A Writer's Life

Poking a Sleeping Tiger in the Eye?

Lately, fanficcers seem intent on testing how far they can claim "ownership" of their work before the authors/rights-holders of the original media properties take legal action (just look at the Organization for Transformative Works or the Rowling dispute).

But now there is a new wrinkle. For many years now, a group of ardent STAR TREK fans have been producing STAR TREK: THE NEW VOYAGES (aka STAR TREK: PHASE II), their own, hour-long version of the original series. Original cast members like George Takei and Walter Koenig have "guest-starred" on the web-broadcast episodes and FX experts from the various "real" STAR TREK series have donated their talents to the project. So far, Viacom/Paramount has turned a blind eye to the project, presumably since it's a "fan production" and nobody has tried to make any money off of it.

That could change.

I just got my 2007 Nebula ballot from the Science Fiction Writers of America and among the movies & TV shows vying for the Script award is "World Enough and Time," an episode of STAR TREK: THE NEW VOYAGES written by Marc Scott Zicree & Michael Reeves that "aired" on 8/23/07.

Here's the problem. The  Nebula Rules state that to be eligible for the award that it must be "a professionally produced audio, radio, television, motion picture, multimedia, or theatrical script."
But the fans behind STAR TREK: NEW VOYAGES have claimed repeatedly that what they are doing absolutely isn't a professional production, it's just for fun, the video equivalent of fanfic:

The cost of the production is being paid out of pocket by the producers/crew. Yes, it is expensive, but we're fortunate to have many talented people donate their time and money for a worthy cause and a once in a lifetime trip around the galaxy! We in no way make money from this show and we all volunteer our time, effort and our own money to bring these shows to the internet. If you desire to help us in that capacity, please see "How can I donate" below

[...]Due to copyrights, there are no stations broadcasting our episodes. Star Trek: Phase II is a web-series. The episodes are available for FREE via the Internet. IF YOU FIND OUR EPISODES FOR SALE or RENT ANYWHERE, WHAT YOU HAVE FOUND IS AN ILLEGAL COPY. We cannot and do not make any money from the episodes. We ask you to inform us if you find anyone selling our work.

If they are now claiming to be a professionally-produced program, it puts their "fan" status in doubt...especially if they are now hiring writers...and it could bring Viacom/Paramount crashing down on them.

There's no question that all the other nominees in the Script category were paid for their screenplays. The inclusion of the script by Zicree & Reeves among the nominees (CHILDREN OF MEN, THE  PRESTIGE, PAN'S LABRYNTH, etc.) suggests that they were paid for their work, too. If they were, that's a big no-no... and would also seriously undermine the claims by the producers of STAR TREK: NEW VOYAGES that they are just doing the Internet equivalent of putting on a show in the barn for their friends.

It will be interesting to see what happens next.  Could Zicree & Reeves' submission of their script for a Nebula spell the end of STAR TREK: NEW VOYAGES...?

UPDATE:  I'm not plugged in to the SF scene so I had no idea that a controversy about this was already raging. See the comments section for statements from Marc Scott Zicree, who says he was paid for the script so it's a professional job, and ST:NV producer/star James Cawley, who emphatically maintains that his show is not a professional production and should not have been nominated. It will be interesting to see how this affects the future of ST:NV, not just with Paramount but with SAG, DGA, and WGA...

It's Just Pathetic

The Diary of a Mad Editor tackles the fanfic issue. He says, in part:

[...]fan fiction isn’t a bad thing just because the writing’s bad – it’s bad because it also undermines the integrity of the original work [...]Clearly, though, there is a difference between what Goldberg writes and what some acne-faced turd on Quizzilla.com or FanFiction.net writes.

[...]See, Goldberg’s writings are licensed by the original creators of the characters he writes about whereas fan fictioneers are infringing on the original authors’ copyright. One form of writing is done by professionals for commercial purposes and the other is done by delusional amateurs purely for love/self-love. Here’s the problem — now the fanfic losers want copyright protection extended to their “original” creations.

