Crimes of Fanfic

A couple of e-mails have come in recently – whether independently or coordinated, I can’t say — asking me if I had any comment about what seems to be a long-running kerfuffle in the Harry Potter fandom about a particular fanfic author who allegedly plagiarized other works in the construction of her own fanfic story. As evidence of this I was presented with a whole bunch of links that turned out to be really tremendously not useful 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.

The wrinkle is this particular fanfic author is in the process of crossing over to writing original material, and I can only assume that these folks e-mailing me about the kerfuffle want to blow the lid off of this writer’s alleged previous sins before she escapes into the real world. The e-mails hinted that this was something along the line of Lori Jareo or Kaavya Viswanathan, the former being a case where someone was stupid enough to try to commercially publish their fanfic, and the latter being a case where an author put forward an original work, portions of which were plagiarized from other novels.

Well — and bear in mind that I’m working from a bunch of links and LiveJournal hissy fits that I fully admit I can’t find a coherent thread in — I’m not feeling a whole bunch of outrage here, nor frankly do I find that a) what this fanfic writer has allegedly done has any consequence outside fanfic circles, or b) that this fanfic writer needs to be punished or humiliated prior to their formal publication. This writer may or may not have plagiarized other works in their fanfic — I can’t tell at a glance, nor am I inclined to research the matter to any great length — but if they did, I’m hard-pressed to see why it matters in the larger scheme of things.

Let’s remember one fundamental thing about fanfic: Almost all of it is entirely illegal to begin with. It’s the wild and wanton misappropriation of copyrighted material (I’m sure there is fanfic that features public domain characters, just not nearly as much as there is of, say, Harry Potter fanfic). Copyright holders may choose not to see it, or may even tacitly encourage it from time to time, but the fact of the matter is that if you’re writing fanfic, you’re already doing something legally out of bounds. And, really, if you’re already wantonly violating copyright, what’s a little plagiarism to go along with it? Honestly. In for a penny, in for a pound.

I recognize this attitude probably won’t sit well with fanficcers, but this is really an “honor among thieves” sort of issue, isn’t it? If you’ve already morally justified intellectual theft so you can play with Harry and Hermione and Draco and whomever else you want to play with, I’m not entirely sure how one couldn’t also quite easily justify taking juicy chunks of other people’s text to play with as well. Think of it as the literary equivalent of a “mash-up,” if you will. Everyone seems to think The Gray Album was a perfectly fine thing to do (well, except EMI), so how is this any different? As long as it all takes place within the confines of fanfic sandbox, it’s all pretty much the same, morally and legally speaking. Out in the real world, I take plagiarism rather very seriously, but then, out in the real world, I take appropriation of copyright seriously as well. If fanficcers want me to oblige their outrage about fanfic plagiarism, I suppose I would have to ask how it is essentially more serious than the appropriation of copyrighted characters and settings, and how if I must criticize one why I am not also therefore obliged to criticize the other.

On the other portion of the issue, should what an author does within the confines of the fanfic sandbox have any effect on what happens when they start to do original fiction? I think not, personally. What happens in fanfic, stays in fanfic. I’m perfectly content to think of fanfic as a sort of free play area where anything goes and what goes on has no bearing in the real world of writing. No harm, no foul. In the case of this particular author, if the original fiction they’re working on turns out to be chock full of plagiarism, that’s another discussion entirely. But since the original fiction isn’t even out yet, there’s nothing to suggest that it is, and I don’t think it’s useful or fair to the author to make such a suggestion or implication.

I’m not a fanficcer, and while I have a generally have a very relaxed attitude toward to the concept of fanfic and find it largely beneficial to the well-being of any media property’s longevity, I’m not inclined to pretend that it’s got a legal or moral leg to stand on, either. So, at best, the response I have to people engaging in intellectual theft complaining about other people engaging in alleged intellectual theft is amusement, followed by mild confusion as to why I should care. In any event, in this particular case, I’m not in the least bit inclined to name the parties involved in this kerfuffle, or to condemn them. This is one literary crusade that will have to get along without me.

317 thoughts on “Crimes of Fanfic

  1. 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

  2. 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).

  3. 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.

  4. 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?

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. “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.

  11. 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.

  12. 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

  13. 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.

  14. 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.

  15. ebear:

    “I thought OMW *was* fanfic!”

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

  16. 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_.

  17. (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.)

  18. 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.

  19. 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

  20. 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.

  21. “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.

  22. (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?

  23. 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.

  24. 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.

  25. 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.)

  26. 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.

  27. 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.

  28. 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.

  29. 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.

  30. 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?

  31. 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.

  32. 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.

  33. 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.”

  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. 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).

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

  40. 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.

  41. 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?

  42. 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.

  43. 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.

  44. 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.

  45. 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?”

  46. 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.

  47. 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.

  48. 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.

  49. 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.

  50. 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.

  51. 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.

  52. 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.

  53. 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.)

  54. 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.

  55. 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.

  56. 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.

  57. 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.

  58. 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.

  59. 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.

  60. 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.”)

  61. 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.

  62. 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?

  63. 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.

  64. (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.

  65. 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.

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

  67. 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.

  68. 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?

  69. 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?

  70. 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.

  71. 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.

  72. 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.

  73. 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.

  74. 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.

  75. “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.

  76. “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.

  77. 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.

  78. 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.

  79. 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.

  80. “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.

  81. 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.

  82. 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).

  83. 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.

  84. 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.

  85. 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.

  86. 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.

  87. 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.

  88. 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.

  89. 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.

  90. 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.

  91. 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 original fiction either if it’s set in the real world. You do have to know how to research a world and how to keep it consistant, which are both handy skills to have as a ‘real’ writer. And disecting someone else’s world, rather like disecting someone else’s poem or painting or novel, teaches you about how it’s done.

    And yes, maybe people could get the same practice by working exclusively on original fiction, but I actually don’t think I ever would have. Writing fanfic was a way to give myself permission to suck. When I first started out, I’d try to write original fiction and think “This is going to suck and everyone’s going to hate it.” When I wrote fanfiction, that became “this is going to suck and no one’s ever going to see it.”

    The fanfic that I wrote before I kicked my ‘real writing’ into high gear would be no more publishable if it were original than it is now. I don’t try to get my English papers published either, but that doesn’t mean they weren’t beneficial to my development as a writer.

  92. Annalee Flower Horne:

    “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.”

    I’m vaguely surprised I’m on any fandom radar at all, honestly; my work so far as I know is not fandom-attractive as far as I can see. Now, the provocative nature of this particular entry notwithstanding, I’m generally fanfic positive, so I’m not entirely sure why fanficcers would nurse any hostility toward me. But if they do, that’s life. You can’t please everyone. I learned a while back not to worry about making everyone happy.

  93. Actually you are very well liked. I have never seen anyone ever truly say anything negative about you.

    The other poster was wrong saying that you were being wank.

    From the discussion I have seen people weren’t too keen on being called thieves but they are generally liking the discussion, it’s informative and important.

  94. Erika:

    Well, that’s good to know. And indeed, I was intentionally pushing buttons a little harder than I might otherwise in the original post (and in this thread) in the hope that we’d get some good discussion and useful discussion here. I think we have via Kate Nepveu, Annalee Flower Horne and several others.

  95. May I also say that I have developed a huge crush on Fuzzy for the whole “John Scalzi’s iPod is awesome.”

    :)

    Do you have an iPod? I know some writers like to write their stories with certain music, and I can’t for the life of me remember you discussing music and writing, perhaps you could do so for another post?

  96. John (and anyone else): What are your thoughts on a person’s reputation as a plagiarizer following them throughout their career? Do you have a problem with the doomsayers’ actions only because they’re acting before having read the original work, or also because the accusations of plagiarism originated in fanfiction?

  97. There may come a time in the not-too-distant future when painting Mickey Mouse on your kids wall is considered “Intellectual Property Theft”. Just because something is illegal, doesn’t mean that the law itself is reasonable.

  98. Emily:

    In this particular case, I have a problem with what I perceive is an attempt to attack someone’s reputation as a creator of original work, in the absence of any useful knowledge about the work in question.

    Moreover, I do make a distinction between amateur work and professional work. Without making excuses for alleged plagiarism in this author’s fanfic, nothing I’ve seen or read suggests that as a professional, this author is anything but professional, and I don’t see why the author ought to be punished professionally for her recreational writing.

    Mike Crichton:

    “There may come a time in the not-too-distant future when painting Mickey Mouse on your kids wall is considered ‘Intellectual Property Theft’.”

    And there may come a time in the not-too-distant future where opening up a can of Coca-Cola in a “Pepsi-Only” zone will get you 30 days solitary, Mike. There may also come a time when people realizing that positing unrealistic future hypotheticals to make a point about today’s laws is not actually in the least bit effective. Let’s hope that day is not far in coming.

  99. But if a person plagiarizes in one area, doesn’t it follow that the person will probably plagiarize in other areas as well?

    I think it’s fair to say that there’s not enough knowledge about the author’s original writing to make a judgment based on fact one way or the other, certain names notwithstanding. I have no (and Iproblem with calling the attack a rush to judgment “in the absence of any useful knowledge about the work in question.” But this author wholesale copied from a published author’s original work while writing fanfiction and has yet to acknowledge that this action was wrong. Calling it “recreational writing” doesn’t change the fact that this author put the work out there for the fanfic world to see, claiming the words as original even though they weren’t, and lied about having permission to use the plagiarized passages when confronted about it.

    Whether I agree with you or not that judgment on the original work should be suspended is, to me, a moot point. I’ve already passed judgment on the author in my mind, and won’t be reading the author’s work. As far as I’m concerned, a plagiarist is a plagiarist whether they’re writing fanfic, original fic, or brochures for a child-care company. In the absence of an apology and deletion of the work in question, I have no reason to believe this author will change.

  100. She would have to be a complete and total imbicile to try to ‘borrow’ other people’s writing for her professional work. With the kerfuffle all this has caused, I don’t doubt that someone or some group of someones will take the book the moment it comes out and dissect it, possibly even google it sentence by sentence, for any evidence (real or imagined) that she hasn’t ‘mended her wicked ways.’

    If some plagiarism scandal comes of it, I’ll probably be too busy laughing at her for being the most arrogant fool on the face of the planet to get pissed off. Seriously, that would be a poor choice of ‘Darwin Award’-esque proportions (or possibly Book of the Dumb proportions?). Not that I’m justifying her previous transgressions or anything… I’m just sayin: that’d be first-class stupid.

    I’m vaguely surprised I’m on any fandom radar at all, honestly; my work so far as I know is not fandom-attractive as far as I can see.

    Fen are geeks first, and most of us are avid readers who like science fiction and fantasy in whatever form it takes. Books are love->authors write books->Authors are love. The only way for an author to really get on fandom’s ****-list is to pull an Anne Rice (by which I mean flame people on Amazon for giving you negative reviews) or a Robin Hobb (by which I mean spend almost as much time ranting about fanfic writers and calling them plagues upon this planet as you spend writing). Basically, as long as you don’t do anything that would wind you up on fandom_wank, most fen will be inclined to like you. Unless, you know, your work sucks, but you don’t seem to suffer from that particular malady.

  101. Emily:

    “But if a person plagiarizes in one area, doesn’t it follow that the person will probably plagiarize in other areas as well?”

    Not really, no. Modeling what someone may do in their professional life from what they may do in their private life is a good way to get things really wrong.

    “As far as I’m concerned, a plagiarist is a plagiarist whether they’re writing fanfic, original fic, or brochures for a child-care company.”

    That’s your right, of course. Where I think the line should be drawn is in actively attempting to sabotage this author’s professional career because of something that has nothing to do with that professional career. I think the people who are going out of their way to do that are being petty dickheads, basically. Fanfic issues should stay in fanfic land.

    Annalee Flower Horne:

    “The only way for an author to really get on fandom’s ****-list is to pull an Anne Rice (by which I mean flame people on Amazon for giving you negative reviews) or a Robin Hobb (by which I mean spend almost as much time ranting about fanfic writers and calling them plagues upon this planet as you spend writing).”

    I’m unlikely to do either, so I guess I’m okay. Whew!

  102. O.K., just to answer this way upthread:
    “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?”

    From what I recall of what OSC said in his introduction to the edition of Ender’s Game that I own, he was so new to science fiction that he didn’t realize that FTL communication was as common as it is; he’d just read about the ansible in LeGuin’s work and needed it for his story. So, in an effort to give credit where credit was due (even though best I can tell Simultaneity and philotic physics are rather different principles to base it on), he called it an “ansible” after her device. The gods of irony must have had a hand in that one…

    Although I think that the discussion about the legal status of fanfic is interesting, I think it’s not really related to the morality problem (except that laws should ideally fit in with morality). Because if fanfic is copyright infringement and illegal, plagiarism *isn’t* (necessarily, although it can be, and I don’t know if it would or wouldn’t be in this instance) if I understand it right.

