Smurf | August 8, 2006 10:49 PM

I'll give up my Larry Potter series then, if you're gonna be so snooty about it.

Michael_Patty | August 8, 2006 11:24 PM

While I certainly think that SELLING a work of fiction based on someone else's universe and characters, I would disagree with that your allegation that fan-fiction is actually illegal from the get go is accurate.

I base my contention on two things:

1.While it may not hold up in court in the long run, a legal argument could be made in defense of a given bit of fan-fiction as legal if a) it did not use a copyrighted work in its entirety, and b) was not sold in any way for profit.

2. If the copyright holder encourages fan-fiction, as many do, it BECOMES an authorized (and therefore legal) endeavor. Lucas incorporated (as I like to refer to the many collective holdings founded in his name) has on many occasions encouraged such writings. They're a great way to promote interest. True, they vary from mediocre to tragically bad. But publicity is publicity...

The reason that the suits don't sue fan-fiction authors is simply because a) there are just too damn many of them, b) they represent the author's most devoted fans (and alienating such a fan base is just plain stupid, from a purely capitalist perspective), and c) certain clauses under U.S. copyright law may well protect them (see above).

Frankly, I think they're harmless, if extremely silly. I can see why you wouldn't care for them, John, in light of your field. But I really don't think that calling the pathetic souls "lawbreakers" or "thieves" is accurate.

That's my two-cents, anyhow.

Michael

Naomi | August 8, 2006 11:38 PM

because nearly all of them were like dropping in on a heated argument that had a subtext one could learn nothing about, and anyway the argument was in Albanian, so all you knew was there was a lot of yelling and shouting.

You have just described every single Harry Potter fandom scandal I have electronically dropped in on. Some insider flame wars and scandals make for fairly interesting reading to an outsider, but the Harry Potter ones don't, because they are completely incomprehensible without months of background reading (and I don't mean the actual books, all of which I've read).

John Scalzi | August 8, 2006 11:38 PM

Michael Patty:

"While it may not hold up in court in the long run, a legal argument could be made in defense of a given bit of fan-fiction as legal if a) it did not use a copyrighted work in its entirety, and b) was not sold in any way for profit."

What you're saying here is that it's illegal, it'd just take a long time to get a ruling as such. Also, you're wrong in your understanding of US copyright law.

"If the copyright holder encourages fan-fiction, as many do, it BECOMES an authorized (and therefore legal) endeavor."

Certainly a copyright holder can legally license someone to use their work, but absent that license, it's still illegal. Indeed, one of the reasons people use the "Creative Commons" license is that it's a simple way to allow people to use copyrighted material without needing to get explicit permission of the copyright holder.

Barring that, however, a tacit agreement by the copyright holder not to enforce his or her copyright does not mean the copyright has been legally relinquished. It's not like a trademark, in which failing to enforce the mark can cause it to be shunted into the public domain.

So, yes, in fact, I'm quite comfortable calling fanficcers intellectual thieves and lawbreakers. Generally speaking, it's what they are. It's a legal thing, not a moral assessment.

Hamish | August 9, 2006 12:10 AM

So, one thing I have always wondered about is the use of one person's literary invention by another author.

Ursula K. Le Guin, IIRC, came up with the Ansible, and this seems to have been co-opted by a number of people into their work, e.g. Orson Scott Card in his Ender books.

Is this somewhere where OSC has been granted permission by UKLG, or does the use of a single SF "invention" not run afoul of copyright?

Bruce Adelsohn | August 9, 2006 12:10 AM

I saw a coherent explanation, with examples, of the apparent plagiarism (five or so passages that mirrored material from Buffy the Vampire Slayer nearly word-for-word). I'll try to find it, but not having bookmarked the post, I can't guarantee success.

ISTM that much of the kerfuffle stems from two specific things: first, that the author is a Very Big Name in fanfic (I don't generally read it, but did in fact enjoy her LotR-based material when pointed at it), and second, that she is in fact under contract to produce original material for publication. Both of these may be written off as envy; likely are, in most cases. In any event, not my thing, but I happened to have seen it last weekend, and thought I'd drop a pair-o-pennies into the discussion in hopes it might help.

John Scalzi | August 9, 2006 12:16 AM

Bruce Adelsohn:

"I saw a coherent explanation, with examples, of the apparent plagiarism (five or so passages that mirrored material from Buffy the Vampire Slayer nearly word-for-word). I'll try to find it, but not having bookmarked the post, I can't guarantee success."

As I'm not interested in naming the fanficcer in question here, you don't need to knock yourself out finding that link.

Firebyrd | August 9, 2006 12:50 AM

Since someone in the comments mentioned the LotR thing, the fanficcer in question has practically been named already. ;)

John Scalzi | August 9, 2006 12:52 AM

This assumes everyone here reads LoTR satire, which I'm not entirely sure that they do.

Steve Ely | August 9, 2006 12:53 AM

John, anyone writing fanfic about John Perry or Jane Sagan yet?

John Scalzi | August 9, 2006 12:55 AM

Someone did send me some OMW fanfic about a year ago, actually. I don't remember much about it, however. I doubt there will be much fanfic traction in the OMW universe, anyway.

Christopher Davis | August 9, 2006 01:21 AM

The big issue seems to be the use of fairly large chunks of a non-HP novel with the character names substituted.

As someone put it at the time:

What I didn't realize at the time was that you used not merely [Author]'s ideas [...] as you acknowledged having done, but that you actually used [Author]'s own language to do it. If it had just been an odd phrase here and there, I could have passed it off as a subconscious thing; but when nearly every phrase is the same, and only the names have been changed...

In order to have the passages match so closely, you would have had to have the book open in front of you, or to have read it so many times that you had virtually memorized it.

Christopher Davis | August 9, 2006 01:23 AM

The second paragraph in my previous comment should also be part of the blockquote. (The glitchy preview bit me.)

Annalee Flower Horne | August 9, 2006 01:52 AM

Meh. I've heard good things about her fic, but I'm not going to pick up her novel. She no longer denies the accusations of plagiarism... she just doesn't apologize for them. I don't think the profic authors she ripped off are nearly as pissed at her as some of the fen, but I've got no plans to pick up her book. Her ability to mash up other people's writing to create a cohesive story tells me nothing about her ability to write a cohesive story on her own. If someone ripped off Old Man's War, changed the names to make it a Star Wars fic, and then announced they were going pro with a real novel, I'd say "bully for them." But if they turned around and tried to use that fandom-cred to push their book by using that fic as evidence that they can write a good story (as the author in question has done), I'd say "Well it's evidence that John Scalzi can write a good story... I still haven't seen any of your writing yet."

Other thrilling fun involving this author includes that time she got her fans to buy her a new iPod, and that other time she got them to buy her a laptop. The unspoken rule of fanfic is "Never EVER try to profit from your fanfic." "I'm glad you like my work; please buy me expensive electronics?" Tacky. Maybe not criminal (IANAL), but tacky.

If you want a review of the situation that at least makes a stab at being unbiased and is designed to explain the whole situation without resorting to digging through message boards, wiki.fandomwank.com has pretty comprehensive coverage of the drama. And fandom_wank's only goal is snark and merriment, so it's usually full of the funny.

Ron | August 9, 2006 01:53 AM

"I'm sure there is fanfic that features public domain characters"

Heck, Alan Moore got two whole volumes out of The League of Extrordinary Gentlemen, with a third on the way, and if those series weren't (high, high quality) fanfic, I don't know what is.

Lars | August 9, 2006 02:21 AM

I'm assuming this author you mention found some monetary gain in Rowling's concept? Can't tell from anything in the post that i saw.

Until recently, i'd been posting my work on an online art community website called DeviantArt. It was so filled with fanficcers that i had a few of my own. They were a little younger than me, and I was honored, because i knew they were using my literature as a tool for their imaginations. I don't think we should be knocking fanficcers all together just for the over-ambitious bad-apples among them. Most fanficcers respect copyright laws, so it's harsh to call them thieves.

And Michael, i wouldn't call them extremely silly either; some of their writing is anything but.

Diana Sprinkle | August 9, 2006 02:48 AM

Man this thing is STILL raging?? Jezzus mary. I kind of find it hard to muster the vitriol even back in the day (2000? 2001?) when her 2 gigantic 270,000+ word fanfic stories had a page or two of lifted text from some book from some author, who later gave her permission to lift it.

Or at least that was the last of it I heard. There could be quite a lot more going on I never heard of but most of it seemed rather blown out of proportion.

The laptop thing seems a rather odd thing to bring up in that context. As I remember it, her and a friend's laptop's were stolen and after talking about it on her blog, like people do when something bad happens. People thought it'd be nice to help her and her friend out. Seemed rather like a nice jester of human kindness to me. I have no idea about the ipod thing.

Hmmm, I wonder if this is only still raging cause she's going into pro publishing under her fan name? Unlike most of the other fanfic people I see moving into the publishing.

-Diana

Diana Sprinkle | August 9, 2006 02:51 AM

Ha, wrong gesture, there. Spell check fails me to great humor. =

-Diana

Ted Lemon | August 9, 2006 03:41 AM

Karmically speaking, getting upset at someone when they get something you want, and then trying to spoil it for them, is the surest way there is to ensure that you never get the thing that you wish you had gotten instead of them.

ebear | August 9, 2006 06:48 AM

John sez: I doubt there will be much fanfic traction in the OMW universe, anyway.

Bear hears: the knell of doooom.

I thought OMW *was* fanfic! All those oversexed redheads! The slide rules! The inch-tall alien overlords!

Nevermind. I'm going back to my tasseomancy.

John Scalzi | August 9, 2006 07:51 AM

ebear:

"I thought OMW *was* fanfic!"

Well, yeah, but I filed down the serial numbers.

Chang | August 9, 2006 07:54 AM

MUch ado about nothing. As we used to say in the 3rd grade: "Big whoop!"