He believes that if the efforts by the Organization of Transformative Works to extend copyright protection to fanfic are successful, it could have a wide-ranging, negative impact on all writers.

If fan fiction receives legal parity with original work, it would create a wave of frivolous lawsuits in which any author of fan fiction could claim that the original author stole their ideas. As a writer, I cringe at this very thought. Giving derivative works that kind of legitimacy would destroy any value intellectual property protection has for writers.

I think he sums up the fanfic issue pretty concisely when he says:

A 14 year old kid writing fan fiction is unfortunate but forgivable, but when you’re 30 and still writing it, it is just pathetic. If you want to be taken seriously as a writer and have full copyright protection and all that good shit, write something original and worth reading.

A New Approach to Fandom

The Los Angeles Times reports today that DR. WHO executive producer Russell T. Davies is taking a new approach to fans. He's completely ignoring them.

"I think we're an unusual science-fiction franchise in taking a very big step back from fandom and having nothing to do with them. . . . Every program on the BBC has a message board on the website. I forbid it to happen on 'Doctor Who.' I'm sorry to say this, all the science fiction producers making stuff in America, they are way too engaged with their fandom. They all need to step back."

His policy of ignoring the fans doesn't seem to be hurting his show at all.  In fact, it may be helping by making his show more accessible to mainstream audiences worldwide.

It falls to Davies "to keep balancing how much continuity there is, how many stand-alone elements there are." Ever mindful of the shows' "mainstream audience" (meaning, not just sci-fi enthusiasts) and put off by "exclusivity" in general, he said he is reticent of creating overly inclusive stories dependent on viewers' in-depth knowledge of ornate histories.  This job is made easier by Davies' policy of ignoring the voices of those most vigilant.

Is there a lesson to be learned here for showrunners?    

Can Barnaby Jones Save The Human Race?

I've stumbled on something extraordinary ... a BARNABY JONES novel written by Buddy Ebsen with Darlene Quinn and "published" by Authorhouse, the print-on-demand vanity press. I couldn't resist buying the  $4.95 ebook version. What's interesting about SIZZLING COLD CASE is that it was published in 2006, three years after Ebsen's death, and is copyrighted by Ebsen & Quinn, even though they don't own the copyright to the TV series its based on.

In other words, it's fanfiction...and it's being sold on Amazon and on Authorhouse's site.  That's a big no-no, as Lori Jareo could tell you. She wrote her own unlicensed STAR WARS novel and sold it on Amazon...and was promptly slapped down by Lucasfilm.

But this blatant violation of copyright isn't likely to turn Quinn into another Jareo, mainly because BARNABY JONES isn't a huge media property like STAR WARS, isn't protected by lawyers as vigilant as those at LucasFilm, and is based on notes from Ebsen, who played Barnaby Jones, the elderly private eye. That doesn't mean Ebsen actually owns the character...but hiding behind Ebsen's ghost and his heirs will probably protect Quinn from a cease-and-desist letter.  Besides, it's not like anybody gives a damn about BARNABY JONES...and that probably includes the studio that owns the property. Can you imagine any studio suing Buddy Ebsen's family for publishing and selling "Barnaby Jones" fanfic? I can't.  Even so, publishing the book and copyrighting the character of Barnaby Jones as if it was their own was a pretty ballsy thing for Quinn and the Ebsen estate to do. 

I must confess that I haven't bothered reading the book. I couldn't get past Quinn's fan lyrics to the "Barnaby Jones" theme in the opening pages. I was laughing too hard:

Though many dangers now surround you
And evil lurks beneath the night
One man will fight the wrong around you
And strike a blow to make it right
When naked terror rides the highways
And sudden death waits in the street,
one man alone will roam the byways
confronting crime he must defeat
Barnaby, Barnaby -- what driving force has set your pace?
Barnaby, Barnaby -- can one man save the human race?