    So…saying that fanfic is copyright infringement and so illegal, and therefore plagiaristic fanfic isn’t any worse because it’s equally illegal–even if fanfic is illegal, and plagiaristic fanfic is equally illegal–isn’t really the question. We agree (I think) that fanfic made about the universes of authors who specifically ban it is worse than fanfic made about the universes of authors who are all right with it (and have said so)…but are those really different, legally speaking?*

    To boil it down: is fanfic illegal–and if so, in which cases (and what counts as fanfic, but I think I have a pretty good radar for telling even if it wouldn’t hold up in court, and let’s not discuss the marginal cases)? Is fanfic immoral–and if so, in what cases? Is the work of She Who Must Not Be Named illegal, and is it immoral? And is it worth getting worked up about and bringing it over to taint what work she does in other areas?

    My take is: I have no idea if fanfic is illegal or not. I think it’s immoral if it’s done against the author’s permission, and iffy if it’s done without the author’s permission but not with it either, and perfectly all right if the author lets the fanficcers play in the yard. I don’t know if She’s work is illegal, but I think it was immoral, because she lied about the origin of her words to her readers (and that this is a qualitatively different moral situation than using characters and the world with full attribution). And I don’t think she should be actively pursued; if it’s as big as everyone’s saying I think any publisher she gets is going to be wary anyway, so hopefully she won’t have the chance to plagiarize in print and fool all of her dead-tree readers too (but if that does happen, the publisher should definitely be held responsible for not checking her work thoroughly enough and it should be publicized all over the place). It’s not necessary, and if the people doing it think it’s not necessary too then they’re just being malicious, as I see it (though I can see why they might hold that malice…).

    Full disclosure: I don’t write fanfic. It never touches paper or computer or even air. I daydream and Mary Sue to my heart’s content in my favorite universes, but there’s no way I’m going to go about writing it down where people can criticize my bad writing now, and lack of originality and bad writing later when I become famous and people pick over everything I did. (Arrogant fantasies of the future help me live a better life, don’t fault me. )

    -Gwen.

    * This isn’t a rhetorical question; the “authorized works” comment’s given me pause. Does it count if the fanfic author was only given the blanket-all-of-fandom nod from the original author? Or does it have to specific and all legal-y?

  103. Where I think the line should be drawn is in actively attempting to sabotage this author’s professional career because of something that has nothing to do with that professional career. I think the people who are going out of their way to do that are being petty dickheads, basically. Fanfic issues should stay in fanfic land.

    Ah, see, here’s a thing: it’s my impression that a large part of the reason this particular author got her professional contract is the writing she did in “fanfic land.” That, to me, makes it perfectly acceptable for the plagiarism concern to follow her. I mean, obviously, trying to actively sabotage her career is going overboard, but engaging in a discussion of her fanfic deeds and their likely relation to her upcoming novel is perfectly fine.

    Question: what would be your reaction if she had been caught plagiarizing for non-professional fic that was original rather than fanfic and not infringing on any copyrights?

  104. A ways upthread, Anne C. said:

    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*.

    This is inaccurate (or at least misleading) as regards the case under discussion. The conversation has moved on a bit from this point, but I wanted to clarify: the author we are talking about was not *plagiarizing* from J.K. Rowling. She was infringing on Rowling’s copyright, of course, by using characters and a fictional universe that Rowling created; but she was plagiarizing (that is, lifting complete or near-complete chunks of text) from other writers who were not necessarily known to her audience. The difference is that everyone reading her HP fanfiction understood that she did not, e.g., make up Draco Malfoy, scion of a pureblood wizarding family, herself, whereas most people reading those stories believed that she wrote the actual full text of them herself, and did not generally recognize the sections that were lifted from other authors. She did not claim Rowling’s work as her own, and she probably would have been found out much more quickly if she had.

    So what’s got people so mad at her is that she built a major reputation, within the HP fanfiction community, as a good writer (for things like her prose style, nifty ideas, witty dialogue, etc.) on the basis of work that was not solely her own, and when complimented on her writing, gave little or no credit to those authors she plagiarized. (She has now, after being confronted about certain parts of her stories, added some disclaimers, which still do not cover the extent of her borrowing.) Some people think this is relevant to her career as a professional writer because her legions of fans within the fanfiction community make up a significant percentage of the assumed audience for her books, and may have influenced her publishing company’s decision to accept the book (this is speculation on my part, but not, I think, unfounded). Furthermore, the plot details that have been made public sound derivative enough (though *not* plagiaristic) to raise some red flags in people who have already lost some trust in her. And finally, her handling of the whole plagiarism debacle earned her some enemies, and there’s no doubt that some of the people trying to make this public are motivated by jealousy and/or pettiness — I just don’t think it’s the only factor.

    I am not actually trying to defend either side here, just hoping to clarify a few things — though I realize those are dangerous words in an Internet debate!

  105. John Scalzi quotes the implausibly-named Mike Crichton as saying:

    “There may come a time in the not-too-distant future when painting Mickey Mouse on your kids wall is considered ‘Intellectual Property Theft’.”

    And responds:

    And there may come a time in the not-too-distant future where opening up a can of Coca-Cola in a “Pepsi-Only” zone will get you 30 days solitary, Mike. There may also come a time when people realizing that positing unrealistic future hypotheticals to make a point about today’s laws is not actually in the least bit effective. Let’s hope that day is not far in coming.

    Come on. In a world in which corporate copyright holders are shaking down grandmothers for three or four grand because their kids downloaded a track on Kazaa, the scenario posed by “Mike Crichton” is hardly an “unrealistic future hypothetical.”

    I can’t believe you have that much faith in the proportionality and perspective of corporate actors. Indeed, I’m quite confident that you don’t; you’re too much of a realist about human folly.

  106. Her sale has nothing to do with her fanfic reputation. Her publisher doesn’t have a clue what fanfic is. The book was bought off the strength of the writing, plain and simple.

    If people choose not to buy the book, fine and dandy. That’s their right as consumers. But the coordinated and vicious attacks, stemming as I see it from pure unadulterated envy that this writer has moved successfully beyond fandom, is disgusting. They’ve emailed the writer’s publisher, posted comments anywhere and everywhere they can in an orgy of gleeful violence; they’ve emailed the writer and wished painful death upon the writer’s person and that of his/her family. So tell me: who are the immoral ones, really?

  107. Thanks, Patrick and Lucy, for the copyright clarification. I’d never seen that before and I find it absolutely fascinating and somehow rather sweet. I can certainly see where the “information wants to be free” camp would be all over that.

    (And for clarity’s sake, I’m no more in favor of perpetual copyright than I am in favor of draconian copy protection.)

    However, I feel like that answer sort of dodges the issue. Assuming that the work is protected exactly in line with the Framers’ ideal and within the amount of “limited time” that they had in mind — isn’t it every bit as much the property of the author as any physical property?

    After all, the power of eminent domain indicates that even “real property,” as it is so charmingly called, is not necessarily owned in perpetuity by the person who holds title to the land.

  108. John Scalzi: Disney already Courtesy of sics their lawyers on day care centers for having unauthorized paintings. What’s so unrealistic about them going a few steps further? Fifty years ago, the idea that farmers could be sued for saving seeds from one crop to plant another would be seen as ridiculous; Now, the Agribusinesses claim it’s perfectly reasonable.

    My point was, when laws are as arbitrary as this, what do you do when the legal standard shifts and something that you had always thought was perfectly OK gets declared illegal? Was it _always_ “wrong”, and you just never knew it? Or is the only thing that made it “wrong” corporate pressure and political whim? I heard something on NPR a while ago about the owners of some famous European building (sorry I can’t be more specific, it was right before I deployed to Iraq, so I had other things on my mind :-) claiming that it was IP theft for tourists to take pictures, and that they had to pay official, licensed camera-men to do it for them. This wasn’t a museum or anything, this was the ecterior of a public building.

    Patrick Nielsen Hayden: Thanks for the new nickname. I swear, some day it’ll be that marginally talented hack writer who gets asked if _he’s_ related to _me_. :-P

  109. However, I feel like that answer sort of dodges the issue. Assuming that the work is protected exactly in line with the Framers’ ideal and within the amount of “limited time” that they had in mind — isn’t it every bit as much the property of the author as any physical property?

    What do you mean by “every bit as much the property of the author” in that sentence? If you mean “it acts just like the car I own,” the answer is no, it doesn’t. If you mean “it is something over which I am allowed some extent of exclusive control by the State,” the answer would be yes. The fact of the matter is, though, that the exact nature of that control is different depending on the type of property in question; using someone’s words without permission is, in any number of cases, nothing like stealing someone’s car from their front yard, at least legally. The bodies of law have developed rather differently historically and rely on different rationales.

    Again, though, the difference between what is legal and what you think to be moral could be huge. It’s important to keep those two issues separate in a debate like this.

  110. Joe Rybicki-

    Short answer, yes. Property of any sort only exists as a concept because the government says so and they have the guns to make it that way.

    Long answer, no. People are much more emotional about physical property and they react differently to its appropriation. They go to great lengths to invent magical Just-So stories to justify the right to physical property as some sort of objective concept instead of a contingent one defined and contoured by history, with caveats and exceptions riddling it.

  111. Patrick says:

    “Come on. In a world in which corporate copyright holders are shaking down grandmothers for three or four grand because their kids downloaded a track on Kazaa, the scenario posed by “Mike Crichton” is hardly an “unrealistic future hypothetical.”

    I can’t believe you have that much faith in the proportionality and perspective of corporate actors. Indeed, I’m quite confident that you don’t; you’re too much of a realist about human folly.”

    Consider the practical implications of what Michael suggested — that a commercial enterprise such as Disney should at some point in the future commence a program to abolish all amateur imitations of its own icon, Mickey.

    Disney would have to become authorized to survey and enter the homes of its fans, in order to catch them out in such wanton acts of fandom as painting Mickey.

    It would need a special task force to enforce these neo-nazi copyright laws.

    Perhaps in this enlightened age, Mickey has at last been recognized as the one true God, and idolitry is rightly forbidden.

    I hope you will read this and realize that you have been PWT, posting without thinking. There are others like you, seek help.

  112. Gwen: Because if fanfic is copyright infringement and illegal, plagiarism *isn’t* (necessarily, although it can be, and I don’t know if it would or wouldn’t be in this instance) if I understand it right.

    I am truly baffled by this statement. Can you unpack?

    Here’s why I’m baffled: there is an argument to be made that at least some fanfic is entitled to a fair use defense, because it’s explicitly parodying the named work, or otherwise doing something with it that we want to encourage (you’ll note that the fair use statute says “purposes such as criticism, comment” etc. But plagiarism by definition isn’t *saying* that it’s taking from a specific work, so it’s much much harder to argue that its use of another’s work is fair use. At least, that’s the general way these questions get analyzed.

    And while all discussions of fanfic end in the same place, where we’ve ended up, John did start this discussion by asking the difference between fanfic and plagiarism, and so I’d really like to see the two not conflated by mistake.

    Maybe I’m missing something (I did just wake up from a dream of being chased by an elephant, after all, though I have re-read everything here carefully). Why do you say plagiarism is more likely to be legal than fanfic?

  113. Kate — the short answer is that plagiarism is an academic term (not a legal one), and is broad enough to cover both direct copying (which is a copyright violation, of course), and stealing ideas/phrases but making changes. Much of the stuff that launched the initial discussion here fits into that latter category — a few key words and plot points that are clearly borrowed, but with words moved around, etc.
    Many of the academic scandals involving plagiarism involve swiping and not citing research, even when all the words used are created by the plagiarist, not the original author/researcher.

    That’s also where fair use comes into play. Fair use is only about copyright, and as long as something meets the (ever-changing) fair use standard, it doesn’t matter that someone could make a “plagiarism” attack on it, as it’s an irrelevant charge (unless they’re ripping off someone else’s parody).

    (Disclaimer: I work in academia, not law, so don’t assume I know anything when it comes to copyright).

  114. “There may come a time in the not-too-distant future when painting Mickey Mouse on your kids wall is considered ‘Intellectual Property Theft’.”

    And there may come a time in the not-too-distant future where opening up a can of Coca-Cola in a “Pepsi-Only” zone will get you 30 days solitary, Mike. There may also come a time when people realizing that positing unrealistic future hypotheticals to make a point about today’s laws is not actually in the least bit effective. Let’s hope that day is not far in coming.

    It’s not quite the same thing, but there is a (locally famous) case of a farmer somewhere between Oneonta and Albany who painted a picture of Snoopy on the roof of his (red) barn. He was promptly sued by the cartoon syndicate, and after a lengthy court fight, forced to remove the painting (he replaced it with a sign saying “Dog Gone”). This was back in the 80’s.

    Granted, there’s a difference between a publically visible barn roof (you could see it from I-88, which is how I know about it), and a more private space, but you won’t get far assuming that big companies have a sense of humor about this sort of thing.

  115. Michael Crichton:

    “Disney already Courtesy of sics their lawyers on day care centers for having unauthorized paintings.”