Kate Nepveu | August 9, 2006 07:57 AM

John, are you saying that you don't care about plagarism in fanfic, or that you don't think it's morally wrong to plagarize in one's fanfic? I'd like to be clear.

And for further clarity: the allegations are that two scenes were lifted, with names changed, from an obscure then-out-of-print novel, without attribution and without any indication that the scenes were not original to the fanfic author. John doesn't want to name names or to have links, so let's assume, for the purposes of my discussion, that we're talking about a hypothetical fanfic in which it's beyond doubt that two scenes were lifted from a book that almost all of the intended and expected audience would not know, without attribution etc. as above; the hypothetical example is not a case of a single line, or of obvious riffing on a known work like _Rosencrantz and Guildstern Are Dead_ or even Terry Pratchett's _Wyrd Sisters_.

Kate Nepveu | August 9, 2006 07:58 AM

(Because if the first, well, I can't make *you* care, but I can explain why *I* care; and if the second, well, you're wrong. Just so you know.)

John Scalzi | August 9, 2006 08:40 AM

Kate Nepveu:

"John, are you saying that you don't care about plagarism in fanfic, or that you don't think it's morally wrong to plagarize in one's fanfic? I'd like to be clear."

Well, to be clear, I find plagiarism of any sort morally reprehensible -- one is claiming work one did not create, and that's wrong.

What I'm saying is twofold:

1. I'm interested in hearing an argument from fanficcers (or fanfic fans) as to why plagiarism in fanfic is any worse of a copyright violation (and moral issue) than the copyright violation which allows fanfic to exist at all; i.e., fanfic's original sin of misappropriating characters and settings owned by others.

2. Even if one can make the argument above, why the sins of this particular author within the field of fanfic should be made to follow them outside the world of fanfic, in the absence of evidence that their plagiarizing ways have continued outside of this particular realm.

It's pretty clear the intent of the e-mails to me on this topic was to get me to slag this particular author and help pull this discussion out of the fanfic world and into the larger SF/F community, but as I've said, I'm not at all convinced that this kerfuffle matters outside this very specific community, and I'm certainly not convinced this author needs to have their attempts at original fiction denigrated even before it hits the bookstores.

Shawn Struck | August 9, 2006 09:21 AM

Someone did send me some OMW fanfic about a year ago, actually. I don't remember much about it, however. I doubt there will be much fanfic traction in the OMW universe, anyway.

Would, say, developing an Occupation Character Class for RIFTS based on OMW characters or possibly "rebuilding" them in the HERO system count?

And if someone where to put them up on a personal web-page, would you sick attack lawyers on them? Because I-- I mean, MY FRIEND just read & finished OMW and loves it very much and now is champing at the bit for Ghost Brigade...

John Scalzi | August 9, 2006 09:26 AM

Shawn Struck:

"Would, say, developing an Occupation Character Class for RIFTS based on OMW characters or possibly "rebuilding" them in the HERO system count?"

Probably not.

Also, as long as it's done informally, and no one's making money off it, I don't care if you do it, and I don't particularly want to know about it. I might care later if I get a formal offer to build a game based in the OMW universe, but that's another matter entirely.

Wakboth | August 9, 2006 09:34 AM

"1. I'm interested in hearing an argument from fanficcers (or fanfic fans) as to why plagiarism in fanfic is any worse of a copyright violation (and moral issue) than the copyright violation which allows fanfic to exist at all; i.e., fanfic's original sin of misappropriating characters and settings owned by others."

The difference, as I feel it, is that fanfic explicitly acknowledges that they're using the characters and a setting created by another person; fanficcers aren't claiming the work of another as their own.

Plagiarists, on the other hand, don't acknowledge that they didn't come up with the things they write about, and are trying to claim the work of another as their own.

I'm not sure if there's a legal difference, here, but IMO there certainly is a moral one.

Kate Nepveu | August 9, 2006 09:50 AM

(1) Seriously? Okay, then: unattributed borrowing is worse than attributed borrowing.

Fanfic makes no effort to hide its borrowing. For almost all fanfic, there would be no *point*, because it's deliberately playing off the common knowledge and expectations regarding the borrowed characters. Everyone reading it knows that the characters and the world were someone else's creation, unless otherwise noted.

Plagiarism hides its borrowing. It passes off someone else's words as your own. This is cheating and lying, which is worse than unauthorized borrowing.

I dunno, this seems kind of self-evident to me.

(This is assuming for purposes of argument that all fanfic based on in-copyright work is illegal. The _Wind Done Gone_ case demonstrates that this is not actually so. However, fair use is a case-by-case determination, and we're talking in broad strokes here.)

(2) The argument I've seen is that this author's contract is probably based in part on the proven audience for her writing, and therefore she should not be allowed to profit indirectly from plagiarized material.

I do not agree with this argument. I am no longer going to read or buy this author's original fiction, but that's a personal decision and not an attempt to convince anyone else to do anything.

(3) Why does "plagiarism" have such odd and difficult vowels?

Annalee Flower Horne | August 9, 2006 09:53 AM

Kate Nepveu, as I understand it (and I should probably offer up the disclaimer that I avoid the HP fandom like the plague, so all I know is what's turned up on fandom_wank), it was a lot more than just the pages she lifted from the book. It was also a whole lot of dialogue from Joss Whedon's work. Which was of course neither obscure nor out of print at the time. I can sort of buy that she might have expected everyone to recognize it and see it as an homage, but she apparantly accepted praise for said dialogue without any attempt to clarify. With all the ills in the world, ripping off Joss Whedon in a really obvious way isn't really high on my list of things to get my knickers in a twist over, but I can see why people got peeved.

1. I'm interested in hearing an argument from fanficcers (or fanfic fans) as to why plagiarism in fanfic is any worse of a copyright violation (and moral issue) than the copyright violation which allows fanfic to exist at all; i.e., fanfic's original sin of misappropriating characters and settings owned by others.

Hm. Well, look at it this way: If someone took something you posted on Whatever (let's say something long and cool, for the sake of argument) and put it on their own blog without asking, it might be mildly annoying. Maybe they credit you but forget to provide a link; maybe they do provide a link. Either way, it's a mild violation of netiquitte and they've technically violated your copyright, but in the grand scheme of things, it's not worth getting ridiculously upset over. They're not costing you any money, and maybe you're getting new readers out of it. Kinda like with fanfic-- it's illegal, but in the end, no harm, no foul. Most copyright holders just don't really care.

But if that same person took that same post from Whatever, put it up on their site without credit so that it looked like all their other posts, and then accepted praise for the post as if it were their own writing, that would be a much bigger deal. People, both Whatever readers and others (and I assume you as well, but you know what they say about assumptions) would get peeved and tell them to credit you/take it down. If said hypothetical blogger tried to claim that they never intended anyone to think it was her work, because she just assumed everyone would be familiar with your blog, people would call bull.

That, as I see it, is the difference. Fanfiction is benign violation of copyright. Plagiarism, fanfic or no, in malignant violation of copyright.

2. Even if one can make the argument above, why the sins of this particular author within the field of fanfic should be made to follow them outside the world of fanfic, in the absence of evidence that their plagiarizing ways have continued outside of this particular realm.

Disinclined to argue with you here. I think it's tacky of her to use her fandom cred to promote her pro work, but I'd think that even if she hadn't been accused of plagiarism several times. In my fandom (Star Wars), that's a big no-no. But HP has always rolled a little differently than the rest of us where Fear of Lawsuit is concerned, so maybe that's perfectly normal for them. If she plagiarises in her pro work too, I'll get pissed. Until then... meh. It makes for good fandom_wank humor, and that's pretty much the extent to which I care.

Kate Nepveu | August 9, 2006 09:57 AM

Annalee Flower Horne: yes, I'm aware of the Whedon-dialogue accusations, but I personally see them as less serious. Dialogue strikes me as easier to get stuck in the head without realizing it, the works were less obscure, and the lifting was less.

But yes, there were more accusations of lifting. I just picked out what as I saw as the most serious and substantial.

Avdi | August 9, 2006 10:07 AM

So you find fanfic a) morally reprehensible, but b) you don't much care; and c) you think it's generally beneficial to a media property in the long run (if longevity is beneficial, which it usually is). So it's wrong, but it's good, and you don't care.

Does this attitude confuse anyone else as much as it does me?

(Disclaimer: I don't write fanfic, I've read preciousl little of it, and I find the whole fanfic world baffling.)

Dane | August 9, 2006 10:36 AM

I dabble in facfic. In the past year, I have been sent more and more email notices by fellow fanficcers telling me my canon violations are excessive. To me, policing done within the community has developed some ridiculous parameters.

If it is TOO like the original then it's plagarism, TOO dissimilar and it violates canon. We fanficcers are on a narrow ledge. The crowd screams "jump!" but can't look away, afraid that if they do we will.

Bruce Adelsohn | August 9, 2006 10:55 AM

John,

Okay. I won't search. Thanks.

Kero aka Kevin | August 9, 2006 10:58 AM

I'm not sure what it is hard to understand that something can be good and bad and trivial at the same time. Think of a someone in great shape having a twinky once a month. Twinkies are good, the are bad for you, and the person eating it doesn't care about it one way or another. Now imagine that you are a Twinky con-o-sewer, perhaps their disdane for your Twinkies would strike you as strange. But let me assure you, to someone with no connection to fanfic it's perfectly easy to understand the position.

James Nicoll | August 9, 2006 11:04 AM

If it's the author I think it is, not only did they lift large sections from the works of a minor but well-liked author but even before the fanficker's professional book has come out, there are allegations that she violated another author's IP.

Also, if we're talking the same person, they get very territorial when other people use their highly derivative of one well known work as applied to another etc, which seems inconsistant at best.