You can sing along with this:

Rowling Protects Her Copyright

When the Harry Potter Lexicon website announced plans last fall to publish a book based on their fan-written content, JK Rowling and Warner Brothers sued for copyright infringement.  A Federal judge halted the planned November publication of the book while the lawsuit plays out. Now Tim Wu at Slate argues that Rowling has gone too far.

Are fan guides actually illegal? As sympathetic as I am to Rowling and her rights as an author, the answer is no. There is a necessary and healthy line between what the initial author owns and what follow-on, or "secondary," authors get to do, and Rowling is running over that line like the Hogwarts Express. The creators of H.P. Lexicon may not be as creative as Rowling, but they are authors, too, and deserve a little respect from the law.

[...] Rowling takes the position that she, as the original author, has the right to block the publication of any such guide. In her words: "However much an individual claims to love somebody else's work, it does not become theirs to sell." But Rowling is overstepping her bounds.

It appears he is wrong, at least from a legal standpoint. A reader on Rebecca Blood's site refers to previous court precedents that support Rowling's claim:

Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998), aka, the Seinfeld Trivia case. Someone created and published an unlicensed book of Seinfeld trivia, with details about characters and lines in the show, arguing that doing so was fair use and merely a compilation of facts. The court held that the facts about the show weren't really facts, but rather expressions of the creators' imaginations, and the most important fair use factor of effect on the market was in Seinfeld's favor since they had plans for their own derivative books based on the show. See also Twin Peaks v. Publications Int'l, Ltd. 996 F.2d 1366 (2d Cir. 1993), which was plot summaries and quotations from the TV show Twin Peaks - again, the court held that the amount of material taken from the original was substantial and adversely affected the market for authorized books about the show, and so denied a fair use defense to copyright infringement."

Variety reports that Rowling is taking action because interferes with her plans to do her own compendium.

"I cannot, therefore, approve of 'companion books' or 'encyclopedias' that seek to preempt my definitive Potter reference book for their authors' own personal gain," Rowling said in a statement, released by Warner Brothers.

[...]The lawsuit doesn't seek action against the Web version of the Lexicon, but criticizes it for numerous sections it said "regurgitate Ms. Rowling's original creative expression with minimal additional commentary."

The CBC reports that Rowling isn't happy about having to take the fans to court.

Rowling had been a supporter of the website and in a statement released on her website, Rowling admitted she took "no pleasure" in launching the lawsuit.

"I feel massively disappointed that this matter had to come to court at all," the statement said. "Given my past good relations with the Lexicon fan site, I can only feel sad and disillusioned that this is where we have ended up."

The outcome of this case, if it goes to trial, could have far-reaching impact on how far fans can take their so-called derivative work and claim it as their own.

(Thanks to "Calistoy" for the heads-up).

The O.T.W. Wants Your Copyright

Novelist and First Amendment attorney Julie Hilden argues that authors and rights holders should be very concerned about the Organization for Transformative Work's proposal to extend copyright  protection to fan fiction. She writes, in part:

Does fan fiction deserve to share the same respect as original work, for copyright purposes? The OTW's proposal suggests so. Recognizing fan fiction as "legal and transformative" would put it on a par at least with "fair uses" of original works, and perhaps also with the works themselves. And the recognition of fan fiction as "legitimate creative activity" seems to put it on, or close to, the level of original works. But is that the fair or right level for fan fiction to occupy?

Hilden doesn't think so. She believes if copyright protection is extended to "fannish works," the original authors or rights holders will suffer a very real, detrimental impact with far-reaching implications.

the OTW is not asking for a fixed, low royalty rate for fan fiction; rather, it is trying to destroy original authors' ability to both silence fan fiction and require royalties for it. Thus, the OTW has bypassed the more moderate solution of a low, fixed, statutorily-mandated royalty rate for fan fiction that effectively sets that rate at zero.
Does that matter? Absolutely. Even those who strongly value fan fiction may worry about maintaining authors' incentives to create the original works that feed it.