    Yeah, I knew that’s what you were thinking of. My response: What? Disney, defending its trademarks and copyrights against unlicensed use in a commercial enterprise? Who would have thought? Disney has an excellent argument there: When the local news trucks pull up to do a story about the day care center helper feeding the kids rum at naptime, it’d rather not have Mickey and pals associated.

    This is certainly not an arbitrary use of the law: Disney is obliged to to police its trademarks for one, and inasmuch as Mickey is under copyright (and will continue to be so as long as Disney can help it, but that’s another story), Disney is well within its right to say what commercial enterprises may or may not associate itself with the company’s intellectual property.

    As a matter of law, none of that has anything to do with my ability to paint Mickey on the wall of my daughter’s room.

    Agribusiness: 50 years ago, agribusinesses didn’t own patents for genetic strains of plants they had spent millions of dollars in developing; it’s neither arbitrary nor unreasonable to suggest that businesses should be allowed to profit from the (in this case literal) fruits of their labor. We can argue as to whether it’s right and moral to allow patents on genetics at all, of course, but as a matter of the practical application of patent law, this is pretty standard stuff. And of course, patent law is not anywhere on point to me painting Mickey on my wall.

    That one time in Europe where someone said someone couldn’t do something: I’m supposed to be worried that a nebulous anecdotal event in an entirely different country has some sort of import on my ability to paint a cartoon character on my daughter’s wall here in the US? I can’t begin to tell you how not concerned I am about that.

    Chad Orzel:

    “Granted, there’s a difference between a publically visible barn roof (you could see it from I-88, which is how I know about it), and a more private space, but you won’t get far assuming that big companies have a sense of humor about this sort of thing.”

    Well, let’s make sure we don’t minimize that difference; let’s also note, as I bet the lawyers did, that a farm is a commercial enterprise.

    Patrick Nielsen Hayden:

    “Come on. In a world in which corporate copyright holders are shaking down grandmothers for three or four grand because their kids downloaded a track on Kazaa, the scenario posed by “Mike Crichton” is hardly an ‘unrealistic future hypothetical.'”

    Bah.

    The RIAA is stupid and odious for following its program of spot-and-sue, but nonetheless has a clear legal argument for doing so under law: Taking tracks online without paying for them is theft. Me painting a picture of Mickey Mouse in my child’s room for her private enjoyment is well understood under law to be fair use and that sort of fair use has a long line of precedent. The sort of organized rights theft corporations would have to engage in to get us from today to a point where I was legally enjoined from painting Micky on my kid’s wall is entirely unrealistic — and certainly not achievable in the “near future.”

    If we want to talk about copright abuses that go on in the real world, then by all means let’s talk about them; let’s just not start by rhetorically driving the conversation into screeching insensibility via the wild-eyed future hypothetical.

    Kate Nepveu:

    “And while all discussions of fanfic end in the same place, where we’ve ended up, John did start this discussion by asking the difference between fanfic and plagiarism, and so I’d really like to see the two not conflated by mistake.”

    Agreed. I’ve noticed in commentary about this entry elsewhere online that people have made the mistake of conflating the two (or, more accurately, thinking that I’ve made the mistake of conflating the two); let’s try to avoid it here.

  116. Well, let’s make sure we don’t minimize that difference; let’s also note, as I bet the lawyers did, that a farm is a commercial enterprise.

    Not in any relevant sense. The guy wasn’t making money off the Snoopy picture– to the best of my knowledge, he wasn’t running the sort of farm where he sold anything directly to consumers. The picture wasn’t part of an advertisement for his farm, it was just there for the amusement of passers-by.

  117. I should note, by the way, that I share your skepticism about the ability of Disney or whoever to gain the right to search your private space and sue you for amateur depictions of their characters.

    But if, hypothetically, you painted a picture of Mickey Mouse on your office wall, which then appeared in the background of, say, a picture with an author interview in Locus, it wouldn’t surprise me if you got a nasty letter from the Disney people. That is, if they found out about your private collection of Disney fan art by non-invasive means, it wouldn’t surprise me if they tried to make you get rid of it.

  118. Chad Orzel:

    “Not in any relevant sense. The guy wasn’t making money off the Snoopy picture– to the best of my knowledge, he wasn’t running the sort of farm where he sold anything directly to consumers. The picture wasn’t part of an advertisement for his farm, it was just there for the amusement of passers-by.”

    I would suspect Snoopy is a trademark, and the public display was an issue of dilution.

    “But if, hypothetically, you painted a picture of Mickey Mouse on your office wall, which then appeared in the background of, say, a picture with an author interview in Locus, it wouldn’t surprise me if you got a nasty letter from the Disney people.”

    I wouldn’t be surprised, either; but it would not oblige me to listen to them. Now, if I were constantly broadcasting from my office (i.e., this private space became a quasi-public space), I could see where they might have a genuine legal issue.

    Incidentally, re: overreaching corporate entities trying to carve into the fair use rights of US Citizens — as it happens there is a fresh case that is exactly on point to this: Major League Baseball just got slapped down for trying to claim baseball stats and player names were their intellectual property. This happened yesterday.

  119. I’m sorry but I’m confused.

    In the Disney scenario, then coming after you for having a Disney fan-art pic in the background, by what legal means would they be able to do this?

    The whole music thing I get even though I think they are going after the wrong people but with this new discussion I’m a bit lost.

  120. Adam: ah, thank you. You see, as far as I’m concerned, the most serious of the plagiarism charges that started this discussion was wholesale lifting of two scenes, including direct text, and that was what I was thinking of.

    I wasn’t thinking of swiping research, and it’s not clear to me where that would fall as a copyright matter.

  121. Mike Crichton:

    Disney already Courtesy of sics their lawyers on day care centers for having unauthorized paintings. What’s so unrealistic about them going a few steps further? Fifty years ago, the idea that farmers could be sued for saving seeds from one crop to plant another would be seen as ridiculous; Now, the Agribusinesses claim it’s perfectly reasonable.

    My point was, when laws are as arbitrary as this, what do you do when the legal standard shifts and something that you had always thought was perfectly OK gets declared illegal? Was it _always_ “wrong”, and you just never knew it? Or is the only thing that made it “wrong” corporate pressure and political whim? I heard something on NPR a while ago about the owners of some famous European building (sorry I can’t be more specific, it was right before I deployed to Iraq, so I had other things on my mind :-) claiming that it was IP theft for tourists to take pictures, and that they had to pay official, licensed camera-men to do it for them. This wasn’t a museum or anything, this was the ecterior of a public building.

    As is usual in these discussions, copyright and trademark and plagiarism and patent get all mixed up together.

    Agribusiness is patent law, and is not related to trademark/copyright/plagiarism in any way. Patent law is clear and unequivocal, and a red herring in this discussion.

    That said, IANAL, but I’ve been through this argument several times.

    The Disney situation and the situation of the lights on the Eiffel Tower are examples of trademark law. Mickey Mouse is registered as a trademark, and Disney is required by that law to defend that trademark whenever they are made aware of potential violations. Trademark law is vast and labarythian, but the general principle is that trademarks are difficult to aquire, and easily lost. Hence the lawyer-enriching arguments between Apple Computer and Apple Records, for example, and hence the requirement under law for Disney to send cease-and-desist letters to daycares who paint Mickey Mouse on their walls.

    I don’t recall the resolution in the Eiffel Tower situation. I remember reading about it and finding that it isn’t anywhere near as simple as someone trying to trademark a public building. It is one of those that falls into the grey area, and if memory serves, the problem wasn’t people taking pictures of the Eiffel Tower at night, it was people SELLING pictures of same. Very different, but as usual in these sorts of discussion, the little things get forgotten.

    Copyright is very different from trademark, and John and PNH (among others posting in this thread) likely both understand it and can explain it better than I can, but copyright exists automatically, doesn’t have to be registered, and doesn’t have to be defended. In the case of fanfic, it is the copyright owner’s right to control ‘derivative works’, which fanfiction clearly is. This is the main issue with fanfic. It is, under the law, a ‘derivative work’, and permission is clearly and specifically required before anyone can ‘publish’ same.

    The grey area comes in the definition of ‘publish’. Fanfic has slid under the radar by using a wink-wink definition of ‘publishing’ as being ‘publishing-for-profit’. Hence, the serious fanficcers’ violent reaction to anyone making a dime off the stuff. They (probably correctly) believe that Big Publishing won’t bother them unless people start selling derivative works. Therefore, they tacitly maintain that publishing for free ain’t really publishing, and therefore it’s ok. (Whether or not it’s ok is a religious issue, and I won’t go into it here.)

    Plagiarism is the unattributed regurgitation of the writing of another. It is not, as far as I know, illegal, but it is unethical, and it will ruin your career as a writer.

    It is not possible to plagiarize ideas. For example, Dan Brown’s extensive borrowings of material for the Da Vinci Code are not plagiarism, nor is it copyright violation. Copyright extends to the specific execution of the idea.

    Where something strays from acceptable borrowing to derivative work is unclear to me. I doubt that I would be allowed to write about a wizard school with a main character named Larry Potter, for example, but a wizard school set in New England with completely different character names? That’s probably ok. In fact I think it’s been done.

  122. Dean:

    “Plagiarism is the unattributed regurgitation of the writing of another. It is not, as far as I know, illegal, but it is unethical, and it will ruin your career as a writer.”

    It certainly can be illegal; if you’re cutting and pasting large chunks of a copyrighted work into your own work, that’s infringement.

  123. Barry,

    First, I am very sorry to hear that your friend has been receiving death threats or threats of violence because that is scary, inappopriate, completely disproportionate to any offense alleged or imagined in this case, and just generally Totally Not Okay.

    But, second, it does not help the argument when the writer’s friends allege that the only reason anyone might be concerned about plagiarism is envy and spite.

  124. Erika:
    In the Disney scenario, then coming after you for having a Disney fan-art pic in the background, by what legal means would they be able to do this?

    Under trademark law. In fact, under trademark law, they are required to do so.

    Trademarks are difficult to establish, and easy to lose. A trademark is a symbol under which a company does business. It is held to have intrinsic commercial value for it’s own sake, as the image of Mickey Mouse clearly does. A trademark owner is not allowed to look the other way when it is made aware of violations of that trademark. If it does, it risks being deemed to have abandoned that trademark. This has happened in the past, although I can’t think of any examples off the top of my head.

  125. John:

    (quoting me)
    “Plagiarism is the unattributed regurgitation of the writing of another. It is not, as far as I know, illegal, but it is unethical, and it will ruin your career as a writer.”

    It certainly can be illegal; if you’re cutting and pasting large chunks of a copyrighted work into your own work, that’s infringement.

    But in this case, it’s the copyright infringement that is illegal, correct?

    If the work stolen is in the public domain, there is no copyright infringement, and as far as I know there is no law against it (I stand to be corrected on that, though).

    That isn’t to say that it is a good idea. It will almost certainly get your book deal cancelled. But I don’t think that anyone could bring you into court over it, unless it was your publisher, and that would be on a separate matter, that of your voilation of the contract you signed with them saying that your work is original blah blah. But I’m certain that you know more about that than I do.

  126. Erika, as I understand it, what they could do in that case is demand that the picture be removed. Mickey is trademarked, so you may not publish images of mickey without their permission. I’m fairly certain (not a lawyer) that putting a picture of mickey in your own home is not ‘publishing.’ Putting a picture of Mickey (or a picture of a picture of Mickey) on the web, on the other hand, is publishing.

    The case I heard of was a public school that was using Disney characters to differentiate between its buses, because they thought “The Mickey Bus” would be easier for the munchkins to remember than “Bus Number 5034.” Disney sent them a cease and desist; Nickelodeon promptly turned around and held a press conference about how they would be happy to grant the school use of *their* characters for buses, and did the school want a nice public-relationstastic donation with that? If I remember correctly, Disney realized it was making them look bad and dropped the issue.

    In the case of the guy with the barn, it’s a shame he didn’t pull a Penny Archade. They had a gag about “American McGee’s Strawberry Shortcake” a while back that showed our favorite fictitious confectionary princess all gothed out and covered in tattoos. Strawberry Shortcake’s owners were not amused. Penny Archade re-did the image in blue tones instead of reds/pinks and renamed it “American McGee’s Blueberry Poundcake.” (IIRC… I might be getting the exact nature of the redo wrong). Everyone knew exactly what they were doing, but suddenly it was completely protected parody by nature of not including the trademark.

    Trademark law is even wierder than copyright, though, and that’s what we’re talking about when we’re talking about famous cartoon characters. I personally think it’s a bit ridiculous the way that trademark is being used to keep/pull things out of the public domain in some cases (like Zorro… what’s next? Someone going to trademark Robin Hood and demand royalties for stories about him?) because that was decidedly not its intended purpose. I’m not a lawyer, though, so I can’t really debate that intelligently.

