampbellWinners.html

You know, this discussion seems pointless to me. Fanfic writers are hobbyists, and fanfic writing is done for fun and practice. They don't intend for their works to ever be published professionally (aside from some of the loonies). There's no market for the stuff that gets written anyway - do you think people would actually *pay* to read amateur erotica and wish-fulfillment fantasies?

As long as the fans are not passing their stuff off as official product, and have all the disclaimers and precautions in place, it's not worth the effort to get huffy about it.

[lost_erizo from LiveJournal]

Nothosonomia wrote:
"Oh please. So an "idea", like a way to build a light bulb, can't be owned? What about an "idea" for a piece of music, like "Stairway to Heaven"? Can't own that? And a character? So no one "owns" Superman, Monk, or Bugs Bunny?"

Actually, no they don’t – various people own the right to reproduce, license, profit from and control the use of that idea or character for a limited amount of time, but not the ideas themselves. In other words, they own the copyright (or patent). US law is actually quite clear on that point.

“If I paint a picture, I OWN it, it's mine. If I write a song, I OWN it. If I write a story, I own that, too, and if I write a character, I own him. … You cannot do anything with him. Make your own damn character.”

A painting is a physical object – you can own the object itself. But when it comes to reproductions of that painting, you can only own the copyright. But a character is not real property. If you write about a character, you certainly own the manuscript, but you only own the copyright on that character. I can do whatever the hell I want with him. Seriously - try and stop me. The law only controls whether I’m allowed to publish, disseminate or profit from what I wrote. You can’t control what I do with it because you can’t control an idea. Eventually it becomes part of the public domain and anyone who wants to can do whatever they want with him, including earn a profit. That used to happen after fourteen years from publication, but now it’s been extended to 70 years beyond the death of the author. Both time limits are arbitrarily set by society. And their purpose is to allow people to profit from their work so that they’ll be encouraged to produce more.

That places work which doesn’t profit, and doesn’t affect your ability to profit in a unique ethical position. The law doesn’t recognize the difference between for profit and non-profit, but I think you’ll find a lot of people who think that the law is wrong on that point and should be changed. Especially now that Congress has removed the registration and labeling requirements of copyright and it’s unclear if it’s possible to cede one’s copyright to the public domain even if one wants to.

“if I create it, I own it. You have no 'right' to it; you can try and steal it from me, but that's what it would be, STEALING PROPERTY.”

Err, no. I’m sorry, but you don’t. If you decide not to share it with anyone and keep it inside your head, then yes. But once you publish a work it has a life of it’s own. And if a piece of fanfic doesn’t profit from your work or affect your ability to profit from it or create more, I really don’t see why it should affect you at all. See what I wrote above (and in the other threads) for the difference between Intellectual Property and Real Property. They really aren’t the same thing either philosophically or under the law.

“What kind of incentive does anyone have to come up with any ideas, characters, anything, if the minute they share them, they become public property for everyone to claim as theirs? Fanfic which acknowledges the author and knows its place is harmless play in comparison to this attitude that fans and anyone else have as much "ownership" of the character as the creator does; that the CREATOR does not OWN his creation.”

Strangely enough, you are the first person on the anti-fanfic side of this argument to admit that copyright exists as an economic incentive. But an incentive is not ownership. I don’t know what fans you’ve run across that think that they own the characters – certainly not me (I’m not a fan writer in any case) and every piece of fanfic that I’ve read has an explicit statement attached that the characters and universe are the creation of the original author. I just think that this places fanfic in a unique ethical position because of its non-profit status.

[lost_erizo from LiveJournal]

Mr. Saxelid,

I don’t think your analogy (trespassing) works because a piece of land is real property. It has a physical existence and can’t be reproduced. If I walk across it I am affecting it – I’m treading on the grass, leaving footprints on the stones. Even if I’m careful not to cause damage, I’m leaving my mark because I was physically there.

If I use one of your characters in a piece of fiction, it doesn’t change anything that you wrote. The text you created, the thoughts you put on paper, are unchanged. However, if I profit from what I write before your work enters the public domain, then I’ve taken profits that the law says belong to you, and that is stealing. But it’s the profit that’s yours, not the ideas.

But in your example, you’re right, Joe’s friend acted more properly. I just don’t think it’s relevant to copyright.