 

The OTW's proposal is a complete abrogation of control with no compensation for taking away rights, or any substitution of rights (for instance, switching a right to refuse to license fan fiction with a right to charge a low, statutorily-mandated royalty.) In this sense, it is the most extreme proposal possible.

And one not likely to succeed, if the OTW is foolish enough to pursue it.  It would poke the studios, publishers, and authors right in the blind eye that they've been regarding fanfiction with for years. That should have fanficcers very worried. All it will take is one court challenge by the O.T.W for that blind eye to open and view the entirety of fan fiction with a very hostile gaze.

The studios, publishers, and authors aren't about to sit back and allow such an outrageous rights grab...nor,  Bilden argues, should they. She believes that copyright law is rightfully tipped in favor of original creators:

Our Constitution's Copyright Clause has always seen original authors as far more important than derivative users. However, especially in light of the Internet's influence, many have taken issue with that hierachy - even to the extreme of ignoring original authors' interests.

[...]not only does the Copyright Clause in fact privilege these creators over derivative users, but that hierachy may be the right one, from the standpoint of policy: Original work may actually be more worthy, in that it brings something genuinely fresh and innovative into the world, representing a creative leap and not just an incremental extension.

But, incredibly, the O.T.W. believes that Harry Potter slash fic is on equal footing with J.K. Rowling's books and deserves the same protections as her work...more over, that it deserves to be protected specifically from her.  And they don't understand why authors might have a problem with this...

What Would Happen if NBC Hired Fanficcers to Write "The Office"

Fannish Rights

"We envision a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity. We are proactive and innovative in protecting and defending our work from commercial exploitation and legal challenge. We preserve our fannish economy, values, and creative expression by protecting and nurturing our fellow fans, our work, our commentary, our history, and our identity while providing the broadest possible access to fannish activity for all fans."

That, my friends, is the mission statement of the Organization for Transformative Works, a new organization that hopes to legitimize fanfiction. I kid you not. When I first saw the site, I thought it was an elaborate practical joke, like amptp.com. But it isn't. The movers and shakers behind this effort include Naomi Novik, a fanficcer turned acclaimed fantasy novelist, and Dr. Robin Reid, the Texas A&MUniversity professor best known for writing fiction about real people like Viggo Mortenson having sex with other male actors.

They steal the creative work of others and then have the balls to say they want to "defend their work from commercial exploitation."  Their hypocrisy is staggering…and apparently boundless. One of their "missions" is "establishing a legal defense project and forming alliances to defend fanworks from legal challenge." (I wonder if they will also form an alliance with the group that polices plagiarism of  fanfic by other fanficcers) Novik writes on author John Scalzi's blog:

"We just want to enjoy our hobby and our communities, and to share our creative work, without the constant threat hanging overhead that an overzealous lawyer at some corporation will start sending out cease-and-desist notices, relying not on legal merit, but on the disproportionate weight of money on their side."

With that kind of reasoning, I'm surprised they haven't recruited Lori Jareo to lead their organization. 

While their staggering hypocrisy might be lost on the majority of fanficcers, the foolhardy nature of this effort isn't. For years, studios, publishers, authors and other rights holds have largely turned a blind eye to the blatant copyright infringement that is Fanfiction as long as fanficcers haven't tried to profit from it. Or, as John Scalzi puts it:

"To the extent that fandom currently does what it does, it does it because of the benign neglect or tolerance of the copyright holders of the works the fans are working with.

Now many fanficcers seem justifiably concerned that the OTW's efforts to claim ownership of their copyright-infringing works could end this fragile détente. Elfwreck writes on Scalzi's blog:

"Sooner or later a copyright owner is going to issue a DMCA notice to a fan, a fan is going to run to OTW (or alternately, OTW will offer its services), and an expensive legal suit will be on and if the case is of sufficient profile, then other copyright owners, alerted to the existence of a group who says they can in fact no longer control their copyrights from people who claim to be fans, will start giving the fannish community quite a bit more attention, and probably not of the good kind..."