  127. Dean:

    “If the work stolen is in the public domain, there is no copyright infringement, and as far as I know there is no law against it (I stand to be corrected on that, though).”

    I suppose you could get sued for fraud, or some such.

    However, you are correct that plagiarism qua plagiarism is not a crime, so far as I know. It is some of the issues that crop up with an act of plagiarism that are likely to get you in trouble with the law.

  128. Dean:

    “If the work stolen is in the public domain, there is no copyright infringement, and as far as I know there is no law against it (I stand to be corrected on that, though).”

    I suppose you could get sued for fraud, or some such.

    However, you are correct that plagiarism qua plagiarism is not a crime, so far as I know. It is some of the issues that crop up with an act of plagiarism that are likely to get you in trouble with the law.

  129. Joe

    “…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”

    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.

    An idea’s power comes from its interaction with the culture, and thus is shaped by people thinking and arguing about the idea. An idea is nothing without the larger culture it is released into. It is a different class of property, assuming we want to use a word like property to describe such a thing as an idea of fictional world, than a car. What you seem to be arguing is that the notion of forced licensing for songs is immoral. See my point below, but I do not agree. Essentially, I don’t think it immoral to allow people to play with/change/argue with your idea in its “home” so to speak to be immoral considering that the existence of an idea is so dependent upon the culture engaging with it. As long as the originator of the idea (and, to be clear, I am using “idea” as a short had for all the tings that go into the theme, world building, and moral of a work of fiction) is compensated for commercial purposes, I am not sure I see a moral problem here.

    Mitch and John

    I didn’t know that about Forever War. But both books do deal with topics that Heinlein worked with, and I am still not sure the fact that the books came upon their subjects coincidentally and not as a direct response to Heinlein changes the larger point. I am not sure that dealing with similar themes in different worlds is a difference of kind in dealing with themes in the same world as a given author. And if it is not, then I am not sure why fanfic is morally different (aside from the issue of compensation) than a remake of a song. RATM’s version of The Ghost of Tom Joad is much different than Springsteen’s original, and that difference in interpretation gives the RATM version quite a bit of its meaning – meaning that I think would be lost if they hadn’t been able to use Springsteen’s original as their starting point. I am not sure why, compensation issues aside, fanfic is different from song remakes.

  130. Joe

    “…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”

    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.

    An idea’s power comes from its interaction with the culture, and thus is shaped by people thinking and arguing about the idea. An idea is nothing without the larger culture it is released into. It is a different class of property, assuming we want to use a word like property to describe such a thing as an idea of fictional world, than a car. What you seem to be arguing is that the notion of forced licensing for songs is immoral. See my point below, but I do not agree. Essentially, I don’t think it immoral to allow people to play with/change/argue with your idea in its “home” so to speak to be immoral considering that the existence of an idea is so dependent upon the culture engaging with it. As long as the originator of the idea (and, to be clear, I am using “idea” as a short had for all the tings that go into the theme, world building, and moral of a work of fiction) is compensated for commercial purposes, I am not sure I see a moral problem here.

    Mitch and John

    I didn’t know that about Forever War. But both books do deal with topics that Heinlein worked with, and I am still not sure the fact that the books came upon their subjects coincidentally and not as a direct response to Heinlein changes the larger point. I am not sure that dealing with similar themes in different worlds is a difference of kind in dealing with themes in the same world as a given author. And if it is not, then I am not sure why fanfic is morally different (aside from the issue of compensation) than a remake of a song. RATM’s version of The Ghost of Tom Joad is much different than Springsteen’s original, and that difference in interpretation gives the RATM version quite a bit of its meaning – meaning that I think would be lost if they hadn’t been able to use Springsteen’s original as their starting point. I am not sure why, compensation issues aside, fanfic is different from song remakes.

  131. Mely: You and Kate and others concerned about plagiarism are not the ones sending the author in question death threats and abusive email and attempting to destroy the author’s pro carer. I do not for a moment think any of you are jealous. You are a talented writer if you cared to go pro you totally could. But you’re smart and know how little dosh there is down that path :-)

    The manner in which the death-threat group have attacked and the language they use is many oceans removed from concern about plagiarism. It is clearly motivated by jealousy of the person in question’s success.

    These people do not just talk about the use of other people’s texts in fanfic, they have a long list of increasingly unrelated to plagiarism charges to the point where they start to rail against the fact that this author still breaths and walks the earth.

    It’s very hard to be sympathetic to the original grievance when you see the complete lack of proportion between it and the attacks on the author. Various folk who have never met the author in question (Scalzi, Cherie Priest) came to the jealousy conclusion without having heard a peep from those defending the author. The death-threat mob managed that all on their own.

    I can see why some pros are starting to conclude that fandom is crazy and it’s not because of any plagiarism. I happen to know that fandom mostly isn’t crazy, at least no more than prodom (check out some of those SFFWA brawls!).

    (This bruhaha is not unique to fandom. Mobs have been with us forever. Some of the recent attacks on Kaavya Viswanathan were just as crazy extreme. Right down to the death threats. Did KV commit plagiarism? Yes. Should she be stoned in the streets? No.)

    I also want to reiterate what Barry said. The author did not use their fanfic rep to get the deal. I happen to know this because I asked their agent. I had not heard of the plagiarism scandal at the time and was merely curious about how useful the author’s big fan following was in securing said deal.

    The agent looked aghast at the question. “It was not mentioned,” they said. “For most of publishing–if they’re even aware of it–they see fandom as a minus not a plus.”

    Outside adult sf and fantasy publishing (and the author in question is not being published by a genre house) I rarely meet publishers who have the faintest clue about fandom. I can’t tell you how many times I’ve had to explain what a Mary Sue is.

  132. Kate P: “And while all discussions of fanfic end in the same place, where we’ve ended up, John did start this discussion by asking the difference between fanfic and plagiarism, and so I’d really like to see the two not conflated by mistake.”

    Scalzi: “Agreed. I’ve noticed in commentary about this entry elsewhere online that people have made the mistake of conflating the two (or, more accurately, thinking that I’ve made the mistake of conflating the two); let’s try to avoid it here.”

    Thank you, Kate P., for the clarification. I was making an analogy about fanfic and plagiarization in a general sense, not this specific case. If you would like to customize the analogy, you might imagine the accused as frolicing in Rowling’s yard with Scalzi’s iPod.

    However, I would like to defend myself by saying that I am not conflating fanfic and plagiarization. What I was trying to say and apparently didn’t do a very good job is that I think they fall under the same legal parameters of copyright infringement. Both are taking the work of an author and using it without permission for your own purposes. Many others in this thread who are more learned than I have elaborated on the legal side of this issue.
    The difference between fanfic and plagiarization is colored by openness/secrecy, intent, benefit/harm to those involved. When I said the difference was up to the author, I meant that the fact that you don’t get a cease and desist is because the author chooses not to. They would be within thier rights to do so. Saying that a difference is relative or mutable is not conflating.

    If I meant to say that fanfic and plagiarization were the same thing, I would have said so. I did not.

  133. Kate P: “And while all discussions of fanfic end in the same place, where we’ve ended up, John did start this discussion by asking the difference between fanfic and plagiarism, and so I’d really like to see the two not conflated by mistake.”

    Scalzi: “Agreed. I’ve noticed in commentary about this entry elsewhere online that people have made the mistake of conflating the two (or, more accurately, thinking that I’ve made the mistake of conflating the two); let’s try to avoid it here.”

    Thank you, Kate P., for the clarification. I was making an analogy about fanfic and plagiarization in a general sense, not this specific case. If you would like to customize the analogy, you might imagine the accused as frolicing in Rowling’s yard with Scalzi’s iPod.

    However, I would like to defend myself by saying that I am not conflating fanfic and plagiarization. What I was trying to say and apparently didn’t do a very good job is that I think they fall under the same legal parameters of copyright infringement. Both are taking the work of an author and using it without permission for your own purposes. Many others in this thread who are more learned than I have elaborated on the legal side of this issue.
    The difference between fanfic and plagiarization is colored by openness/secrecy, intent, benefit/harm to those involved. When I said the difference was up to the author, I meant that the fact that you don’t get a cease and desist is because the author chooses not to. They would be within thier rights to do so. Saying that a difference is relative or mutable is not conflating.

    If I meant to say that fanfic and plagiarization were the same thing, I would have said so. I did not.

  134. Justine: It’s very hard to be sympathetic to the original grievance when you see the complete lack of proportion between it and the attacks on the author.

    I disagree. The charges of plagiarism can be assessed independently of the personal motivations or actions of those bringing the charges. That’s one of the nice things about it, in a way: the texts are there for the comparing, and the manner in which they are brought to the world’s attention means nothing to the similarities or differences between the texts.

    I see neither an emotional nor a logical problem with thinking that the author plagiarized and with thinking that personal attacks on her are wrong.

    Anne C.: I wasn’t responding to you but to Gwen, so I guess there’s a lot of confusion going around (I presume you were talking to me). =>

  135. Justine: It’s very hard to be sympathetic to the original grievance when you see the complete lack of proportion between it and the attacks on the author.

    I disagree. The charges of plagiarism can be assessed independently of the personal motivations or actions of those bringing the charges. That’s one of the nice things about it, in a way: the texts are there for the comparing, and the manner in which they are brought to the world’s attention means nothing to the similarities or differences between the texts.

    I see neither an emotional nor a logical problem with thinking that the author plagiarized and with thinking that personal attacks on her are wrong.

    Anne C.: I wasn’t responding to you but to Gwen, so I guess there’s a lot of confusion going around (I presume you were talking to me). =>

  136. No, Kate Nepveu, though you have been posting some excellent arguments, I was actually responding to Kate P. Talk about confusing! :)

  137. No, Kate Nepveu, though you have been posting some excellent arguments, I was actually responding to Kate P. Talk about confusing! :)

  138. But you quoted me! Now I’m confused.

    (I admit I did miss that there was another Kate in this discussion. I’m oddly used to being the only one. And there *are* a lot of posts.)

  139. But you quoted me! Now I’m confused.

    (I admit I did miss that there was another Kate in this discussion. I’m oddly used to being the only one. And there *are* a lot of posts.)

  140. There’s three issues here which muddy the matter, as far as I’m concerned; fanfic and plagiarism both need to be judged in terms of legality and morality (from mores — socially-proscribed group standards) but we also have to judge in terms of ethics (from ethos individually-selected personal standards).

    Now, currently, both fanfic and plagiarism have legal injunctions against them. In the hope of explicating how and why we have differences over the is/is-not and should-be-should-not, here’s a very simple analogue: A story requires background, characters and textual rendition just as a song has music, lyrics and audio rendition. In stories those three things tend to be done by the same person, but in songs it’s quite common for them to be done by different people entirely — e.g. you might have Burt Bacharach writing music, Hal David writing the lyrics and Dusty Springfield rendering them both in a performanve. To use the common fanfic sandbox metaphor, if I go to a party and sing “Anyone Who Had A Heart” to mates, this is me “playing in the Bacharach/David sandbox”. This is not a public performance, so it’s fair enough. If I record my version and distribute it, however, Bacharach and David are quite entitled to stomp on me for copyright infringement. If I put different lyrics to the same tune, Bacharach can stomp on me. If I put a different tune to the same lyrics, David can stomp on me.

    So say Scalzi and I collaborate with a third writer, X; Scalzi supplies the OMW background, I supply characters from VELLUM, and X writes the actual text of the story. Scalzi and I are to X as Bacharach and David are to Dusty. X can’t do it without our permission; and we could equally well let Y or Z write their own story. Similarly, Dusty can’t record “Anyone Who Had A Heart” without the say-so of Bacharach and David; and Bacharach and David could equally well grant that say-so to Dione Warwick or Diana Ross.

    Now Dione or Diana might sing the song at a private party, but they’d be stomped on if they tried to put out a single without permission. Indeed, there are explicit performance licenses you have to get even if you just want to sing the song at a gig, regardless of whether that gig is paid or free. Similarly, X might write a story using this Scalzi/Duncan “canon” and read it to a few mates at a party. Theoretically, they could set up a live broadcast over the internet which was open to the public and, either charge the audience or not; the (il)legality of this might be considered arguable because fiction is not generally distributed to the public in this manner, so the question would arise as to whether this performance was/was-not an act of publication. The live, ephemeral, unrecorded nature of the story would, I’m sure, cause arguments, but I suspect that this would in fact be found to be an act of making-public, hence an act of publication, and hence a copyright infringment.

    And this is where fanfic becomes illegal: because it is published. With fanfic the story isn’t just made public (i.e. published) as a live, ephemeral, unrecorded broadcast; it is laid down in a permanent, distributable form, recorded like a single. It doesn’t matter if the single is distributed only as an MP3 free over the internet, with Dione or Diana making no profit. It doesn’t matter if it’s a labour of love which actually helps Bacharach’s and David’s careers in the long term. Neither of those are considered (legally) relevant. What matters is that Bacharach and David make their living from the publication of their work and — either because we want to encourage them (US law) or because we recognise their ownership (UK law) — they are entitled to withold or grant the right of publication to whomsoever they choose, and to seek recompense when that right is infringed. Indeed, they even get to choose whether or not to seek recompense on a case-by-case basis.