Are you sure you’re dropping out? Because I’d be happy to respond to what you wrote before when you said it was your last post :-)

Here's a really smart comment someone left on the blog Lee quoted from:

"The level of hypocricy I see in the arguments over this issue is seriously disgusting. The argument you should ask permission of fans but not pros because Jane Fanwriter is more likely to respond to your letter of inquiry than is Sally Prowriter is just arm waving and smoke blowing IMO. The moral issue is the same, whether or not Sally answers her e-mail regularly. And does that mean that if you want to write a sequel to a fic written five years ago, something sitting in an archive, whose writer isn't even in fandom anymore and hasn't checked her fanwriter-pseudonym hotmail account in years, I can, just because she isn't checking that e-mail address anymore and I don't have her current one? Heck, in a case like that you're more likely to get a personal answer from Rowling than you are from that fan writer -- and what does that prove?

Of the folks saying that "we" are fans and "they" are pros, and we should be polite to each other because we're all the same group but it's OK to be rude to the pros because they're not "us," I seriously wonder if they make such distinctions between other groups they are and aren't members of. Is it OK to be polite to their own racial group but rude to others? Is it OK to be polite to people of their own sexual orientation but rude to others? And if they say no, then why is there any difference? The idea that we should all be forced to be polite and nice to "us" while we're all free to be rude and nasty to "them" is just pernicious and I can't believe people are actually using that as an argument. :("

[Nothosonomia]

All right, sure, I can't stop you from writing your Snape/Harry slash, simply because I can't be everywhere, reading your notebooks and checking your hard disk. Although if you "publish" it anywhere, even on your own webpage, I can make you take it down, whether you're making a profit on it or not. That's part of the 'disseminate and publish' thing you mention. I CAN stop you in that regard, the only problem is it's so difficult to enforce. Doesn't mean it's not true. And yes, given that I don't actually have a physical living boy called Harry Potter to hold and protect, the "copyright" is the best we can do. It's still ownership. It's really all semantics. And, as you illustrate, it's under attack.

But, face it, you will never be able to say "Harry Potter is mine; I own him as much as Rowling does" and be anything other than a delusional fanboy who can't create his own characters. The kind of fan I've met who says things like "Rowling messed up the canon when she made Harry love Ginny instead of Hermione!" and "Everyone knows the writers of Monk don't really care about the show, it's us FANS that matter, and because we care, we have more right to write Monk stories than some hack-for-hire!"

Everyone knows a fanficcer did NOTHING to have any kind of claim on the character; no work, no thought, nothing other than reading someone else's work and boldly and blatantly STEALING their ideas wholesale. The more thoroughly stolen, the more "canon" it is, isn't that right? I can Xerox the Mona Lisa, too, and it doesn't make me an artist, and it doesn't make me Leonardo's equal, even if I use my own crayons to color it in. And if I ran around showing it to people and saying, "This is mine, all mine, I own it and what it is too" then I'd expect the same thing fanficcers get, which is mockery.

I actually don't care about fanfic that knows its place; that credits its sources and knows it's ripping people off and admits it, makes no profit, and the author has agreed to turn a tolerant eye on the people playing with the characters that she OWNS. It's like kids pretending to be Superman; fine, play your little games; it would be petty to tell you "no".

It's when people start saying "Well, the fans are the ones who REALLY own Harry because they're the ones who love him best and they should get to decide what is done with him; there should be no restrictions on us at all, and Harry Potter should go into the public domain because I want to write about him rather than make my own characters" and "We fans are better at writing Monk than Monk writers are!" that I start to see red... from anger, and from fear.

Especially when there are people like yourself implying that copyright law is wrong, and should be changed, so that authors lose even what tenuous hold they have on their livelihood, their hard work, to let it be sucked away by parasitic leeches who are too stupid or too lazy to do their own homework.

For every good working author there are thousands of screaming, starving fans, many of whom are even now testing the laws, fighting them, overwhelming them with sheer mass, in order to steal their author's creations and livelihoods because, "Something so good should belong to everyone, not just the mean greedy author!" They are rabid, these fans, and they outnumber us, and they are getting bolder every day.

And the sad thing is, if they'd just sit down and do the work and MAKE THEIR OWN CHARACTERS, there would be so many more good stories for everyone to enjoy, and we'd be a much richer, happier culture all around.

[Lee Goldberg]

Nothosonomia,

That was brilliant. I wish I'd said it myself.

Lee

[E. M. Pink]

Apart from the intelligent discourse between lost_erizo and Saxelid, I just seem to be reading the same arguments over and over again: "Fanfic writers are scum because they STEAL", "Fanfic writers are PROFITING from the result of my own blood, sweat and tears", "people who write fanfic are unoriginal and sad, and should get a life"...