Also also, in one of those moments of hilarity the world loves, Kaavya Viswanathan was an admirer of the unnamed BNF. Fanfic: the entry drug for _plagiarism!_

Next: FANFIC MADNESS, in which an apparently harmless attempt at rewriting ORPHANS OF THE SKY in the style of Monty Python leads to widespread plariarism, lawsuits and entirely gratuitous (although appreciated) nudity.

Kate Nepveu | August 9, 2006 11:27 AM

Dane: the accusations in question were not of plagiarism of Harry Potter books.

John Scalzi | August 9, 2006 11:36 AM

James Nicoll:

"If it's the author I think it is, not only did they lift large sections from the works of a minor but well-liked author but even before the fanficker's professional book has come out, there are allegations that she violated another author's IP."

Possibly, but allegations aren't fact, and until and unless these the author's original fiction is shown to have genuine plagiarism within it, it does a disservice to the author. People are e-mailing me with "proof" regarding this original work's borrowing from other works, but it's thin gruel indeed, and at best seems to show that people misapprehend the difference between plagiarism and merely being overly-dervivative of previous work in the genre. So, if it's all the same, I'll wait until the original work comes out.

Kate Nepveu:

"Fanfic makes no effort to hide its borrowing... Plagiarism hides its borrowing."

That's certainly a difference between the two. I don't know that there's much of a legal difference, and it's an interesting question of how much of a moral difference there is as well. Is the argument that it's better to steal baldly and in full view, then stealthily and in private? If I am a shop owner, the person who comes into my shop, puts an iPod under a shirt, stares right at me and then tries to walk out with it is going to get me more in a moral dudgeon than the one who tries to sneak it out unseen, if for other reason than the thief is disrespecting me in the open, in my own place of work.

I'm not defending plagiarism, mind you. It's bad. I'm just asking whether the question of which is more egregious, blatant theft of character or quiet theft of text, isn't like asking whether cake or pie is the better dessert. Ultimately, they're both still dessert.

Light | August 9, 2006 11:41 AM

A fanfiction writing friend of mine wants a button that says "I'm a copyright infringer, not a plagiarist."

Because suggesting if you do one you might as well do the other would be a damn dangerous idea in the hands of a pissed off copyright holder, which I think no one wants. So aside from the fact that the plagiarist (and it's to the tune of pages upon pages of text lifted, apparently) has not only endangered the peacefully gray existence of fanfic, but been untrue to the infringer's faith. Everyone who read her fanfic knew she was infringing on copyright. They didn't know she was claiming Roger Zelazny and Pamela Dean and countless others' work as her own. The audience expectation for fanfic is 'this canon is not yours, but these words are, and that is what we will judge you on.' And in her case, they weren't. So feeling betrayed is really not unreasonable, IMO, considering that yes, there is quite a bit of honor among thieves. And why shouldn't there be?

kevin | August 9, 2006 11:45 AM

1. I'm interested in hearing an argument from fanficcers (or fanfic fans) as to why plagiarism in fanfic is any worse of a copyright violation (and moral issue) than the copyright violation which allows fanfic to exist at all; i.e., fanfic's original sin of misappropriating characters and settings owned by others.

I am neither a fanficcer nor a reader of fanfic, but I am sympathetic to the notion of limited forced licensing, so let me take a stab at that.

When someone releases a work to the public, that work becomes part of the culture. The mass of people who make up a society take the ideas and the tropes in and assign meaning to them through the usual Brownian motion of human interaction. In a sense, once something is released in the wild, it ceases to belong exclusively to the author/creator and belongs, at least in part, to the larger society.

All of culture is a mash up. After all, as the saying goes, there are no new stories. It seems like a small step, to me, from exploring ideas implicit in OMW to exploring those ideas using the universe of OMW. As long as the creator is compensated, I don't see the moral argument against it (aside from the argument that it is immoral to break the law without sufficient reason and copyright laws do not rise to "sufficient").

So, from the stand point of copyright v. plagiarism: in the first case what is being appropriated are ideas and in the second case what is being appropriated is the actual work done to make the ideas concrete. But the first case can simply be seen as a difference in degree from the normal appropriation of ideas. After all, Forever War and, apparently, OMW (haven't read it yet, please don't kill me.) borrow heavily from the ideas, tropes, and even the imagined technology of Heinlein’s work. Is the degree of difference between Forever War and Heinlein fanfic, if such a thing exists, really great enough to justify treating the two types of borrowing differently?

I go back and forth on that issue myself, actually, but I can certainly see the moral argument for the proposition. And thus if the two types of borrowing are not significantly different, then I would have to say that plagiarism is worse -- it is not borrowing ides, it is taking and passing off as one's own work that someone else did.

Kate Nepveu | August 9, 2006 11:50 AM

Is the argument that it's better to steal baldly and in full view, then stealthily and in private?

Oh, I really don't want to have the "is stealing an appropriate metaphor for intellectual property violations" conversation, I really don't.

Moreover, I am getting the distinct feeling that you are deliberately framing the debate with an eye toward being inflammatory. I don't know whether that feeling is justified, but regardless, because of it I'm in no mood to continue this discussion. I've said my piece and I'll leave it at that.

Fuzzy | August 9, 2006 11:54 AM

John, I think you're confusing the issue and blurring the lines of the moral difference between fanfic and plagiarism a bit by your continued use of the word "theft" and your metaphor of the iPod thief. Because, of course, if I use your copyrighted characters in a work of fanfiction I haven't taken them away from you. If there is a physical-world analogy for fanfic, I think it'd be more like "borrowing". To modify your metaphor, the fanfic author comes boldly into your shop, looks you in the eye and says "I like this iPod so much I'm going to borrow it for a second." Then they go outside and loudly proclaim, "John Scalzi's iPod is awesome." The height of politeness (or creativity)? Probably not. But not the same as theft.

Plagiarism is a lot more like theft, as the plagiarist is running around outside your shop saying, "Isn't MY iPod great? You should all like me because of my iPod."

John Scalzi | August 9, 2006 12:12 PM

Kate Nepveu:

"I am getting the distinct feeling that you are deliberately framing the debate with an eye toward being inflammatory."

Well, I'm definitely framing the debate, yes, because I want to ask the question of whether plagiarism is all told a greater problem (morally or legally) than copyright violation, which is at the heart of issue here. I have my own opinions on this, but I'm interested in hearing the explanation from people more invested in the discussion than I.

I'm not intending to be inflammatory, so if you want to switch metaphors to something you feel is more useful, by all means do so. My aim is not to troll but to explore.

Fuzzy:

"I think you're confusing the issue and blurring the lines of the moral difference between fanfic and plagiarism a bit by your continued use of the word 'theft'"

I would disagree, but fine: Both fanfic and plagiarism are copyright infringement, and both are equally copyright infringement, as far as I can see, in the eyes of the law. Is copyright infringement more moral when it's done openly, as it is in fanfic, than when it is done on the down low, as it is in plagiarism? This is the question.

Kero aka Kevin | August 9, 2006 12:12 PM

Justify it however you like. When you use characters someone else created you are infringing on the original author's copyright. When you lift someone elses text and use it in your own work without credit you are infringing on the original author's copyright. Use whatever metaphore you like, from a legal standpoint your intention doesn't really matter, whether you are trying to improve the original author's mind share or are plagerizing their work. It's all copyright infringement. Whatever your personal view is on the morality of copyright infringment or IP, currently this is illegal. Making grandious statements about one being "better" than the other is a distinction without a difference.

Martin McCallion | August 9, 2006 12:38 PM

I'm not sure that fanfic is copyright infringment. Isn't it the case that this is something of a grey area? Can you actually hold copyright in characters?

Obviously there is no copyright in names. For example, suppose I wrote a story about a character who happened to be called Valentine Michael Smith. People might think it an odd choice, but if he wasn't a superpowered, Mars-born human, there would be no problem, right?

Suppose, though, I also gave him a father-figure called Jubal Harshaw, who was a writer: are we descending further into a grey area? No, of course not: My Mike Smith is a plumber.

Or if I wrote of a witch called Hermione Granger who ran a delivery service on her broomstick; would I be ripping off JK Rowling or Miyazaki? (more the latter, obviously: Hermione's rubbish on a broom).

The point I'm trying to get at is, at what point do a name and a set of characteristics become the "property" of their author? And how many characteristics do you have to change before the author can no longer claim that "ownership"?

And if you can "own" a character, should you be able to? Well that's a different question,and maybe not one that you want to discuss here.

Irrespective of ownership though, no-one suffers because of fanfic, and no-one is deceived (it is, or should be, obvious that the fanfic writer is not claiming that the main characters belong to them). Plagiarism is worse because people are deceived. Though whether or not anyone suffers is debatable.

John Scalzi | August 9, 2006 12:41 PM

Martin McCallion:

"Can you actually hold copyright in characters?"

Yes.

Folks, you can't discuss copyright if you don't know what corpyright is. Here's where to start.

fuz | August 9, 2006 12:42 PM

Both fanfic and plagiarism are copyright infringement, and both are equally copyright infringement, as far as I can see, in the eyes of the law.

This, I think, is noncontroversial. I still object to the use of the word "theft". See below

Is copyright infringement more moral when it's done openly, as it is in fanfic, than when it is done on the down low, as it is in plagiarism? This is the question.

Yes. I don't see much at all immoral about fanfic, actually. You (and just about every honest author) freely admit to borrowing themes, details, memes, backstory, etc.. from other authors - I don't see that borrowing the universe outright is qualitatively different from that. It is certainly possible to disagree with that. Arguments could be made from greater good, lack of harm, or merely greater artistry in the world. Arguments could also be made from the inherent right of artists to control their creations.

A few earlier comments have pointed out legal fanfic that has brought light to the world. I would add Bill Willingham's Fables and Fred Saberhagen's Dracula and Frankenstein books to that list. Fables is one of the best series of graphic novels I've ever read, and Saberhagen is a better read than Shelley or Stoker.