    The confusion comes in because of a few things:

    1) The conflation of background, character and textual rendition in single-authorship, means we fail to distinguish the separate ownership of these components of the story. It’s like the hypothetical X writes under the name Scalcan Dunzi; and his textual rendition is so much in the foreground that we’re unaware that, behind the scenes, it’s actually Scalzi and Duncan who did a lot of the work; so we think as long as we’re doing our own plot and style, we’re not appropriating this Scalcan Dunzi guy’s work but rather reimagining it with our own unique arrangement. In truth, we are creating our own unique arrangement, but we are still infringing the copyright of Scalzi and Duncan, just as we’d be with Bacharach and David if we ignored the importance of music/lyric writing and thought we were just doing a cover of a “Dusty Springfield” song. It’s our own version, right? We’re just playing in her sandbox. No, the sandbox doesn’t even belong to her. She rents it from Bacharach and David who are in the sandbox production and rental business. Most writers are seen primarily as sandcastle-builders, but they have to build the box (music / background) and put the sand (lyrics / characters) in it first.

    2) Many fanfic writers seem to think that what they’re doing is like singing “Anyone Who Had A Heart” at a private party (a live reading amongst friends), when it is not even equivalent to a cover at a gig (a live webcast), but is in fact equivalent to slapping a downloadable MP3 of your own performance of “Anyone Who Had A Heart” up on the internet (a published story). Presumably this is because the online media in which fanfics circulate are seen as communities of friends rather than public gatherings of strangers; they have all the character of a huge party, with gossip and banter, friendships and feuds. They are, nonetheless, venues/vectors of publication and distribution.

    3) There’s a huge culture of covers in music and spin-offery in fiction, the licensing of which takes place so far in the background that those outside the industry may not even realise it’s there. Try to get permission to use song lyrics in a novel and you’ll see just how big and monstrous the bureaucracy is behind the scenes. Try to use them without permission and you may well be royally screwed. But we see bands doing covers on stage, releasing them as singles; we hear them on soundtracks on movies and TV. Likewise we have movie tie-ins, shared-worlds, merchandise and so on, so much that these copies (and even if it’s just of a character’s likeness in the form of a figurine, it’s still a copy) permeate our culture to the extent that they seem “ours”. The illegal stuff is everywhere — bootlegs and pirate copies — to a level impossible to police. The time-limitation makes it even more confusing: is this in copyright or out? Or how private is private? Does a wedding singer have to pay a fee for singing “Anyone Who Had A Heart”? I know that in the UK at least there’s a whole registry thing so that club DJs can play tracks, pay a middle-man, and the artists get their fair share. The point is, in such a culture it’s not surprising you end up with a sub-culture based on shared copies where those involved will argue that what they’re doing is not actually illegal.

    Unfortunately, this is where morality kicks in and confuses it even further, because laws and mores aren’t in a one-to-one relationship. Fanfic is, like it or not, illegal by my understanding of copyright. Just because it’s you singing your own version of the Bacharach/David (music-&-lyrics) song, doesn’t mean it’s not an infringement of their copyrights. Just because it’s you writing your own story in the Scalzi/Duncan (background-&-character) canon, doesn’t mean it’s not an infringement of our copyrights. However, the morality of such a work is a different issue.

    Currently, fanfic does have a weak moral injuntion against it, I’d say, BUT… different cultures have different mores, and different sub-cultures can have different mores than the culture-at-large. Within the culture of fanfic that moral injunction has been scrapped. For various reasons, fanfic writers simply do not consider what they’re doing to be immoral. In fact, it might well be argued that, even in the wider culture, creative input in terms of background and character is undervalued to the extent that most consider such copyright infringement basically trivial and harmless, arguable at least if not simply acceptable. Most people just shrug off J.K. Rowling fanfic as a weird hobby. This pretty much pivots, I suspect, on the non-profit nature of the work. Were Scalzi or I to write our own Harry Potter books, self-publish and sell them Print-on-Demand, we’d probably be judged as scurrilous rogues by the culture-at-large. I suspect fanfic writers would be even more morally outraged since a) they have more respect for writing in general, as devoted readers; and b) this is in direct contravention of the mores of the fanfic community, which validate copyright infringement on the twin foundations of attribution and non-profit.

    Now, personally, I don’t care whether fanfic is moral or immoral because mores are fundamentally group-think. If the rest of the world decided that actually it was OK to sell Rowling fanfic as long as it was attributed (or vice-versa, to distribute it free but make no nod to the source), I’d still consider it unethical. As it stands, I largely think that attribution and non-profit are two factors which mitigate the ethical dubiety of fanfic (i.e. it demonstrates a certain ethics on the part of the fanfic writer, one which earns it a degree of respect and tolerance from me), but there are other factors which I consider equally important. Respect for the author’s themes, their beliefs originality, the uniqueness of an interpretation, and the potential this has to expand understanding. I think it’s the ethical responsibility of the writer to not create a travesty of the source.

    The thing about ethics, though, is that (at least in my ethics) you’ve got to understand that they’re personal. And what constitutes a travesty is equally personal. I’m not going to judge a fanfic writer ethically for not living up to a standard I set for myself, when all they want to do is entertain. But if the work read as right-wing propaganda, I might well issue a Cease & Desist, because I don’t want my creations co-opted to that purpose. Rowling seems not to care about Harry/Draco slash in all its BDSM perversity (though I suspect that’s rather at odds with her own thematic intent). Robin Hobb applies a harsher ethic, disregarding all fanfic as intrinsically unoriginal and therefore a bastardisation of her work.

    At the end of the day, fanfic is illegal, whether it’s moral or immoral is just a matter of which culture you belong to (and therefore irrelevant), and whether it’s ethical or not is dependant on the original creator’s ethics and the fanfic writer’s attitude to those ethics. Basically, I built the sandbox, I put the sand in it, and if you want to play in it for free, you play by my rules. Don’t break the box. Don’t pee in the sand. Don’t copy the sandcastle I built ten minutes ago and claim it was your idea. Don’t copy that sandcastle but say it was my idea only to then top it off with a Nazi flag. Don’t copy that sandcastle, change it slightly, and then moan at me because another kiddy copies yours slavishly and claims it was their idea; I’m not here to babysit.

    Be warned, that breaking any of those rules will result in your immediate expulsion from the sandbox. Until you break those rules, however, I honestly couldn’t give a damn. Hell, I’d be curious to see what you come up with.

    As for this nameless fanfic-writer-turned-pro? Now she has her own sandbox and, apparently, an angry mob of disgruntled doubters, you can bet her sandcastles will be inspected pretty rigorously to see if they bear a remarkable resemblance to those of other writers. If she’s dumb, naive, duplicitous or just untalented, I imagine we’ll find out soon enough.

  141. There’s three issues here which muddy the matter, as far as I’m concerned; fanfic and plagiarism both need to be judged in terms of legality and morality (from mores — socially-proscribed group standards) but we also have to judge in terms of ethics (from ethos individually-selected personal standards).

    Now, currently, both fanfic and plagiarism have legal injunctions against them. In the hope of explicating how and why we have differences over the is/is-not and should-be-should-not, here’s a very simple analogue: A story requires background, characters and textual rendition just as a song has music, lyrics and audio rendition. In stories those three things tend to be done by the same person, but in songs it’s quite common for them to be done by different people entirely — e.g. you might have Burt Bacharach writing music, Hal David writing the lyrics and Dusty Springfield rendering them both in a performanve. To use the common fanfic sandbox metaphor, if I go to a party and sing “Anyone Who Had A Heart” to mates, this is me “playing in the Bacharach/David sandbox”. This is not a public performance, so it’s fair enough. If I record my version and distribute it, however, Bacharach and David are quite entitled to stomp on me for copyright infringement. If I put different lyrics to the same tune, Bacharach can stomp on me. If I put a different tune to the same lyrics, David can stomp on me.

    So say Scalzi and I collaborate with a third writer, X; Scalzi supplies the OMW background, I supply characters from VELLUM, and X writes the actual text of the story. Scalzi and I are to X as Bacharach and David are to Dusty. X can’t do it without our permission; and we could equally well let Y or Z write their own story. Similarly, Dusty can’t record “Anyone Who Had A Heart” without the say-so of Bacharach and David; and Bacharach and David could equally well grant that say-so to Dione Warwick or Diana Ross.

    Now Dione or Diana might sing the song at a private party, but they’d be stomped on if they tried to put out a single without permission. Indeed, there are explicit performance licenses you have to get even if you just want to sing the song at a gig, regardless of whether that gig is paid or free. Similarly, X might write a story using this Scalzi/Duncan “canon” and read it to a few mates at a party. Theoretically, they could set up a live broadcast over the internet which was open to the public and, either charge the audience or not; the (il)legality of this might be considered arguable because fiction is not generally distributed to the public in this manner, so the question would arise as to whether this performance was/was-not an act of publication. The live, ephemeral, unrecorded nature of the story would, I’m sure, cause arguments, but I suspect that this would in fact be found to be an act of making-public, hence an act of publication, and hence a copyright infringment.

    And this is where fanfic becomes illegal: because it is published. With fanfic the story isn’t just made public (i.e. published) as a live, ephemeral, unrecorded broadcast; it is laid down in a permanent, distributable form, recorded like a single. It doesn’t matter if the single is distributed only as an MP3 free over the internet, with Dione or Diana making no profit. It doesn’t matter if it’s a labour of love which actually helps Bacharach’s and David’s careers in the long term. Neither of those are considered (legally) relevant. What matters is that Bacharach and David make their living from the publication of their work and — either because we want to encourage them (US law) or because we recognise their ownership (UK law) — they are entitled to withold or grant the right of publication to whomsoever they choose, and to seek recompense when that right is infringed. Indeed, they even get to choose whether or not to seek recompense on a case-by-case basis.

    The confusion comes in because of a few things:

    1) The conflation of background, character and textual rendition in single-authorship, means we fail to distinguish the separate ownership of these components of the story. It’s like the hypothetical X writes under the name Scalcan Dunzi; and his textual rendition is so much in the foreground that we’re unaware that, behind the scenes, it’s actually Scalzi and Duncan who did a lot of the work; so we think as long as we’re doing our own plot and style, we’re not appropriating this Scalcan Dunzi guy’s work but rather reimagining it with our own unique arrangement. In truth, we are creating our own unique arrangement, but we are still infringing the copyright of Scalzi and Duncan, just as we’d be with Bacharach and David if we ignored the importance of music/lyric writing and thought we were just doing a cover of a “Dusty Springfield” song. It’s our own version, right? We’re just playing in her sandbox. No, the sandbox doesn’t even belong to her. She rents it from Bacharach and David who are in the sandbox production and rental business. Most writers are seen primarily as sandcastle-builders, but they have to build the box (music / background) and put the sand (lyrics / characters) in it first.

    2) Many fanfic writers seem to think that what they’re doing is like singing “Anyone Who Had A Heart” at a private party (a live reading amongst friends), when it is not even equivalent to a cover at a gig (a live webcast), but is in fact equivalent to slapping a downloadable MP3 of your own performance of “Anyone Who Had A Heart” up on the internet (a published story). Presumably this is because the online media in which fanfics circulate are seen as communities of friends rather than public gatherings of strangers; they have all the character of a huge party, with gossip and banter, friendships and feuds. They are, nonetheless, venues/vectors of publication and distribution.

    3) There’s a huge culture of covers in music and spin-offery in fiction, the licensing of which takes place so far in the background that those outside the industry may not even realise it’s there. Try to get permission to use song lyrics in a novel and you’ll see just how big and monstrous the bureaucracy is behind the scenes. Try to use them without permission and you may well be royally screwed. But we see bands doing covers on stage, releasing them as singles; we hear them on soundtracks on movies and TV. Likewise we have movie tie-ins, shared-worlds, merchandise and so on, so much that these copies (and even if it’s just of a character’s likeness in the form of a figurine, it’s still a copy) permeate our culture to the extent that they seem “ours”. The illegal stuff is everywhere — bootlegs and pirate copies — to a level impossible to police. The time-limitation makes it even more confusing: is this in copyright or out? Or how private is private? Does a wedding singer have to pay a fee for singing “Anyone Who Had A Heart”? I know that in the UK at least there’s a whole registry thing so that club DJs can play tracks, pay a middle-man, and the artists get their fair share. The point is, in such a culture it’s not surprising you end up with a sub-culture based on shared copies where those involved will argue that what they’re doing is not actually illegal.

    Unfortunately, this is where morality kicks in and confuses it even further, because laws and mores aren’t in a one-to-one relationship. Fanfic is, like it or not, illegal by my understanding of copyright. Just because it’s you singing your own version of the Bacharach/David (music-&-lyrics) song, doesn’t mean it’s not an infringement of their copyrights. Just because it’s you writing your own story in the Scalzi/Duncan (background-&-character) canon, doesn’t mean it’s not an infringement of our copyrights. However, the morality of such a work is a different issue.