I understand why looking at the discussion on the referenced journal about plagiarism of fanfic is like looking at another world - though I'm in the same fandom, it feels almost the same way. But could you stop tarring everyone in a fandom with the same brush? The parts are not representative of the whole, for crying out loud - if JKR were to say that she couldn't stand fanfic anymore, there's a good portion of people who would take down their stuff. I still don't understand why it's such a hot button issue that a bunch of people are writing derivative works of something someone else owns - yes, it can hurt, having your ideas and characters led in directions you definitely wouldn't have chosen, but isn't that more of an emotional thing than a legal thing? If this argument is truly about the legal ramifications of such a thing, then the original authors should technically have less of a problem with it - for the most part, no one is selling fanfic or passing themselves off as the original author, and except for the occasional weird case (e.g. that person that tried to sell her Star Wars fanfic on Amazon), no one is trying to.

So you don't like the idea of fanfiction. So you think it's lazy, unimaginative and a waste of time for the writers involved. So what? That's just your opinion, which you're backing up with comments about copyright law, where the issue of fanfiction is (guess what) STILL a gray area. Face it, some writers chose to satisfy their impulse to write by writing in another universe, and they are happy that way. They don't need you to validate them by telling them you think writing fanfiction is a good use of their time, because it is their own personal happiness and personal opinion that matters most. There's always going to be someone who thinks differently from you on the subject, and until someone dies and makes you dictator, they're going to do what they think is right. That someone thinks differently or acts differently than you do does not mean their thoughts and acts are wrong, and if fan writers feel happy or fulfilled by writing fanfic, it is their affair.

I'm not telling you to shut up, or that your opinions and points are invalid or whatever. All I'm saying is that there's another frigging side to this issue than the tired one of 'but it's ILLEGAL...or should be', or 'why can't all these sad, sad people see that they are WRONG and PATHETIC to do this?'.

[P M Rommel]

Nothosonomia wrote: "For every good working author there are thousands of screaming, starving fans, many of whom are even now testing the laws, fighting them, overwhelming them with sheer mass, in order to steal their author's creations and livelihoods"

There are? Where is this happening - can you cite examples of this in action? Because I'm in fandom - have been an active, creative fan for 25 years - and I've honestly not seen this as a general attitude among fans.

I've seen odd examples of people who seem to have some kind of an entitlement issue over characters they've created and who seem unable to see the dissonance between "I can borrow what I like from 'famous author X', but if you use my Mary-Sue you're an evil plagiarist", and I think I can recall two who really didn't understand the meaning of the word 'copyright'. But in 25 years, that's been it.

I'm not seeing hordes of fan writers attempting to get their words published for profit where 'hordes' has a meaning of 'more than five in a 25 year period'; I'm not seeing hordes of fan writers forgetting to ut disclaimers on their work, where 'hordes' has a meaning of 'more than ten over the last ten years'.

I'd be interested to see if Nothosonomia (or Lee) have any data to disprove that.

And I think, Nothosonomia, that in your first post you're conflating patent (which has a very specific legal meaning) with copyright (another specific and different legal meaning) with trademark (yet another different and specific legal meaning) with the French and Berne Convention idea of 'droit d'auteur'.

I think you're also conflating all of those with the idea of the lonely author, labouring away in a garret on the Left Bank in Paris to eventually produce something with the perfect originality of a dewy rose on a June morning.

Bollocks.

Modern writing, IMO, particularly in genre and TV, bears more resemblance to the production of widgets or furniture and should be seen in the same way.

[Keith]

"If I use one of your characters in a piece of fiction, it doesn’t change anything that you wrote."

Of course it does. Addition of information is alteration.

[lost_erizo from LiveJournal]

Nothosomia wrote:
“And yes, given that I don't actually have a physical living boy called Harry Potter to hold and protect, the "copyright" is the best we can do. It's still ownership. It's really all semantics. And, as you illustrate, it's under attack.”

It’s not just semantics – it’s this patently wrong assertion that someone can somehow own an idea that leads to misunderstandings not only about what copyright protects, but what an author’s rights are. You can’t defend something very effectively if you’re defending the wrong thing. If you’re worried about copyright being under attack, then I don’t understand why you think you will get farther in defending it by asserting ownership which doesn’t exist than you will by arguing for why it should take the form that it does today. Why does asserting something that someone else can easily show is simply not true help your case? It doesn’t help you, it just makes you look rabid and delusional.