Does the moral value of fanfic change based on whether the original work was written before 1923? That seems absurd.

Michael Patty | August 9, 2006 12:43 PM

Lars: I was perhaps a bit harsh about fan fiction. I suppose some of it isn’t bad from a purely analytical viewpoint. What makes it appalling to me is its complete lack of originality. It’s one thing to be “inspired” by someone else’s work to create your own unique story and characters. It’s another thing entirely to actually take someone else’s characters and setting and throw them into your own story. It’s just extremely unoriginal, and it’s a bit rude to the author, who probably put a lot of time, energy and love into carefully crafting those elements. You want to write? Go write your own story. You want to show your love and respect for the author? Write them a nice letter; start/join a fan club; or better yet, buy every book they ever wrote and encourage others to the same. But that’s just MY opinion. Obviously I don’t much care for fan fiction.

John: I still say it’s not illegal (sorry). Copyright law, like many laws in the U.S., is VERY hazy. To cover all the angles of possible “fair use,” they opened up a number of possible exemptions to the law. Because law in the U.S. is often hazy like this, we often rely on precedent to establish whether a violation of the law has been committed. I definitely think fan-fiction is in one of those hazy gray areas, and thus would have to rely on precedent. But there ISN’T much precedent. Copyright holders and their publishers are loath (for obvious business reasons) to come down on fan fiction authors. And when a particular fan fiction work is offensive to a copyright holder or their publisher, a simple “cease and desist” is usually sufficient. So it hasn’t really been ESTABLISHED as an illegal act. If it isn’t established as an illegal act, and it can be arguably legal, then they might NOT be breaking the law.

To anyone who is really interested in the law, you can read about it in detail at: http://www.copyright.gov/ It’s also great reading material for insomniacs (it’s really DRY reading, folks). You can also try reading the Wikipedia description, as it’s a little less intimidating (I don’t include a link for that here owing to John’s little rule on more than one link).

Michael Patty | August 9, 2006 12:46 PM

Er, whoops! Forgot to make the URL address above into a link. Sorry about that. Just copy and paste. :)

Annalee Flower Horne | August 9, 2006 12:56 PM

I think we can all cede the point that legally, there's no difference between 'honest' fanfic and 'plagiarized' fanfic. Those of us arguing that plagiarism worse than fanfic are talking about morality, not legality.

The reason I think it's more immoral to plagiarise than to write fanfic is that fanfiction doesn't cost the copyright holder anything. No one's going to go "well gee, I was planning to buy that book, but since there's fanfic for it, I guess I don't have to." Quite the contrary, in some cases... I've got a bunch of Doctor Who fen on my livejournal friends list, and though I was rather ambivelant about the series before, their excitement about it makes me want to check it out. I'll probably buy some of it if I get the chance.

Plagiarism, on the other hand, does cost the author--it costs them fair credit for their work. Authors spend all that time writing because they want people to give them money for it. They build themselves a reputation based on how well they write.

To continue the shop analogy, let's say your shop sells a high-quality product, and that you've got groupies (like Apple or Coke or Chaco has groupies). Fanfic is those groupies buying your products and then making similar things to show off to each other how well they can use your ideas. Is that a bit wierd and possibly annoying? Yeah. It might lead you to think that the ones that are actually good at it ought to instead spend their time building their own stuff. But if someone walks up to them and says "dude, I like this thing you made... can I buy it?" They'd say "Oh heavens no! This is based off of John Scalzi's products... If you want it, you should go check out his shop! I can give you directions! It's right down the street! You should check it out-- it's awesome!!!11one!"

Plagiarism is someone buying/taking your stuff, peeling your label off of it, and then sticking on their own. If someone expresses an interest in it, the plagiarist is doing you a disservice by not telling them that this thing that you made for the purpose of getting money and building your reputation is available at your store. They're depriving you of both the reputation and the money that random stranger would have given you if they'd known there was a place to buy your product. If they turn around and sell the product they've stolen from you, they've done you an even greater disservice, because now they've stolen your money as well as your product. But even if they don't sell it, they're still using your work to unfairly take reputation that you deserve.

John Scalzi | August 9, 2006 12:57 PM

Michael Patty:

It's not a rule, it's just that posts with more than one URL get shunted into a moderation queue and have to wait for me to release them. If they're from real live people, I release them quickly.

"Copyright holders and their publishers are loath (for obvious business reasons) to come down on fan fiction authors."

Fine, Michael; write some Anne Rice fanfic and see where it gets you. There are plenty of copyright holders who actively patrol their properties. Also, I suspect the "legal gray area" you're looking toward is rather more bounded than you suspect, and there is more than enough copyright law on the books to establish ownership. Remember that in US copyright law, whether something is written for profit is neither here nor there in terms of culpability of copyright violation.

Fuz:

"Does the moral value of fanfic change based on whether the original work was written before 1923?"

Sure, if you believe that following the laws of your nation has in itself some moral value.

"You (and just about every honest author) freely admit to borrowing themes, details, memes, backstory, etc.. from other authors - I don't see that borrowing the universe outright is qualitatively different from that."

The difference is one is illegal and one is not.

Annalee Flower Horne:

"Plagiarism, on the other hand, does cost the author--it costs them fair credit for their work. Authors spend all that time writing because they want people to give them money for it. They build themselves a reputation based on how well they write."

Does this mean that as long as one plagiarizes from authors who are not receiving an economic benefit from it (or hope to), that it is not immoral?

Also: Chaco?

Michael Patty | August 9, 2006 01:05 PM

Boy, I really should read all the way down the comments before posting. I would have noticed that John ALREADY put a link to the U.S. Copyright law website. *sigh* What can I say? Sorry about that.

Also, John, regarding your response to the gentleman on the issue of copyright and characters. I think he made some good points, and you dismissed him without really going into WHY and HOW characters are protected under copyright law. I must assume you are referring to the clause on "derivative works." You might just have a point there. But that's just it. What you have is a point. A strong argument. You don't have a conclusive "the world is round" sort of legal truth. You could take it to court, and would probably win. But not necessarily.

I guess the difference in our interpretations comes in the fact that I would argue that a thing is not illegal until in becomes inarguably a violation of law, either through precedent or because the law is simple and black and white (such as the case with, say, murder). You seem to hold the opinion that something questionable is automatically illegal until proven to be legal.

An impasse of opinions, I'd say. Since I don't particularly want to go to court with you over it, I'll just drop the issue with a weak "you have your opinion and I have mine." Conclusion. I probably should have kept my mouth (fingers?) shut in the first place. Ah, hindsight.

John Scalzi | August 9, 2006 01:14 PM

Michael Patty:

"I think he made some good points, and you dismissed him without really going into WHY and HOW characters are protected under copyright law."

"Dismissed him" is a bit harsh. The answer was simple: Yes, characters are protected by copyright.

"You seem to hold the opinion that something questionable is automatically illegal until proven to be legal."

No. The difference appears to be you seem to be under the impression that fanfic in itself constitutes a separate legal class of writing, whereas I don't see that this is the case under the law; therefore a rather voluminous amount of well-established case law applies to it and to violations of copyright therein.

Patrick Nielsen Hayden | August 9, 2006 01:27 PM

Kero writes:

"When you use characters someone else created you are infringing on the original author's copyright. When you lift someone elses text and use it in your own work without credit you are infringing on the original author's copyright."

When, without their permission, you use characters someone else created which are in copyright, you are infringing on the original author's copyright.

When you lift someone else's text and use it in your own work without credit you are infringing on the original author's copyright and lying to your readers about it.

The latter is the difference that seems to elude so many people posting here.

John Scalzi | August 9, 2006 01:29 PM

Bing!

cherie priest | August 9, 2006 01:39 PM

Hmm. I know exactly what you're talking about, because I have been sent similar links and prompts to expose the outrage. Only ... yeah. I feel roughly the way you do, which is to say,(based only on that which I can parse out from the threads) "So what?"

John Scalzi | August 9, 2006 01:45 PM

See, Cherie, you and I, we wield our awesome blog powers responsibly.

Mitch Wagner | August 9, 2006 01:48 PM

kevin:

So, from the stand point of copyright v. plagiarism: in the first case what is being appropriated are ideas and in the second case what is being appropriated is the actual work done to make the ideas concrete. But the first case can simply be seen as a difference in degree from the normal appropriation of ideas. After all, Forever War and, apparently, OMW (haven't read it yet, please don't kill me.) borrow heavily from the ideas, tropes, and even the imagined technology of Heinlein’s work. Is the degree of difference between Forever War and Heinlein fanfic, if such a thing exists, really great enough to justify treating the two types of borrowing differently?

Joe Haldeman, the author of The Forever War, swears he was not following up on Starship Troopers, rebutting it, or consciously thinking about it much in any way when he was writing TFW. He was writing a science-fiction novel based on his own, still relatively recent experiences in Vietnam. He says if there was a strong literary influence on TFW, it was The Red Badge of Courage.

The plot of TFW loosely parallels the plot of ST (he says), simply because, once you've set out to write a story about a young man going to war, your choices are limited. The young man goes into training. He finds the military to be an alien, harsh world. He adjusts and thrives, or washes out. He experiences his first battle. If he remains alive, and remains in the military, he will rise in rank and the respect of his peers, or not.

Joe says both he and Heinlein had soldiers wearing powered armor because that's what soldiers would wear in a space war.

Put any two novels about young men entering the military side by side, and one will look like a reply to the other.

This applies to Old Man's War. John Perry is an old man by terrestrial standards, but he's a young man when he gets off-planet, both physically, and in years.

John Scalzi | August 9, 2006 01:51 PM

Likewise, people often call OMW a response to The Forever War and it's not; I hadn't read the book before I wrote OMW.

Kate Nepveu | August 9, 2006 02:23 PM

Patrick says "lying" and gets a "Bing!", while I said "cheating and lying" and got iPod analogies?

I'm going to go sulk now.