    Currently, fanfic does have a weak moral injuntion against it, I’d say, BUT… different cultures have different mores, and different sub-cultures can have different mores than the culture-at-large. Within the culture of fanfic that moral injunction has been scrapped. For various reasons, fanfic writers simply do not consider what they’re doing to be immoral. In fact, it might well be argued that, even in the wider culture, creative input in terms of background and character is undervalued to the extent that most consider such copyright infringement basically trivial and harmless, arguable at least if not simply acceptable. Most people just shrug off J.K. Rowling fanfic as a weird hobby. This pretty much pivots, I suspect, on the non-profit nature of the work. Were Scalzi or I to write our own Harry Potter books, self-publish and sell them Print-on-Demand, we’d probably be judged as scurrilous rogues by the culture-at-large. I suspect fanfic writers would be even more morally outraged since a) they have more respect for writing in general, as devoted readers; and b) this is in direct contravention of the mores of the fanfic community, which validate copyright infringement on the twin foundations of attribution and non-profit.

    Now, personally, I don’t care whether fanfic is moral or immoral because mores are fundamentally group-think. If the rest of the world decided that actually it was OK to sell Rowling fanfic as long as it was attributed (or vice-versa, to distribute it free but make no nod to the source), I’d still consider it unethical. As it stands, I largely think that attribution and non-profit are two factors which mitigate the ethical dubiety of fanfic (i.e. it demonstrates a certain ethics on the part of the fanfic writer, one which earns it a degree of respect and tolerance from me), but there are other factors which I consider equally important. Respect for the author’s themes, their beliefs originality, the uniqueness of an interpretation, and the potential this has to expand understanding. I think it’s the ethical responsibility of the writer to not create a travesty of the source.

    The thing about ethics, though, is that (at least in my ethics) you’ve got to understand that they’re personal. And what constitutes a travesty is equally personal. I’m not going to judge a fanfic writer ethically for not living up to a standard I set for myself, when all they want to do is entertain. But if the work read as right-wing propaganda, I might well issue a Cease & Desist, because I don’t want my creations co-opted to that purpose. Rowling seems not to care about Harry/Draco slash in all its BDSM perversity (though I suspect that’s rather at odds with her own thematic intent). Robin Hobb applies a harsher ethic, disregarding all fanfic as intrinsically unoriginal and therefore a bastardisation of her work.

    At the end of the day, fanfic is illegal, whether it’s moral or immoral is just a matter of which culture you belong to (and therefore irrelevant), and whether it’s ethical or not is dependant on the original creator’s ethics and the fanfic writer’s attitude to those ethics. Basically, I built the sandbox, I put the sand in it, and if you want to play in it for free, you play by my rules. Don’t break the box. Don’t pee in the sand. Don’t copy the sandcastle I built ten minutes ago and claim it was your idea. Don’t copy that sandcastle but say it was my idea only to then top it off with a Nazi flag. Don’t copy that sandcastle, change it slightly, and then moan at me because another kiddy copies yours slavishly and claims it was their idea; I’m not here to babysit.

    Be warned, that breaking any of those rules will result in your immediate expulsion from the sandbox. Until you break those rules, however, I honestly couldn’t give a damn. Hell, I’d be curious to see what you come up with.

    As for this nameless fanfic-writer-turned-pro? Now she has her own sandbox and, apparently, an angry mob of disgruntled doubters, you can bet her sandcastles will be inspected pretty rigorously to see if they bear a remarkable resemblance to those of other writers. If she’s dumb, naive, duplicitous or just untalented, I imagine we’ll find out soon enough.

  142. John’s put up another post for the discussion of the legality of fanfic, but other than that, one point in response:

    Similarly, Dusty can’t record “Anyone Who Had A Heart” without the say-so of Bacharach and David; and Bacharach and David could equally well grant that say-so to Dione Warwick or Diana Ross.

    This is not true. There is a compulsory license for cover versions of songs that means that you can record covers even without permission of the copyright holders, if you do not “change the basic melody or fundamental character of the work” and pay royalties. See section 115 of the Copyright Act (text).

    Note this only applies to “nondramatic musical works.”

  143. John’s put up another post for the discussion of the legality of fanfic, but other than that, one point in response:

    Similarly, Dusty can’t record “Anyone Who Had A Heart” without the say-so of Bacharach and David; and Bacharach and David could equally well grant that say-so to Dione Warwick or Diana Ross.

    This is not true. There is a compulsory license for cover versions of songs that means that you can record covers even without permission of the copyright holders, if you do not “change the basic melody or fundamental character of the work” and pay royalties. See section 115 of the Copyright Act (text).

    Note this only applies to “nondramatic musical works.”

  144. I’m generally of the opinion that someone who plagiarizes in fan fiction is that much more likely to plagiarize in pro fiction. Why? The only point to fan fiction is to create more of a universe you love, to share with other people who love the universe.

    If you’re plagiarizing to “write” fanfic, then you either don’t love the universe enough to actually create material for it, or love it so darn much that you want to create material for it despite a lack of ability. If you’ll copy down pages and pages of other people’s work essentially word for word, when the only point of the endeavor is to make friends and talk about the source material, what on earth are you going to do when you’ve got money and deadlines and a burgeoning career as part of the package?

    In any case, I can’t wait until her book comes out, because I’m looking forward to the instant fandom analysis. I certainly hope for her sake that she did write every single word, because if she didn’t… well, actually, I hope she didn’t, because the fireworks promise to be spectacular.

  145. Crabby, I have to say I hope that she doesn’t earn herself any viable accusations. The last thing we need is yet another newspaper article that casts fandom in a bad light. It just leads to stupid generalizations (my personal favorite being that fandom is nothing but a sea of gay smut). If she’s accused and loses, it will be “look what happens when you let your children join fandom.” If she’s accused and wins, it will be “Those crazy nerds just can’t handle someone trying to make something of themself.”

    Would the resulting flamewars and drama be hilarious? I imagine so (why yes, I am a toddler. A mean-spirited, ‘FIJAH’ toddler). But like many such pleasures, it would be fleeting, and the resulting hangover would leave everyone involved swearing to never ride the drama llama again. I’m not even in the HP fandom, but I have friends who are, and I don’t want people getting sick from drama poisoning all over my friends list.

    In short: Every time fandom drama catches the public eye, God kills a tribble. Please, think of the tribbles.


    PS: Scalzi, in response to your inquiry upthread, Chacos are a kind of footwear. Watershoes. Specifically, water shoes sturdy enough to hike in. They’re pretty awesome, but at 80 bucks a pair, they’re way too rich for my blood.

  146. Crabby, I have to say I hope that she doesn’t earn herself any viable accusations. The last thing we need is yet another newspaper article that casts fandom in a bad light. It just leads to stupid generalizations (my personal favorite being that fandom is nothing but a sea of gay smut). If she’s accused and loses, it will be “look what happens when you let your children join fandom.” If she’s accused and wins, it will be “Those crazy nerds just can’t handle someone trying to make something of themself.”

    Would the resulting flamewars and drama be hilarious? I imagine so (why yes, I am a toddler. A mean-spirited, ‘FIJAH’ toddler). But like many such pleasures, it would be fleeting, and the resulting hangover would leave everyone involved swearing to never ride the drama llama again. I’m not even in the HP fandom, but I have friends who are, and I don’t want people getting sick from drama poisoning all over my friends list.

    In short: Every time fandom drama catches the public eye, God kills a tribble. Please, think of the tribbles.


    PS: Scalzi, in response to your inquiry upthread, Chacos are a kind of footwear. Watershoes. Specifically, water shoes sturdy enough to hike in. They’re pretty awesome, but at 80 bucks a pair, they’re way too rich for my blood.

  147. Kate: Fair enough, but note the requirements outlined…

    (b) Notice of Intention to Obtain Compulsory License. —

    (1) Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after making, and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner. If the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

    (2) Failure to serve or file the notice required by clause (1) forecloses the possibility of a compulsory license and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509.

    So there are procedures. I assume this is in place so that Bacharach and David are in a position to *check* whether (they think) the intended work does or does not “change the basic melody or fundamental character of the work”. This is not, I agree, the same as Dusty recording a Bacharach/David song without their “say-so”, but mapping back to fanfiction… it would be saying that if you didn’t notify the copyright-holders within thirty days of writing your fanfic and before posting it on the internet, or even if you did, if they then argued that you’d changed “the fundamental character of their work”, then you would be up shit creek without a paddle.

    Actually, the idea of “fundamental character” is not far off what I’m saying about an extra ethical responsibility, over and above attribution and non-profit, not to produce a work the copyright-owner considers a travesty. Of course, “character” is such a vague word, you could have wildly different judgements in different cases. I mean, Harry/Draco slash is a clear-cut case (YA >> Gay Porn: no contest), but Anne Rice has always struck me as a slash writer, anyway, so if you wrote some Lestat/Louis slash would it change the character (Softcore Gay Porn >> Hardcore Gay Porn: ummm). Hell, I can see her arguing that “you changed the fundamental character of my work by writing in less turgid, florid prose”.

  148. Kate: Fair enough, but note the requirements outlined…

    (b) Notice of Intention to Obtain Compulsory License. —

    (1) Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after making, and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner. If the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

    (2) Failure to serve or file the notice required by clause (1) forecloses the possibility of a compulsory license and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509.

    So there are procedures. I assume this is in place so that Bacharach and David are in a position to *check* whether (they think) the intended work does or does not “change the basic melody or fundamental character of the work”. This is not, I agree, the same as Dusty recording a Bacharach/David song without their “say-so”, but mapping back to fanfiction… it would be saying that if you didn’t notify the copyright-holders within thirty days of writing your fanfic and before posting it on the internet, or even if you did, if they then argued that you’d changed “the fundamental character of their work”, then you would be up shit creek without a paddle.

    Actually, the idea of “fundamental character” is not far off what I’m saying about an extra ethical responsibility, over and above attribution and non-profit, not to produce a work the copyright-owner considers a travesty. Of course, “character” is such a vague word, you could have wildly different judgements in different cases. I mean, Harry/Draco slash is a clear-cut case (YA >> Gay Porn: no contest), but Anne Rice has always struck me as a slash writer, anyway, so if you wrote some Lestat/Louis slash would it change the character (Softcore Gay Porn >> Hardcore Gay Porn: ummm). Hell, I can see her arguing that “you changed the fundamental character of my work by writing in less turgid, florid prose”.

  149. I’m going to ignore the moral or legal issues because all people do is go round and round and round on them.

    From a purely craft perspective, in terms of what happens in writing and publishing and has for hundreds of years, authors “borrow” all the time from other authors or other texts, and we’re talking Shakespeare, we’re talking The Wind Done Gone, we’re talking writing a book from the POV of the the missing father in Little Women. If the copyright is expired then it’s okay; if the copyright is not, there’s often a fuss. But copyrights are a legal device. From the craft side of things, fanfic is another form of borrowing that’s been going on for a long, long time.

    When fanfic writers pen a story in a specific fandom, the debt to the original text is explicit in the paragraphs. Often, completely useless legal disclaimers nevertheless inform on the source material. But when fanfic writers borrow from unacknowledged sources, that to me is unethical. If an author wants to lift passages from Buffy or someone’s original knowledge or whatever, I’d want to see an acknowledgement that she’s borrowing from texts beyond the obvious one.

    Because there is a difference in putting out a derived text that you claim is your own creative work and putting out a text that is comprised in part of other people’s writing. Many fanfic writers have a sense of professionalism that rivals that of those who are paid for their original fiction. (And many do not.)

  150. I’m going to ignore the moral or legal issues because all people do is go round and round and round on them.

    From a purely craft perspective, in terms of what happens in writing and publishing and has for hundreds of years, authors “borrow” all the time from other authors or other texts, and we’re talking Shakespeare, we’re talking The Wind Done Gone, we’re talking writing a book from the POV of the the missing father in Little Women. If the copyright is expired then it’s okay; if the copyright is not, there’s often a fuss. But copyrights are a legal device. From the craft side of things, fanfic is another form of borrowing that’s been going on for a long, long time.

    When fanfic writers pen a story in a specific fandom, the debt to the original text is explicit in the paragraphs. Often, completely useless legal disclaimers nevertheless inform on the source material. But when fanfic writers borrow from unacknowledged sources, that to me is unethical. If an author wants to lift passages from Buffy or someone’s original knowledge or whatever, I’d want to see an acknowledgement that she’s borrowing from texts beyond the obvious one.

    Because there is a difference in putting out a derived text that you claim is your own creative work and putting out a text that is comprised in part of other people’s writing. Many fanfic writers have a sense of professionalism that rivals that of those who are paid for their original fiction. (And many do not.)