Scalzi envisions it happening like this:

"If and when a fan, told by, say, NBC Universal to take down her Battlestar Galactica fanfic, decides to make the legal argument that her work is transformative and fair use, […] and the fan shows up in court with the assistance of an umbrella group dedicated to the proposition that all fan work is legal and transformative, I suspect the era of benign neglect or tolerance of fan activity will be at a sudden and pronounced end. Because now the fans are saying, why, yes, this really does belong to us, and corporations who have invested millions in and can reap billions from their projects will quite naturally see this as a threat. From there it's all DMCA notices and entire fan sites going down."

The OTW claims that "fannish work," an umbrella term for fanfiction and the "Real People Slash" that Dr. Reid gets off on and even such fetish fanfic as  "DUE SOUTH Masturbation" stories, is "transformative" rather than "derivative," that it is a unique and important expression of feminism, and therefore should be legally protected. John Scalzi observes:

"OTW's claim, however, appears predicated on a fairly expansive idea of what "transformative" means under the law, and also that all fanwork is transformative, apparently by the mere nature of being fanwork. OTW is perfectly in its rights to make such a claim, but they are fairly significant claims, and I don't imagine that OTW's interpretation of the law would go unopposed if it were presented in a court of law."

[…]I suspect that a judge asked to consider a possibly infringing works' "fannishness" as a relevant criterion for evaluation will toss that out early, chosing instead to look at what the law actually requires."

One fanficcer offered this comment on Scalzi's blog:

"I'm not going to stop [writing fanfiction] either way, so I'd like to see the rules set on fandom's terms, even if it is a segment of fandom that I and others don't wholly agree with. There's a risk in founding OTW at all, of course– it scares me to think of what unintended consequences might arise due to the whole thing. But there's also a risk in sitting on one's hands and doing nothing. If this history ends up being rewritten by victors that are not part of fandom, I'd at least like to know I didn't stand still and do nothing while they were at it."

I want to see the day OTW legally challenges J.K. Rowling's right to prevent people from disseminating stories about Snape and Voldemort gang-banging Harry Potter and Ron. Or the day the OTW fights for Robin Reid's right to create and distribute stories about Sean Bean having sex withViggo Mortenson. Because when that day comes, instead of legitimizing fanfiction, they will kill it…not only in a court of law but in the court of public opinion.

Fanfic Survivor

Novelist Lorraine Bartlett writes on her blog about her early experiences in fanfic.

I've never been ashamed of my writing roots.  I started out writing classic Star Trek stories when I was a teenager.  These days fanfic has a seedy reputation and, sad to say, rightly so. [...] Back in my day, distribution of these stories was small.  A big print run was 200 copies.  Now millions of people worldwide can peek at badly written fan stories from franchises that are still hot.  I can't say I blame the writers/producers for objecting. 

It was while she was a fanficcer that she discovered what it feels like to have your work stolen though, ironically, her work was also copyright infringement.

A "fannish" person removed the names of the authors from the stories in one of my zines (and my story as well) and sold hundreds, possibly a thousand copies of that fanzine at professionally run SF/Fantasy conferences.

That was my first taste of what copyright infringement feels like. I complained to the conference organizers, but since our stories were quite blatantly copyright infringement themselves, we didn't have a leg to stand on.  Still, I hated the fact my work was stolen.

This Will Cause a Fanfic Frenzy...

The Associated Press reports that JK Rowling made a surprise revelation in New York this week when asked by a fan at a signing if Dumbledore every finds "true love."

"Dumbledore is gay," the author responded to gasps and applause.

She then explained that Dumbledore was smitten with rival Gellert Grindelwald, whom he defeated long ago in a battle between good and bad wizards. "Falling in love can blind us to an extent," Rowling said of Dumbledore's feelings, adding that Dumbledore was "horribly, terribly let down."

Dumbledore's love, she observed, was his "great tragedy."

"Oh, my god," Rowling concluded with a laugh, "the fan fiction."