Annalee Flower Horne | August 9, 2006 02:28 PM

Does this mean that as long as one plagiarizes from authors who are not receiving an economic benefit from it (or hope to), that it is not immoral?

In that case, one is still stealing their reputation, even if one is not stealing their money.

For the record, I'm not arguing that fanfiction is morally right. I'm just arguing that it's less morally wrong than plagiarism. I'm of the opinion that fanfic writers should recognize that they're trespassing in someone else's sandbox and leave their sense of entitlement at the gate when they do it. I'm also of the opinion that if the copyright holder doesn't want them doing it, they shouldn't*. But Lucasfilm and Rowling both freely admit to not giving a flying frag about fanfic (Rowling admits to reading it, which strikes me as a bad plan, but I'm not her lawyer). If they don't care, I'm not going to waste energy caring on their behalf.

*My exception to this is Zorro, because the people currently holding the copyright have no actual right to it (they bought it from the author after he'd already sold it to Disney and Disney won the lawsuit, so I'm not sure where they get off claiming to still own it), the original Zorro story is in the public domain, and trademarking a character to keep it out of the public domain is bull. I'm not an active member of the Zorro fandom (if there is one), but I actively applaud those who tell Zorro, Inc to cram it.

Anne C. | August 9, 2006 02:30 PM

I feel roughly the same as John on this subject, mainly because I have experienced the blood-letting that is original writing. I also wrote a small amount of fanfic as a teen and appreciated the author's forbearance to allow us to play in her yard.
This is, I think, a better analogy for fanfic. They are playing on someone else's property without an invitation. It is illegal to do so, but generous authors may allow some play, particularly if it leads to people paying for the guided tour. Plagiarists are those who build a house in that yard and pretend they own it. Both are illegal, and the difference between the two is *completely up to the property owner*.
I think most fanficcers understand they play under the benign eye of the author. They might come across a little better if they had a bit more humility about the fact that they are trespassing, rather than sounding like they are doing the author a favor.

Sean P. Fodera | August 9, 2006 02:32 PM

I have lost track of how many times the basic concepts and definitions of copyright law and fanfiction have been mangled in this discussion, so I'm going to try to clear them up. (My credentials for what I'm going to post are as follows: I am a 17-year veteran Contracts Director in the publishing industry, as well as a publishing rights agent, and published author. I have taught a copyright seminar for the Illinois Bar Association.)

"Fair use" refers to the usage of a limited amount of copyrighted text (or art) in a non-commercial venue for purposes of academic or critical use. These conditions are not mutually exclusive. Just because a fanfic is being used non-commercially does not mean that it is "fair use". It would only be "fair use" if it is being used for legitimate academic or critical purposes (meaning that one is teaching about, or commenting on, the original source material only). "Fair use" cannot be used as a valid justification of fanfic.

"Titles/characters cannot be copyrighted" - correct, in a limited fashion. They can be trademarked as have Star Trek, Star Wars, and any number of other media properties (I am unsure of the trademark status of various identifiers in the HP universe). However, it is, under copyright law, and as upheld in case law, illegal to use characters created by another person in new works without the explicit permission of the creator/copyright holder. Many people point to the fact that copyright owners haven't specifically denied permission for fanfic as making it valid. Not so. Under the law, the permission must be specifically granted. Silence does not impart permission.

"Fanfic is a gray legal area" - Nonesense. There is more than enough case law to show that fanfic is without any doubt illegal. I will not go so far as to call it immoral because the two are not equivalent. It's not immoral to park your car after the parking meter has run out, but it is illegal.

"Fanfic harms no one" - several major authors have had to cease publishing their own work, or shared universe anthologies as a result of fanfic abuses. It has cost certain authors and their publishers money out of pocket due to legal fees, cancelled contracts and lost sales. It has cost the fans of those writers (who are supposedly the fanfic writers themselves) the ability to read their favored author's own original work.

Separately, fanfic hurts fanfic writers, who are spending their valuable writing time on unsaleable material in other people's universes, when they should be working on their own original fiction. If you have a way with words, and a drive to write, then every minute you spend working with someone else's creations, without permission, you are wasting your talent and time.

The examples of "authorized fanfic" came up several times. THE WIND DONE GONE was not fanfic, it was supposedly intended as parody, and got slapped down hard by the courts. If a copyright holder authorizes another writer to write in their universe, the resultant work is automatically not fanfic, but a professional, authorized work.

I run into these issues at panels at conventions, and all over the internet. It amazes me that fanfic writers will spend so much time and energy debating legal issues that have been put to rest by the government and the courts. These arguments are misinformed, and do not reflect well on fanfic writers in general.

If you are going to write fanfic, go ahead. Just don't be surprised if your hero Author A asks you to stop. If you don't stop, then you obviously do not care as much about that Author or his/her works/universe as your claim.

The views in this post are entirely my own (except where they reflect the law), and not intended to reflect John's views or opinions.

John Scalzi | August 9, 2006 02:35 PM

Don't sulk, Kate! I was hoping to draw out more discussion from you, is what it was, because as a lawyer and a reader of fanfic, you have interesting things to say. And among the commenters, I think you and Ms. Horne were making the best arguments regarding the difference between fanficcing and plagiarism.

Kate Nepveu | August 9, 2006 02:42 PM

THE WIND DONE GONE was not fanfic, it was supposedly intended as parody, and got slapped down hard by the courts.

You are misinformed.

Here is the text of the 11th Circuit's opinion vacating the preliminary injunction against publication of _The Wind Done Gone_.

"We reject the district court's conclusion that SunTrust has established its likelihood of success on the merits. To the contrary, based upon our analysis of the fair use factors we find, at this juncture, _TWDG_ is entitled to a fair-use defense."

The case was subsequently dropped in return for _TWDG_'s publishers agreeing to donate money to Morehouse College, according to a news report.

I am also not clear on why you think "fanfic" and "parody" are mutually exclusive, but perhaps that is based on your mistaken understanding of that case.

Kate Nepveu | August 9, 2006 02:45 PM

Seriously, John, I really didn't feel I had anything more to say, and I couldn't understand what more you were after. (Until a mistake of fact came along to be corrected, that is.)

Lucy | August 9, 2006 02:46 PM

1. I'm interested in hearing an argument from fanficcers (or fanfic fans) as to why plagiarism in fanfic is any worse of a copyright violation (and moral issue) than the copyright violation which allows fanfic to exist at all; i.e., fanfic's original sin of misappropriating characters and settings owned by others.

I do think you're rather overstating the clarity of the legal status of fanfic, which starts out the discussion on the wrong foot. There's no universal "all fanfic is copyright infringement" rule the way you keep implying. Parody, for example, is a well-established fair use despite the fact that it appropriates copyrighted material, and there are certainly plenty of fanfics that would fall under the parody umbrella. Any fanfic based on public domain works would also, of course, not be copyright infringement.

In fact, there are strong arguments that most fanfic is fair use based on the four factors used to evaluate fair use: (1) purpose/character of the use, (2) the nature of the copyrighted work, (3) the amount taken, and (4) the effect on the potential market for the work. The fourth factor certainly weighs heavily in most fanfics' favor, and given the case-by-case nature of fair use evaluation it's really difficult to formulate any hard-and-fast rule in this area. I have yet to read a copyright case that makes me think that all suits against fanfic writers not making a profit would be slam-dunk infringement cases. The fact that C&D often scares writers into taking down their fanfic doesn’t speak to the actual decision that would result should the case get to court.

It's a big gray area, dependent on the vagaries of judicial interpretation of oft-changing copyright statutes. Plagiarism, on the other hand, is wrong regardless of the copyright status of the original work or the professional status of the writer doing the stealing. I won't get into the details of why it might be particularly troubling in this instance, but just like you don't think fanfic is a different legal category from other writing when it comes to copyright infringement, I think many people don't think it's in a separate moral category when it comes to plagiarism either. An author that has betrayed a lack of understanding of why it’s wrong seems likely to repeat the behavior in any number of other contexts.

Sean P. Fodera | August 9, 2006 03:00 PM

Kate: Note that being entitled to use "fair use" as a defense is not the same thing as saying that it was "fair use". Ultimately, the book is not fanfic, and they did end up settling the case by paying out money.

As for "fanfic" and "parody" being mutually exclusive, I never said that. Some fanfic certainly is parody (in some cases, achingly so). In others, the works are intended as sincere extensions of the writer's universe, and do not have the benefit of claiming parody as a defense.

John Scalzi | August 9, 2006 03:01 PM

Lucy:

"There's no universal 'all fanfic is copyright infringement' rule the way you keep implying."

I've not made such implication. I stated in the original article that "Almost all of it is entirely illegal to begin with," which is an entirely different assertion, and as I've noted before (and Sean Fedora, a lawyer with copyright experience, echoes in his post), the "grey area" which fanficcers wish to suggest exists -- and wish to suggest in which their work resides -- is rather more constrained than they would choose to believe.

As I've said before, personally I don't have problems with fanfic, but I think the sooner fanficcers stop deluding themselves that they have a legal right to write Harry Potter stories (or whatever), the less chance that they will have reality rear up and smack them in their faces. Once again, fanfic is not a special case under copyright law, as far as I understand it, and therefore the general case law of copyright doesn't give it much room to wriggle about.

Kate Nepveu:

"Seriously, John, I really didn't feel I had anything more to say, and I couldn't understand what more you were after."

On the latter, it's probably my fault in poorly communicating. My apologies, Kate.

Sean P. Fodera | August 9, 2006 03:05 PM

Lucy:

Fair use only applies to the actual reusage of the words from the original. It does not apply to derivative works, which is what fanfic is. Fanfic has absolutely no claim to fair use under the law.

Sean P. Fodera | August 9, 2006 03:11 PM

One clarification, John. I am not a lawyer, though I have taught lawyers about copyright law. I am a Publishing Contracts professional with enough years of practical copyright experience that makes most intellectual property lawyers look like ambulance chasers.