  151. an extra ethical responsibility, over and above attribution and non-profit, not to produce a work the copyright-owner considers a travesty

    Mmmph. This gets into something we’re talking about on the other thread, the fact that something *further* away from the original work is more likely to be deemed fair use.

    Query: does this ethical obligation you posit only apply to the works of living authors?

  152. an extra ethical responsibility, over and above attribution and non-profit, not to produce a work the copyright-owner considers a travesty

    Mmmph. This gets into something we’re talking about on the other thread, the fact that something *further* away from the original work is more likely to be deemed fair use.

    Query: does this ethical obligation you posit only apply to the works of living authors?

  153. Dean: “It is not possible to plagiarize ideas. For example, Dan Brown’s extensive borrowings of material for the Da Vinci Code are not plagiarism, nor is it copyright violation. Copyright extends to the specific execution of the idea.”

    Actually, that’s not entirely true.

    The storyline is incorporated into the copyright. It is, by law, a violation of copyright to rewrite Old Man’s War, even if I change the title, every word of the novel, every character’s name, all the place names and the names of all the technologies. If I steal the story, that’s enough for a copyright violation.

    In the case of at least one of the plagiarism cases against Brown, it was argued that Brown basically stole the storyline of an earlier published novel.

    I recently read an article on this in, I think, the New Yorker, about one of the accusations of plagiarism against Brown.

    The law, however, does state that there are some plot considerations that are typical to a genre, and cannot be used as plagiarism. (There’s a French word for this, which I forget–I don’t think it’s “mise-en-scene” but it might be.)

    The article said that you might expect a crime novel to contain references to gang violence and money laundering, and the presence of both in two different works does not provide evidence that one is plagiarized from the other.

    When I read that, I said to myself: Also, in all cop TV shows and movies, the investigation requires the police officers to go to a strip club. But that’s another discussion.

    Kevin: “I didn’t know that about Forever War. But both books do deal with topics that Heinlein worked with, and I am still not sure the fact that the books came upon their subjects coincidentally and not as a direct response to Heinlein changes the larger point.”

    Hmmm… This is a tricky point to try to articulate, even though, having read both novels, it’s easy to grok.

    The Forever War has a few elements of its premise in common with ST, but, really, that’s all it has. They’re both novels about young men who enter basic, infantry training in the not-so-distant future, and go off to fight a space war against aliens with a hive mind. In both novels, being an infantryman is presented as a highly technical occupation. In both novels, the infantry wears powered armor that combines space suits with deadly personal weaponry and the ability to give the wearer super-strength.

    But, other than those things, the novels are completely different. The main difference: The hero of ST finds battle to be a harsh environment, but an ennobling one. He thrives, succeeds, and becomes a man and officer, proud to serve in a noble war. The hero of TFW hates the war, he thinks it’s stupid and that it wasted his life. Another major difference: The war ST is fought using faster-than-light travel, and soldiers can zip across the galaxy in days or weeks. OTOH, the soldiers of TFW feel relativistic effects, and the hero of that novel experiences centuries of change in society every time he goes home–to the point where society thinks he’s an immoral pervert for being a heterosexual.

    Um, this would be a good time to disclose that the author of TFW, Joe Haldeman, and his wife, are friends of our family. So you may choose to dismiss what I’m saying as personal bias. But I think I’m making good arguments anyway.

    Now here’s the point: Copyright violation doesn’t exist in the vacuum. If the copyright owner doesn’t say there’s a violation, then no violation exists. If Heinlein had chosen to sue Haldeman, we might have something to wonder about–but Heinlein didn’t sue, or even criticize; on the contrary, he praised TFW. So there’s no copyright violation.

    (FWIW, Heinlein said that he and Haldeman agreed that the draft was morally wrong. That’s another major difference between ST and TFW–in ST, the soldiers are volunteers, but in TFW, the soldiers are draftees. Heinlein disagreed with some of Haldeman’s other points, but said that Haldeman–who went to Vietnam and got shot up pretty bad–had earned the right to speak out.)

  154. Dean: “It is not possible to plagiarize ideas. For example, Dan Brown’s extensive borrowings of material for the Da Vinci Code are not plagiarism, nor is it copyright violation. Copyright extends to the specific execution of the idea.”

    Actually, that’s not entirely true.

    The storyline is incorporated into the copyright. It is, by law, a violation of copyright to rewrite Old Man’s War, even if I change the title, every word of the novel, every character’s name, all the place names and the names of all the technologies. If I steal the story, that’s enough for a copyright violation.

    In the case of at least one of the plagiarism cases against Brown, it was argued that Brown basically stole the storyline of an earlier published novel.

    I recently read an article on this in, I think, the New Yorker, about one of the accusations of plagiarism against Brown.

    The law, however, does state that there are some plot considerations that are typical to a genre, and cannot be used as plagiarism. (There’s a French word for this, which I forget–I don’t think it’s “mise-en-scene” but it might be.)

    The article said that you might expect a crime novel to contain references to gang violence and money laundering, and the presence of both in two different works does not provide evidence that one is plagiarized from the other.

    When I read that, I said to myself: Also, in all cop TV shows and movies, the investigation requires the police officers to go to a strip club. But that’s another discussion.

    Kevin: “I didn’t know that about Forever War. But both books do deal with topics that Heinlein worked with, and I am still not sure the fact that the books came upon their subjects coincidentally and not as a direct response to Heinlein changes the larger point.”

    Hmmm… This is a tricky point to try to articulate, even though, having read both novels, it’s easy to grok.

    The Forever War has a few elements of its premise in common with ST, but, really, that’s all it has. They’re both novels about young men who enter basic, infantry training in the not-so-distant future, and go off to fight a space war against aliens with a hive mind. In both novels, being an infantryman is presented as a highly technical occupation. In both novels, the infantry wears powered armor that combines space suits with deadly personal weaponry and the ability to give the wearer super-strength.

    But, other than those things, the novels are completely different. The main difference: The hero of ST finds battle to be a harsh environment, but an ennobling one. He thrives, succeeds, and becomes a man and officer, proud to serve in a noble war. The hero of TFW hates the war, he thinks it’s stupid and that it wasted his life. Another major difference: The war ST is fought using faster-than-light travel, and soldiers can zip across the galaxy in days or weeks. OTOH, the soldiers of TFW feel relativistic effects, and the hero of that novel experiences centuries of change in society every time he goes home–to the point where society thinks he’s an immoral pervert for being a heterosexual.

    Um, this would be a good time to disclose that the author of TFW, Joe Haldeman, and his wife, are friends of our family. So you may choose to dismiss what I’m saying as personal bias. But I think I’m making good arguments anyway.

    Now here’s the point: Copyright violation doesn’t exist in the vacuum. If the copyright owner doesn’t say there’s a violation, then no violation exists. If Heinlein had chosen to sue Haldeman, we might have something to wonder about–but Heinlein didn’t sue, or even criticize; on the contrary, he praised TFW. So there’s no copyright violation.

    (FWIW, Heinlein said that he and Haldeman agreed that the draft was morally wrong. That’s another major difference between ST and TFW–in ST, the soldiers are volunteers, but in TFW, the soldiers are draftees. Heinlein disagreed with some of Haldeman’s other points, but said that Haldeman–who went to Vietnam and got shot up pretty bad–had earned the right to speak out.)

  155. To Barry and Justine,

    I do believe it is wrong to send people death threats but you can’t paint her as a victim when in the past she was the instigator of these things, where she has been involved in banning people from the fandom for ‘copying the spirit of her work’ even though that particular fanfic story came out days before hers. And, has used her fangirls to descend upon anyone who disagreed with her or critiqued her work or even dared to say ‘plagiarism’ in their own personal livejournals.

    And Justine, getting a publishing contract based on someone’s rep vs. writing are two different things.

    Again, let me be clear I don’t believe it is right to ‘issue death threats’ to this writer but I don’t believe it was right when her fangirls did it to others especially that young vulnerable fan whose mother was dying of cancer.

  156. To Barry and Justine,

    I do believe it is wrong to send people death threats but you can’t paint her as a victim when in the past she was the instigator of these things, where she has been involved in banning people from the fandom for ‘copying the spirit of her work’ even though that particular fanfic story came out days before hers. And, has used her fangirls to descend upon anyone who disagreed with her or critiqued her work or even dared to say ‘plagiarism’ in their own personal livejournals.

    And Justine, getting a publishing contract based on someone’s rep vs. writing are two different things.

    Again, let me be clear I don’t believe it is right to ‘issue death threats’ to this writer but I don’t believe it was right when her fangirls did it to others especially that young vulnerable fan whose mother was dying of cancer.

  157. To Barry and Justine,

    I do believe it is wrong to send people death threats but you can’t paint her as a victim when in the past she was the instigator of these things, where she has been involved in banning people from the fandom for ‘copying the spirit of her work’ even though that particular fanfic story came out days before hers. And, has used her fangirls to descend upon anyone who disagreed with her or critiqued her work or even dared to say ‘plagiarism’ in their own personal livejournals.

    And Justine, getting a publishing contract based on someone’s rep vs. writing are two different things.

    Again, let me be clear I don’t believe it is right to ‘issue death threats’ to this writer but I don’t believe it was right when her fangirls did it to others especially that young vulnerable fan whose mother was dying of cancer.

  158. RE: Hal Duncan’s 1st comment

    That is the most incredible comment I have ever seen posted on a weblog.

  159. RE: Hal Duncan’s 1st comment

    That is the most incredible comment I have ever seen posted on a weblog.

  160. Erika:

    “I do believe it is wrong to send people death threats but you can’t paint her as a victim when in the past she was the instigator of these things, where she has been involved in banning people from the fandom for ‘copying the spirit of her work’ even though that particular fanfic story came out days before hers.”

    Yes, she shouldn’t have worn that dress.

    As far as I know there’s nothing in a fanfic-land cat fight that logically precipitates the criminal act of threatening someone’s life, and it’s odious and stupid to suggest there’s any sort of exculpatory action or rationalization or equivalence to tie the former to the latter.

    So, Erika, let’s not have any more of that in this thread. Period, end of sentence, done.

  161. Erika:

    “I do believe it is wrong to send people death threats but you can’t paint her as a victim when in the past she was the instigator of these things, where she has been involved in banning people from the fandom for ‘copying the spirit of her work’ even though that particular fanfic story came out days before hers.”

    Yes, she shouldn’t have worn that dress.

    As far as I know there’s nothing in a fanfic-land cat fight that logically precipitates the criminal act of threatening someone’s life, and it’s odious and stupid to suggest there’s any sort of exculpatory action or rationalization or equivalence to tie the former to the latter.

    So, Erika, let’s not have any more of that in this thread. Period, end of sentence, done.

  162. I agree with Dan Geiser above.

    Vellum just moved to the front of my “to read” list because of Hal Duncan’s post.

  163. I agree with Dan Geiser above.

    Vellum just moved to the front of my “to read” list because of Hal Duncan’s post.

  164. I was, sadly, called away for business, and only just gotten back to this thread. I see it’s moved on quite a way from the point where I left, so I’ll keep my comments brief.

    My main point (and perhaps not perfectly phrased) was that The Wind Done Gone, which many people use as if it were a case study of fanfic is not relevant. The book was not fanfic. It was a professionally produced parody. We never will really know it’s true, precedent setting legal status. But, we don’t need to because it was not fanfic. It is not a valid case to show that fanfic is legal.

    Someone mentioned somewhere above about “properly disclaimed” fiction. If the original creator has not given you permission to write in their universe with their characters, putting a disclaimer does nothing to protect the fanfic writer. Fanfic writers rely on the concept that an author would be biting the hand that feeds it by taking fanfic writers to court. That’s a nice loophole to count on, but sooner or later, some author will go all Harlan Ellison on a fanfic writer in court, and the fanfic writer will lose, clearly and decisively.

    Someone asked for examples of authors who have had to cancel publications due to trouble with fanfic writers. Marion Zimmer Bradley not only had to cancel the first book in a new Darkover trilogy because some fan had written a fanfic on a similar plotline and sent the damned thing to her. She had to stop the Friends of Darkover anthologies because of similar problems. So, the readers lost a new chapter in MZB’s Darkover universe, and lots of new short Darkover fiction because some fanfic writer couldn’t play in their own yard. Misty Lackey ran into similar problems. I also recall another instance, though the name of the author does not pop to mind at the moment.

    As to my friend Patrick’s comments about my view on the waste of writing fanfic, much as I do admire him and his opinions in most areas regarding this industry (others here take note that you won’t find a more well-informed student of the publishing industry than Patrick), I take them under advisement. I used to write fanfic (Trek, Dukes of Hazzard, Gone With the Wind (as it so happens). I had considered such excursions exercises in plot, pacing and character until I realized that the plots, pacing and character were not my own. Once I devoted myself exclusively to writing in my own universes (except for a foray into a Transformers media-tie-in), I realized that my style of writing did not match those other things I was spending my time on. My typing got better, but my writing… no. I consider that I may not be a perfect case-study, but other former fanfic writers who are now pros have said the same to me. I’m willing to consider that there are other benefits to writing fanfic as Patrick posits, but I’m not convinced. I expect others will point to Patrick’s post as pure evidence that what they are doing is valuable.