(By the way, I don’t think that you are either rabid or delusional. I think you’re upset. But neither am I the only pro-fanfic person reading this blog.)

“Everyone knows a fanficcer did NOTHING to have any kind of claim on the character; no work, no thought, nothing other than reading someone else's work and boldly and blatantly STEALING their ideas wholesale. The more thoroughly stolen, the more "canon" it is, isn't that right?”

Everyone knows nothing of the sort. If that were true, dozens of websites, literary magazines and books which discuss the role, merits and legalities/illegalities of derivative fiction and fan writing, would not exist. In fact, if that were true, we wouldn’t be having this conversation.

“I actually don't care about fanfic that knows its place; that credits its sources and knows it's ripping people off and admits it, makes no profit, and the author has agreed to turn a tolerant eye on the people playing with the characters that she OWNS.”

And yet, you seem to be very upset that anyone would chose to defend those “fanfic[s] that know [their] place.” And by posting in this particular blog on the anti-fanfic side of the argument, you would appear to be supporting those who say that fan writers are hypocrites for even discussing these issues and trying (admittedly futilely) to self police their own communities. Is ignorance better somehow? Should we try to stop all discussion of this within fan communities because it’s somehow better for them not to know what the actual issues are?

“It's when people start saying "Well, the fans are the ones who REALLY own Harry because they're the ones who love him best and they should get to decide what is done with him; there should be no restrictions on us at all, and Harry Potter should go into the public domain because I want to write about him rather than make my own characters" and "We fans are better at writing Monk than Monk writers are!" that I start to see red... from anger, and from fear.”

To quote veejane from her comments on John Scalzi’s blog “Unfortunately, fandom is full of crazy people and poorly-informed people, because fandom is full of people.”

I would submit that the same is true of the anti-fanfic faction.

“Especially when there are people like yourself implying that copyright law is wrong, and should be changed, so that authors lose even what tenuous hold they have on their livelihood, their hard work, to let it be sucked away by parasitic leeches who are too stupid or too lazy to do their own homework.”

Please explain to me how something that prevents your work from being copied seventy years after you’re dead is protecting your livelihood. You won’t have a livelihood – you’ll be dead! If you want to make an argument that fan fiction is hurting your ability to profit from your work then make it. But please don’t make assertions about ownership of ideas or the aesthetic value of an entire class work, much of which you’ve never read, that are blatantly unsupportable.

I don’t think that the concept of copyright is wrong, but nor do I buy into the illusion that it’s primarily intended to protect authors anymore. It’s protecting the profits of Disney, of software companies, and of publishing houses. It’s protecting the profits of the heirs of great writers who’ve never created anything themselves. I think changes were made thirty years ago to the way that copyright is conferred that are not consistent with the goal of encouraging creativity and productivity, or even scholarship, and instead do the opposite. Perhaps the publishing companies would be encouraged to take on more original writers and publish new fiction if they weren’t still making profits off their exclusive rights to the work of authors that should have entered the public domain thirty or more years ago.

And if you actually want to defend copyright, perhaps you should begin by trying to make sure that it’s application doesn’t appear so blatantly biased, unfair and against it’s own stated goals that others feel justified in violating it.

[lost_erizo from LiveJournal]

I wrote:
"If I use one of your characters in a piece of fiction, it doesn’t change anything that you wrote."

And Keith responded:
“Of course it does. Addition of information is alteration.”

Could you elaborate? Because it seems to me that if I add information to your actual text and reprint it with those alterations, then yes, I’m altering it. But if I produce a separate document which draws on your text, and credits your text, but doesn’t actually use your words, I not changing what you wrote. Four hundred years of commentary on and performances of Shakespeare’s work haven’t changed anything that he wrote, and anyone who wants to write new commentary still needs to go back to the original texts. The existence of Tom Stoppard’s play _Rosencranz and Guildenstern are Dead_ doesn’t change the text of _Hamlet_. It may inform my reading of _Hamlet_, but then so could a scholarly analysis, or a review, or a parody, all of which are perfectly allowable on copyrighted texts as well.

[Keith]

"It may inform my reading of _Hamlet_"

You've done all the elaborating I could have. Your reading of Hamlet is changed.

I'm not debating the morality of fanfic; it's simply that your statement was not entirely true. While the text on the shelf has not been altered by someone's use of the same characters, "what the author wrote" can legitimately be seen to have been changed.

"Informed by" cannot mean anything but "changed by."