If I were a lawyer, I'd have filled my posts with plenty of case law and references that would probably be incomprehensible to the average person (be they writer, fanficcer or layman). As such, I try to explain a simple, non-gray-area in the simplest terms.

Kate Nepveu | August 9, 2006 03:15 PM

Sean: you said _TWDG_ "was not fanfic, it was supposedly intended as parody," which seemed to me to be setting up a dichotomy between the two. Apparently that was not what you intended.

And my point is that the court's decision was not the same as "got slapped down hard by the courts."

You'll note that the settlement went to a charity, not to the Mitchell estate; I suspect that _TWDG_'s publishers determined that it would cost less for that than to litigate the case on remand. Regardless, what we are left with is the 11th Circuit's decision, which vacated the preliminary injunction with these words:

"Thus, a lack of irreparable injury to SunTrust, together with the First Amendment concerns regarding comment and criticism and the likelihood that a fair use defense will prevail, make injunctive relief improper and we need not address the remaining factors, except to stress that the public interest is always served in promoting First Amendment values and in preserving the public domain from encroachment."

(Emphasis added.)

You are claiming that various people in this debate are misinformed, and thus it would be a good idea if you yourself were properly informed about the case you are discussing.

John Scalzi | August 9, 2006 03:17 PM

Sean P. Fedora:

Clarification noted, and with thanks.

Kate Nepveu | August 9, 2006 03:42 PM

Further comment that slipped in while I was composing the last one:

Fair use only applies to the actual reusage of the words from the original. It does not apply to derivative works

Here is the definition of "derivative work":

"A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a 'derivative work'."

That definition includes works with "actual reusage of the words." So, first, you're wrong about what derivative works *are*.

Second, I would like to know what you're relying on when you say that "fair use" doesn't apply to derivative works. Again, that statutory section starts out,

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

One of the "means specified" by section 106 is the creation of derivative works.

Further, on a quick look, I see at least one case that's considering whether fair use applying to derivative works, and while it rejects the application, that's on the facts and not because fair use _itself_ doesn't apply _generally_ to derivative works. So, tell me: where are you getting this idea?

(Beanie Babies; the text of the 7th Circuit decision remanding the case is here. On remand, the District Court eventually granted summary judgment on the copyright aspects (333 F. Supp. 2d 705), but again after *considering* fair use factors, not after saying "nope, fair use doesn't apply to derivative works.")

Mitch Wagner | August 9, 2006 03:43 PM

Sean Fodera: I believe you have made two errors of fact in your summary of copyright law, and expressed one opinion that's, quite simply, wrong.

The two errors of fact:

"Fair use" refers to the usage of a limited amount of copyrighted text (or art) in a non-commercial venue for purposes of academic or critical use. These conditions are not mutually exclusive. Just because a fanfic is being used non-commercially does not mean that it is "fair use". It would only be "fair use" if it is being used for legitimate academic or critical purposes (meaning that one is teaching about, or commenting on, the original source material only). "Fair use" cannot be used as a valid justification of fanfic.

Emphasis added by me.

Maybe this isn't an error of fact--maybe "non-commercial venue" is a term of art, and I'm misunderstanding it.

What I'm getting at here is that fair use applies even if the academic or critical use appers in a commercial work. The New York Times does it every day in its reviews sections.

The examples of "authorized fanfic" came up several times. THE WIND DONE GONE was not fanfic, it was supposedly intended as parody, and got slapped down hard by the courts. If a copyright holder authorizes another writer to write in their universe, the resultant work is automatically not fanfic, but a professional, authorized work.

The Wind Done Gone case was settled, and therefore has no bearing whatsoever on precedent.

That makes Kate wrong too, I believe. Since the matter never reached final adjudication, there was no precedent. Neither side of this discussion can cite The Wind Done Gone as precdent.

Separately, fanfic hurts fanfic writers, who are spending their valuable writing time on unsaleable material in other people's universes, when they should be working on their own original fiction. If you have a way with words, and a drive to write, then every minute you spend working with someone else's creations, without permission, you are wasting your talent and time.

A common belief among people who oppose fanfic. But nonsense. The same thing is often said about blogging, and posting comments on blogs, which means that you and I are both hurting ourselves, wasting our valuable time when we should be doing more worthwhile work, and every minute we're spending here is a waste of our talent.

My $0.02 on blogging, posting comments on blogs, and all other nonprofessional writing: It sharpens the mind and prose skills, and, if written for public consumption, stimulates others, and is therefore entirely salubrious and healthful.

My $0.02 on fanfic: I don't read the stuff, I don't write it (except for once, when I was, like, 13 years old, and I wrote a complete Star Trek screenplay--having read The Making of Star Trek, The World of Star Trek, and The Trouble With Tribbles by then, I even used correct screenplay format!). But some of my favorite people in fandom do write and read fanfic.

I figure the system that has evolved by custom works just fine: Much of it is either outright illegal, or of questionable morality, but it's mostly ignored by the authors who own the copyrighted work. It's nobody's business but the fanficcers, and the copyright holders, and if they're content with the situation, then everybody wins.

Here's an analogy to throw at you: I went to college in the early 1980s, and was friendly with a couple of guys on the campus police department. They told me that it was unwritten, but firm, policy that they wouldn't arrest anyone for personal use of marijuana or hashish. Any student or faculty member on campus was free to keep and use small amounts of marijuana, discreetly, for personal enjoyment. Moreover, the campus police would look the other way at anybody dealing small amounts of pot or hash for themselves and their friends.

Kate Nepveu | August 9, 2006 03:44 PM

Sorry, I forgot to say that you can find the text of the statutes I'm referring to at the Copyright Office; read it for yourself and decide!

Lucy | August 9, 2006 03:46 PM

Sean: It's my understanding that fair use applies to all the exclusive rights granted in section 106, which includes far more than just derivative works. Fair use can be raised as an affirmative defense after a finding of infringement, and I don’t believe that is limited to only infringement of the reproduction right.

As Kate noted above, the 11th Circuit did find that "The Wind Done Gone" deserved protection as a parody under fair use, though they remanded because the main issue was actually the preliminary injunction that had been granted. The court's fair use analysis dealt with both the sections copied directly and the much larger portions of the book that use borrowed characters and plots. They specifically dealt with the question of how the book would affect the market for other derivative works of "Gone With the Wind." Am I misunderstanding this decision? Can you point me to something that says that fair use is only limited to verbatim copying?

Kate Nepveu | August 9, 2006 03:50 PM

Mitch: It's usually the *fact* that one's settled a case that's not allowed to be used as a precedent--IOW, that you settled one case can't be used against you to show that you did something wrong in anothe case with similar facts.

The 11th Circuit's decision was published, was not vacated, and is still being cited for its comments on parody.

John Scalzi | August 9, 2006 04:03 PM

Mmmmmm.... legal detail goodness.

Stan | August 9, 2006 04:23 PM

(I neither read nor write fanfic but know many who do.)

Sean P. Fodera: "Separately, fanfic hurts fanfic writers, who are spending their valuable writing time on unsaleable material..."

That's a very limited view of writing. A great deal of writing is done with no intent of making money or even as practice for making money.

Of those I know who write fanfic, they have no intention of becoming professional writers. It's just a way to have fun and a way of saying to friends "look what I did!" From their perspective it's not much different than playing a game with no intent of becoming a game designer or playing cards with no intent of being a professional poker player.

In the field of webcomics, a fanstrip or making use of someone else's character for a cameo is almost always considered a big compliment - someone was inspired enough by their creation to do something with it. But this might be largely because it's an almost entirely amateur field (in terms of pay, not quality).

Yea, none of this has bearing on the legal issues, I was just trying to illustrate the fanfic mindset.

Suela | August 9, 2006 04:43 PM

Contrary to Mr. Fodera's assertions, no court has yet ruled on the legality of fanfiction qua fanfiction--non-commercial properly-disclaimed non-plagiarizing fiction based on someone else's characters and world-building. The reasons for this have more to do with the fact that hardly any fan is in the position to challenge a C&D letter than an admission that the activity is outright illegal.

As an aside, I've read perfectly spectacular fanfiction that tells a great story without naming the characters or describing the setting: if the meaning of the story comes purely from the reader's understanding of the context, and the story itself contains nothing explicitly derivative, is it illegal?

Food for thought.

Suela | August 9, 2006 04:53 PM

Hmm. Apparently I screwed up by posting that link. Please feel free to delete or edit the comment as you choose.

Joe Rybicki | August 9, 2006 04:55 PM

This:

When someone releases a work to the public, that work becomes part of the culture. [...] In a sense, once something is released in the wild, it ceases to belong exclusively to the author/creator and belongs, at least in part, to the larger society.

...just kills me, every time.

So, because I take my car out of the garage, it's morally justifiable for other people to borrow it without asking?

That's not even taking into account the fact that a copyright holder built the car himself and, furthermore, relies upon that car to put food into the mouths of his children.

The fact that this property is not physical does not make it any less property, nor does it make it any less morally reprehensible to use it without the author's permission.

Now, please don't think I'm speaking in favor of draconian copy protection or other equally ridiculous flailings of a terrified corporate-art world teetering on the edge of its own obsolescence. Because I have just as much right to loan my car out if I so choose as I have a right to keep it all to myself. The point is, the author -- the painter -- the composer -- what they create, they own, and they have a right to decide what happens to it. That's what copyright law is designed to protect.

Mike Kozlowski | August 9, 2006 05:11 PM

I suspect that the amount of outrage you have is going to depend on whether you think of fanfic as a Valid Art Form with serious people, or if you think it's just a bunch of teenage girls playing literary dress-up with their favorite dolls. I'm firmly in the second camp, so the idea that they stole a dress pattern from a famous designer when they were playing around doesn't really make me care.

I mean, I know what kind of plagiariciously derivative crap I was writing when I was a kid (in retrospect, having a character named "Mandorallen" in a Celtic themed (oh, let's be honest: it was Lloyd Alexander's Prydain) short story written for English class was not my highest point), so it's hard to get worked up about somebody else doing the same thing in public. Probably more embarrassing for them, but you've almost got to be immune to embarrassment if you're writing Harry Potter fanfic.

Also, man, are Harry Potter fanfic people the Lords of Internet Drama or what?

Jon Marcus | August 9, 2006 05:14 PM

John

John, you've strongly implied that you think fanfic is morally wrong, even with the tacit approval of a work's creator. (e.g. "I'm not inclined to pretend that [fanfic's] got a...moral leg to stand on") Is that an accurate reading, or am I misinterpreting you?

Assuming that's an accurate read, can you explain why? Your answer to Fuz was glib and unconvincing:

Fuz:
"Does the moral value of fanfic change based on whether the original work was written before 1923?"

Scalzi:
Sure, if you believe that following the laws of your nation has in itself some moral value.

I'm going to guess that you wouldn't consider driving 5 MPH over the speed limit, or using a vibrator, or giving women the vote immoral. Yet those are/have been illegal at various times times and places in this nation.

Laws are whatever Mickey Mouse's lobbyists have managed to buy. I don't know much about copyright, but I'm willing to accept your assertion that fanfic is illegal. But necessarily immoral? Why?

Patrick Nielsen Hayden | August 9, 2006 05:18 PM

Sean Fodera:

"[...] fanfic hurts fanfic writers, who are spending their valuable writing time on unsaleable material in other people's universes, when they should be working on their own original fiction. If you have a way with words, and a drive to write, then every minute you spend working with someone else's creations, without permission, you are wasting your talent and time."

Sean is a nice guy who works in the same building I do, but this is meretricious baloney. It assumes as a matter of course that the only conceivable reason to make stories is to pursue a career as a professional writer in the context of modern commercial publishing.

BRITANNUS (shocked): Caesar, this is not proper.

THEODOTUS (outraged): How?

CAESAR (recovering his self-possession): Pardon him, Theodotus: he is a barbarian, and thinks that the customs of his tribe and island are the laws of nature.

That quote from Shaw's Caesar and Cleopatra was used by Robert A. Heinlein as the epigraph to Glory Road, and it's entirely pertinent to this argument.

Human culture has always been and always will be larger than any local set of trading arrangements, and people have always and will always do things for more reasons than merely to sell something. Most of the storytelling done by human beings, through most of human history, has been in contexts entirely foreign to modern commercial cultural production. A great deal of it has entailed telling new stories about old characters. This is true whether Sean Fodera approves of it or not.

I'm not interested in mounting a comprehensive defense of fanfic, but if I ever do, it will be because I've had it up to here with seeing people hectored about what kinds of storytelling are and aren't good for them. Our capacity for creative play is a gift. If Sean Fodera or anyone else tells you they know exactly what it's for, and what kind of play is and isn't "wasting time," they're talking through their hat. Just as Sean Fodera cites his own experience as a (quite capable) publishing contracts professional, I'm citing my own professional competence: For a living, I work with creative people. And I know that the bird of paradise doesn't always follow the local rules.

Martin McCallion | August 9, 2006 05:19 PM

John:

"Dismissed him" is a bit harsh. The answer was simple: Yes, characters are protected by copyright.

It was fairly dismissive in tone, but no worries. I had a look around the copyright site you linked to. I'm not a lawyer, but I couldn't find anywhere where it makes it explicitly that characters and/or situations are, in fact, copyright. However, I'll happily bow to your superior knowledge and that of the later commenter, Sean P. Fodera, who said that the copyright status of characters is supported by case law (though still later comments have perhaps undermined his point somewhat).

However, I'd still be interested in your opinion, John, and anyone else's, as to what it takes to define a character. I suspect that calling a starship captain "Kirk", and his ship the "Enterprise" would be problematic; but what if those were the only points of contact with the Star Trek universe? What if the ship was called something else, but the captain had very similar characteristics to the Kirk we know?

I suspect that the legal line would be crossed at some point, but that point has never been determined; and that attempting to determine it would only enrich the lawyers.

Sean P. Fodera also said:

several major authors have had to cease publishing their own work, or shared universe anthologies as a result of fanfic abuses.

I'd be interested in seeing citations for some of those.

Mitch Wagner | August 9, 2006 05:32 PM

What if, for instance, your name was David Gerrold, and you called your starship captain Jonathan Corie?

Mitch Wagner | August 9, 2006 05:44 PM

Argh, I made an egregious error in my post earlier today. I wrote, regarding whether fanfic is right or wrong:

"I figure the system that has evolved by custom works just fine: Much of it is either outright illegal, or of questionable morality.... "

I meant to say "questionable legality." Because my point is that if the fanficcers are fine with the current situation, and the owners of the copyright aren't complaining, then there's nothing immoral going on.

Emily | August 9, 2006 05:49 PM

John said: "[S]hould what an author does within the confines of the fanfic sandbox have any effect on what happens when they start to do original fiction?"

Generally, no, except that the reputation of that author will be remembered by those that read his/her fanfic, and that reputation will probably be spread, for good or for ill (as is happening now). In this particular instance, I'm aware of a few people who were familiar with the author's tendency to plagiarize in her fanfic. They took a look at the plot synopsis on this person's website and noticed clear similarities to works by Joss Whedon and Sherrilyn Kenyon. At that point, there was a general, "Oh, God, here we go again!" reaction. I think that the reason it's all being dragged up again is under the theory that "the best defense is a good offense". Fanficcers are tired of being judged negatively and certainly want the word out that they don't condone plagiarism any more than any other writing community.

Denny Upkins | August 9, 2006 06:01 PM

Well said. I couldn't agree more with what you wrote.

And you used the word kerfuffle. That is too awesome.

John Scalzi | August 9, 2006 06:05 PM

Jon Marcus:

"John, you've strongly implied that you think fanfic is morally wrong, even with the tacit approval of a work's creator."

Not really. In itself don't find it morally compelling one way or another. I think one could argue that people who knowingly create fanfic contrary to the wishes of the copyright holder are acting immorally, of course.

I'm not responsible for what people think I'm implying; I wish people would focus on what I actually say.

On the same tip, you're assuming my response to Fuz is indicative of my personal opinion. It's not; it's merely answering the question -- if you believe that following the law has inherent moral value, then yes, there's a moral difference between pre-and-post-1923 derived fanfic.

Martin McCallon:

"It was fairly dismissive in tone"

No. Also, you're not qualified to state whether it was or not because you're not the one who wrote it. Don't mistake a short answer for a dismissive answer.

"I'd still be interested in your opinion, John, and anyone else's, as to what it takes to define a character."

"Name, backstory, context" are the short answer to that (at least, they would be for me). If you create a character named "John Perry" who lived in "Ohio" but now "fights aliens out in the universe," I've got a reasonable infringement case against you. If you've got a character named "James Cook" who lived in "Indiana" but now "fights aliens in the cross-dimensionverse," you'd be merely derivative. In which case, really, like I care.

Emily:

"Generally, no,"

Scratch the "Generally" before that and you have the right answer, Emily. What the author has done in fanfic has nothing to do with what the author may or may not do in original fiction. They're separate writing spheres.

If the HP fanfic community has a problem with this author as a fanfic writer, fine. Trying to blacken her reputation as a professional writer in the absence of evidence and in apparent ignorance of what plagiarism is (having "similiar ideas," for example, is not plagiarism) is pretty damn odious.

Anne C. | August 9, 2006 06:17 PM

"I'd still be interested in your opinion, John, and anyone else's, as to what it takes to define a character."

"Name, backstory, context" are the short answer to that (at least, they would be for me)"

I would add personality, body language, and voice for any character that's not set dressing. These characteristics are, in my opinion, the hardest to get realisitic and therefore the most likely to be copied.

Azalais Aranxta | August 9, 2006 06:18 PM

"Mash-up" is a pretty good description of what it was, actually, only textually and not musically. The problem is:

1) she didn't call it that or get permission from the person she took the biggest chunks of till after it went up, which in the whole "honour amongst thieves" culture of fanfic is generally considered kinda skeezy;

and

2) there are a bunch of petty, small minded self-identified 'wankers' with personal grudges against her and against the woman who organised the first large HP con in the USA, who is her friend, who want to ruin her life or at least her writing career. One common justification is that plagiarism is a one-time and you're finished for life offence. All I can say to that is, thank G-d the internet didn't exist when I was 12, because I'd hate to be judged by what I'd have posted then. Another less commonly admitted reason is that they're all jealous that her friends and fangirls pooled money and bought her a laptop when hers was stolen.

I would bet that a lot of the email you got was from these 'wankers' even though they love to make fun of your column in their little clubhouse website, because they'd like it if you (someone they also like to make fun of) and [author name deleted by JS] got into it in public.

Thank you for not doing so.

Emily | August 9, 2006 06:19 PM

John: I'm wondering where the charge of "apparent ignorance of plagiarism" is coming from. Agreed, having similar ideas is not plagiarism. I'm not sure if you're talking about what the HP community had to say about her fanfic or the writeup of her original work, so I'll stop until I know.

Lucy | August 9, 2006 06:21 PM

The fact that this property is not physical does not make it any less property, nor does it make it any less morally reprehensible to use it without the author's permission.

Actually, Joe, the thing is that it is different. American copyright is not based on the creator's moral rights to absolute control of his creation; it's based on the desire to enrich public discourse and culture. Copyright is meant to offer control only insofar as it helps the public in the long run; that is, it is meant to offer an incentive to create and thus inject new ideas and works into our culture.

Martin McCallion | August 9, 2006 06:21 PM

you're not qualified to state whether it was or not [dismissive in tone] because you're not the one who wrote it.

That's an interesting opinion. I'd have thought that critics describe an author's tone all the time. However:

Don't mistake a short answer for a dismissive answer.

That's a fair point.

"John Perry" who lived in "Ohio" but now "fights aliens out in the universe," I've got a reasonable infringement case against you.

I take it that here you are compressing the backstory significantly, as I can't imagine that just those three points would be sufficient for a court. But I see what you're getting at.

Anne C. | August 9, 2006 06:26 PM

"I take it that here you are compressing the backstory significantly, as I can't imagine that just those three points would be sufficient for a court. But I see what you're getting at."

Oh, I see. You were asking the question for identification purposes. Ignore my answer, you're not going to get a measurable statistic on the qualities that make a character three dimensional. Apologies for the misunderstanding.

Kate Nepveu | August 9, 2006 06:32 PM

I am vastly amused that the first person to name in-text the author involved is one of her defenders. But that's just me.

Two other things:

First, I seem not to have explicitly said this above, so:

I would also argue that _The Wind Done Gone_ is a derivative work, which as stated above it entitled to use the fair use defense. There is no explicit statement in the 11th Circuit opinion linked above that "_TWDG_ is a derivative work," but the Court said it was "admittedly based on," so perhaps they thought it too obvious to say. At any rate, I don't see any reasonable reading of the definition of derivative work that would exclude it.

(The 7th Circuit case about Beanie Babies *does* have an explicit statement that the photos in question were derivative works, which is why I cited it.)

Second, I'm not challenging Sean Fodera's expertise but his statement here.

Kate Nepveu | August 9, 2006 06:32 PM

Statements. Darn it.

Lucy | August 9, 2006 06:37 PM

If the HP fanfic community has a problem with this author as a fanfic writer, fine. Trying to blacken her reputation as a professional writer in the absence of evidence and in apparent ignorance of what plagiarism is (having "similiar ideas," for example, is not plagiarism) is pretty damn odious.

Have you actually seen the pages of comparisons that demonstrated that whole sections were taken word for word? That's what has really caused the ruckus, as far as I can tell. The charges are not that she merely had similar ideas, but rather that she borrowed so many direct quotes and passages that it's not actually clear whether any significant portion was written by the person claiming to have authored it. I figure if we're going to get into the details of the case we should at least be accurate as to what sorts of charges have been brought (there are links I could give you that back this up, but I know you asked us to stay away from that sort of material).

Dave Smith | August 9, 2006 06:53 PM

Before we get out of control saying things like:

Have you actually seen the pages of comparisons that demonstrated that whole sections were taken word for word?

I think when Scalzi said:

Trying to blacken her reputation as a professional writer in the absence of evidence and in apparent ignorance of what plagiarism is (having "similiar ideas," for example, is not plagiarism) is pretty damn odious.

... he was responding to Emily saying:

They took a look at the plot synopsis on this person's website and noticed clear similarities to works by Joss Whedon and Sherrilyn Kenyon.

I could be wrong, but that's what I got. What Emily said above is not plagiarism, just as Scalzi said. Though the fanfic in question is a completely different matter.

jennifer, aka literaticat | August 9, 2006 07:01 PM

I'm sure that the good folks at S_____ are well aware of the author's history, AND are sensitive to the issue, AND will be going over the ms with the proverbial f.t.c. ... because they aren't going to risk getting sued.

I don't quite understand why people would feel the need to "blow the lid off" the situation. The general, non-fandom public won't care what a bunch of internet whackadoos say. This "negative" campaign will either have no effect or will backfire. (No publicity is bad publicity, &c)

As for the publisher - they want to move units, not debate philosophy. It's good business for them to cultivate an author like this, period.

After all, s/he is bright, articulate, has a big personality, is good at storytelling, and beyond all of that, has a huge following of people that will buy and adore the book no matter what the naysayers think.

Joe Rybicki | August 9, 2006 07:07 PM

Lucy:

American copyright is not based on the creator's moral rights to absolute control of his creation; it's based on the desire to enrich public discourse and culture. Copyright is meant to offer control only insofar as it helps the public in the long run; that is, it is meant to offer an incentive to create and thus inject new ideas and works into our culture.

I'm curious how you came to that conclusion, especially given that copyright is explicitly extended to unpublished works. Not being snarky, just genuinely curious.

Emily | August 9, 2006 07:08 PM

No, the plot synopsis is definitely not plagiarism. The published original work may be entirely that--original. However, I don't think anyone is racing to judgment on the original work so much as they are noticing worrisome (to them) similarities between the synopsis and the work of others and bracing for the possible storm once the original work is published. Are these people getting ahead of themselves? Possibly. Are they trying to blacken her reputation as a professional writer? Some are, yes. Are they wrong to do so? Maybe that's the question.

On that subject, I have this to say. I was in a nonfiction workshop in college. One of the other workshop participants turned in an absolutely beautiful essay about her struggle with bulimia. Other than a few quibbles over details, we loved it and told her to change nothing and see about getting it published. A few months later, I bought the Anne Lamott book Traveling Mercies and read the same essay. More even than being angry, I was deeply hurt. I had praised this writer for her work, her courage as a writer to tackle such a personal, painful topic and craft her words about it so skillfully. When I found out they weren't her words at all, I felt betrayed. If I found out that she had a book coming out, I'd be wary. I think that's how the people crying "Plagiarist!" in front of this writer feel. They don't want anyone else to fall in love with this writer's work and then discover that the best bits of it belong to someone else entirely. I can wish that they'd be more merciful and bide their time until the book is actually released, but I don't blame them for wanting to spread the word.

John Scalzi | August 9, 2006 07:28 PM

Emily:

"I'm not sure if you're talking about what the HP community had to say about her fanfic or the writeup of her original work, so I'll stop until I know."

In that particular case, I'm discussing the original work of the author.

"Are these people getting ahead of themselves? Possibly. Are they trying to blacken her reputation as a professional writer? Some are, yes. Are they wrong to do so? Maybe that's the question."

Well, I do think they are wrong to do so, in the absence of fact regarding the original work.

AA:

"I would bet that a lot of the email you got was from these 'wankers' even though they love to make fun of your column in their little clubhouse website"

Well, if they do, let them make fun. What do I care?

Martin McCallon:

"That's an interesting opinion. I'd have thought that critics describe an author's tone all the time. "

They might; the author might also correct them by pointing out that the critic was not in their head at the time. Speaking as a professional critic of some 15 year's standing, I can attest that none of the ones I know, including myself, have ever been particularly gifted in reading minds.

Speaking as a critic, I do try to avoid intimations of mind reading -- I use the word "seems" a lot.

Patrick Nielsen Hayden | August 9, 2006 08:00 PM

Lucy's claim about the basis of American copyright law is rooted in Article 1, Section 8 of the United States Constitution, where Congress is empowered "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." A fair amount of legal theory and, for that matter, case law, has hinged on the fact that the Constitution goes out of its way to specify that, in the Founders' view, copyright isn't there as an entitlement for creators and their assigns; it's there as a means to a general social good. Lucy is quite right that the general European legal theory is exactly the opposite. The irony is that, according to the usual cliched views of how Europeans and Americans think, the two sides should each have the other's legal theory on this particular issue.

Lucy | August 9, 2006 08:10 PM

I'm curious how you came to that conclusion, especially given that copyright is explicitly extended to unpublished works. Not being snarky, just genuinely curious.

As Patrick said, it's based on the wording of the Copyright Clause in the Constitution (sorry, I should have said that explicitly for clarity's sake). The reason things like parody and criticism are carved out as exceptions to infringement is because that sort of commentary is helpful to society, much more than allowing the author to prevent them would be. We have only very limited protections in only a few specific places for moral rights like proper attribution, and those are all based on statutes in which Congress went out of its way to provide for them due to certain attributes of those areas.

Also, an important thing to note was that, until very recently and in deference to much of the confusion that the bifurcated system was creating, unpublished works were only granted copyright under state common law, not federal statutory law. Arguments about the purpose of the copyright clause would have to take this into account, I think.

Lucy | August 9, 2006 08:15 PM

Also, an important thing to note was that, until very recently and in deference to much of the confusion that the bifurcated system was creating, unpublished works were only granted copyright under state common law, not federal statutory law.

Hmm, sorry, that sentence came out somewhat twisted. The "in deference to the confusion" part was meant to modify why the change took place, not why the unpublished works were only covered by state law.

Annalee Flower Horne | August 9, 2006 08:18 PM

First of all, regarding the accusation that Fandom_Wank members have some conspiracy against John Scalzi: the members of the community that I know have never once mentioned your name where I could see it in a negative way. In fact, it's their positive mentions that lead me to come check Whatever out and start loitering around your comments page in the first place (wait... that's probably points against them too. Nevermind). The idea that they have secret club meetings about how to generate drama between BNFs or BNFs and pro authors is ridiculous. People that do that sort of thing end up on Fandom_Wank.

As to the whole "fanfic hurts fanfic writers" thing, I've always found that argument rather contrary to my own experience. I used to write fanfiction (and because this is a just and merciful universe, it's never coming out of the dark reaches of my harddrive). I don't any more, because I'm too busy working on a story that has a snowball's prayer of someday acquiring that coveted 'new book smell,' but writing fanfiction in no way hurt me as a writer. Quite the contrary, in fact.

Yes, it's true that fanfiction is unpublishable. But the sad fact is that most original fiction is also unpublishable, and no one's claiming that it 'hurts writers.' Learning to write requires practice, and fanfic can serve as practice just fine. To write either fanfic or original fiction well, you have to understand the basic dynamics of plot. You have to know how to string words into sentences and sentences into paragraphs. You have to know how to keep characters consistant, how and when to show instead of tell, how to discipline yourself to actually get a whole story written out, how to handle exposition, and how to make dialogue sound both engaging and believable.

You might not need to know how to world-build to write fanfic, but you don't need to know how to world-build to write