    The reason that fanfic is suddenly such a hot-button issue is that fanfic that used to be overlooked by authors when it was limited to small numbers of copies being passed among friends is now available to millions of people on the Internet. It is being published in quantity (in some cases on sites that derive income from advertising). It is no longer a hobby or a tribute. It’s an infringement of the author’s rights. Rationalize it any way you want, but those worlds and characters do not belong to the fans.

    As for me, I am leaving for a vacation with no Internet connection. I’m unlikely to get back here before I leave, and you will all likely consider my absence a relief. When I’m back, I’ll see where this all led.

    Later.

  165. I was, sadly, called away for business, and only just gotten back to this thread. I see it’s moved on quite a way from the point where I left, so I’ll keep my comments brief.

    My main point (and perhaps not perfectly phrased) was that The Wind Done Gone, which many people use as if it were a case study of fanfic is not relevant. The book was not fanfic. It was a professionally produced parody. We never will really know it’s true, precedent setting legal status. But, we don’t need to because it was not fanfic. It is not a valid case to show that fanfic is legal.

    Someone mentioned somewhere above about “properly disclaimed” fiction. If the original creator has not given you permission to write in their universe with their characters, putting a disclaimer does nothing to protect the fanfic writer. Fanfic writers rely on the concept that an author would be biting the hand that feeds it by taking fanfic writers to court. That’s a nice loophole to count on, but sooner or later, some author will go all Harlan Ellison on a fanfic writer in court, and the fanfic writer will lose, clearly and decisively.

    Someone asked for examples of authors who have had to cancel publications due to trouble with fanfic writers. Marion Zimmer Bradley not only had to cancel the first book in a new Darkover trilogy because some fan had written a fanfic on a similar plotline and sent the damned thing to her. She had to stop the Friends of Darkover anthologies because of similar problems. So, the readers lost a new chapter in MZB’s Darkover universe, and lots of new short Darkover fiction because some fanfic writer couldn’t play in their own yard. Misty Lackey ran into similar problems. I also recall another instance, though the name of the author does not pop to mind at the moment.

    As to my friend Patrick’s comments about my view on the waste of writing fanfic, much as I do admire him and his opinions in most areas regarding this industry (others here take note that you won’t find a more well-informed student of the publishing industry than Patrick), I take them under advisement. I used to write fanfic (Trek, Dukes of Hazzard, Gone With the Wind (as it so happens). I had considered such excursions exercises in plot, pacing and character until I realized that the plots, pacing and character were not my own. Once I devoted myself exclusively to writing in my own universes (except for a foray into a Transformers media-tie-in), I realized that my style of writing did not match those other things I was spending my time on. My typing got better, but my writing… no. I consider that I may not be a perfect case-study, but other former fanfic writers who are now pros have said the same to me. I’m willing to consider that there are other benefits to writing fanfic as Patrick posits, but I’m not convinced. I expect others will point to Patrick’s post as pure evidence that what they are doing is valuable.

    The reason that fanfic is suddenly such a hot-button issue is that fanfic that used to be overlooked by authors when it was limited to small numbers of copies being passed among friends is now available to millions of people on the Internet. It is being published in quantity (in some cases on sites that derive income from advertising). It is no longer a hobby or a tribute. It’s an infringement of the author’s rights. Rationalize it any way you want, but those worlds and characters do not belong to the fans.

    As for me, I am leaving for a vacation with no Internet connection. I’m unlikely to get back here before I leave, and you will all likely consider my absence a relief. When I’m back, I’ll see where this all led.

    Later.

  166. I was linked to this thread, and I am appalled to read Barry Goldblatt’s comment above.

    To be clear, the posts which are triggering the current kerfuffle were written by me. They appeared as a *record* of a large fandom scandal in a community devoted to… records of large fandom scandals.

    Despite several accusations I have read to the contrary, they were not posted in an attempt to “derail her writing career.” My understanding is that her professional connections are unlikely to care.

    Further, I might note that her first novel will not be released until sometime next year, and fandom has a very short memory.

    If people read her original work and enjoy it, that will be the deciding factor.

    For the record, I do not know who has been sending John links to this (though, apparently not good ones). It was not me, nor was it anyone affiliated with me. I do not know who has been sending death threats to the author, contacting her agent, or contacting her publisher. Again. It was not me, nor was it anyone affiliated with me.

  167. I was linked to this thread, and I am appalled to read Barry Goldblatt’s comment above.

    To be clear, the posts which are triggering the current kerfuffle were written by me. They appeared as a *record* of a large fandom scandal in a community devoted to… records of large fandom scandals.

    Despite several accusations I have read to the contrary, they were not posted in an attempt to “derail her writing career.” My understanding is that her professional connections are unlikely to care.

    Further, I might note that her first novel will not be released until sometime next year, and fandom has a very short memory.

    If people read her original work and enjoy it, that will be the deciding factor.

    For the record, I do not know who has been sending John links to this (though, apparently not good ones). It was not me, nor was it anyone affiliated with me. I do not know who has been sending death threats to the author, contacting her agent, or contacting her publisher. Again. It was not me, nor was it anyone affiliated with me.

  168. Sandra: the ethical obligation referenced was to write fanfic that the original author would not consider a travesty, not against plagiarism. I’m not sure if that was clear from your comment.

    Sean: I don’t really see why you think _The Wind Done Gone_ isn’t a good precedent for fanfic. You seem to think it’s the professional nature of it, but the only relevant characteristic of “professional” that I can think is that someone tried to make a profit on it. If anything, that it was sold in stores and was *nevertheless* “likely” to prevail on a fair use defense, indicates to me that the same thing posted on a web page as fanfic would be *even more likely* to be fair use.

    I also had other questions about your representations of copyright law, which are still listed above.

    Enjoy your vacation.

  169. Sandra: the ethical obligation referenced was to write fanfic that the original author would not consider a travesty, not against plagiarism. I’m not sure if that was clear from your comment.

    Sean: I don’t really see why you think _The Wind Done Gone_ isn’t a good precedent for fanfic. You seem to think it’s the professional nature of it, but the only relevant characteristic of “professional” that I can think is that someone tried to make a profit on it. If anything, that it was sold in stores and was *nevertheless* “likely” to prevail on a fair use defense, indicates to me that the same thing posted on a web page as fanfic would be *even more likely* to be fair use.

    I also had other questions about your representations of copyright law, which are still listed above.

    Enjoy your vacation.

  170. Hal: It’s not advisable to compare written fanfic to remakes of songs, because the rules for music are very specific and different than rules for other media. Anything referencing only phonorecords, for example, would have absolutely no bearing on the rules for literary creations (that compulsory license scheme, for example, is not something available for novels and therefore the idea of 30-day notice would be completely irrelevant in a court case over fanfic). Also, the notice included in the compulsory license scheme is there to speed the payment of the licensing fees, not to allow the original artists to evaluate the nature of the work. My understanding is that once the first recording of a song is made anyone has the right to record their own version it without needing permission of the original artist. (In many number of cases the original artist won’t even have actual notice of the new version, because it all depends on information about them being readily available, which in the case of many artists just is not the case. Check out the scholarship on “orphan works” and you’ll be amazed what percentage of copyrighted works have no obtainable information about who exactly owns their copyright.)

    Given that the music example isn’t relevant to fanfic, upon what do you base your understanding of copyright that renders fanfic obviously illegal? The law doesn’t enshrine the “you have to abide by my rules to play in my sandbox” idea; it instead creates a system by which a number of circumstances allow people to use someone else’s work without permission or remuneration.

    Sean: My simple question would be where you’re getting the support for the statement that fanfic writers will “lose, clearly and decisively.” A case citation would be nice, because as several of us have pointed out there aren’t any cases that we know of with a ruling dealing specifically with fanfiction. The fact is that one of the closest things that are on point are works like TWDG. Perhaps you should clarify what your definition of fanfic is? Because, like Kate, I’m confused as to why you think TWDG isn’t in all aspects, other than publication, just like fanfiction (it is, after all, a story written in someone else’s universe using someone else’s characters, plots, and words). I do hope you have a good vacation, but I’d love it if you or someone else could elaborate on this point.

  171. Hal: It’s not advisable to compare written fanfic to remakes of songs, because the rules for music are very specific and different than rules for other media. Anything referencing only phonorecords, for example, would have absolutely no bearing on the rules for literary creations (that compulsory license scheme, for example, is not something available for novels and therefore the idea of 30-day notice would be completely irrelevant in a court case over fanfic). Also, the notice included in the compulsory license scheme is there to speed the payment of the licensing fees, not to allow the original artists to evaluate the nature of the work. My understanding is that once the first recording of a song is made anyone has the right to record their own version it without needing permission of the original artist. (In many number of cases the original artist won’t even have actual notice of the new version, because it all depends on information about them being readily available, which in the case of many artists just is not the case. Check out the scholarship on “orphan works” and you’ll be amazed what percentage of copyrighted works have no obtainable information about who exactly owns their copyright.)

    Given that the music example isn’t relevant to fanfic, upon what do you base your understanding of copyright that renders fanfic obviously illegal? The law doesn’t enshrine the “you have to abide by my rules to play in my sandbox” idea; it instead creates a system by which a number of circumstances allow people to use someone else’s work without permission or remuneration.

    Sean: My simple question would be where you’re getting the support for the statement that fanfic writers will “lose, clearly and decisively.” A case citation would be nice, because as several of us have pointed out there aren’t any cases that we know of with a ruling dealing specifically with fanfiction. The fact is that one of the closest things that are on point are works like TWDG. Perhaps you should clarify what your definition of fanfic is? Because, like Kate, I’m confused as to why you think TWDG isn’t in all aspects, other than publication, just like fanfiction (it is, after all, a story written in someone else’s universe using someone else’s characters, plots, and words). I do hope you have a good vacation, but I’d love it if you or someone else could elaborate on this point.

  172. Dean: “It is not possible to plagiarize ideas. For example, Dan Brown’s extensive borrowings of material for the Da Vinci Code are not plagiarism, nor is it copyright violation. Copyright extends to the specific execution of the idea.”

    Mitch:
    Actually, that’s not entirely true.

    The storyline is incorporated into the copyright. It is, by law, a violation of copyright to rewrite Old Man’s War, even if I change the title, every word of the novel, every character’s name, all the place names and the names of all the technologies. If I steal the story, that’s enough for a copyright violation.

    No, that is not true. Copyright is the protection of the execution of an idea, not the idea itself.

    From Wikipedia: Copyright is a set of exclusive rights regulating the use of a particular expression of an idea or information.

    That’s why plagiarism has to be word-for-word copying.

    The relative similarity of two works exist on a continuum. At one end, we have two identical works, which everyone agrees would be a violation of copyright, and at the other we have two completely dissimilar works, which everyone agrees is not a violation of copyright. At some point rather near the first end, copyright violation occurs.

    It probably isn’t a violation of copyright if I write a book about a boy who discovers he’s a wizard and goes off to a wizard school with a friend and makes enemies etc. But if I wrote a book and used an entire passage word for word from Rowling’s HP book, that would be clear and unequivocal plagiarism and copyright violation.

    Likewise, if I write a piece of fiction set in Hogwart’s with Harry, Ron, Hermione, et al in it, I am writing a derivative work, because I am using the specific expression of Rowling’s ideas.

    In short, copyright is about specific expression.

    In the case of at least one of the plagiarism cases against Brown, it was argued that Brown basically stole the storyline of an earlier published novel.

    Sure. If what Lewis Perdue says is true is true (and I have little reason to doubt him) Brown ripped him off. But Perdue ripped off big chunks of Holy Blood, Holy Grail. And both of them are protected because it is only the specific expression of an idea that is copyrightable.

    I feel somewhat sorry for Perdue, but he will lose. He must lose. If not, then the estate of JRR Tolkien will stand to make billions from the ten thousand authors whose trilogies feature a band of hero-types wandering through hostile landscapes waving a magic dingus.

  173. Hmm. I don’t know what I’m doing wrong. Whenever I italicize more than one paragraph, the second (or perhaps it’s merely the final) paragraph remains normal. I could have sworn I specifically surrounded each paragraph with angleybracketed Is.

  174. Hmm. I don’t know what I’m doing wrong. Whenever I italicize more than one paragraph, the second (or perhaps it’s merely the final) paragraph remains normal. I could have sworn I specifically surrounded each paragraph with angleybracketed Is.

  175. Dean, _Vanity Fair_ says you’re wrong about whether copyright requires plagiarism. Check it out. (The article wasn’t in the New Yorker, I misremembered that. But I’m not misremembering their description of copyright violations as it applies to story.)

    Also, Lewis Perdue’s _The Da Vinci Legacy_ was copyright in 1983; _Holy Blood, Holy Grail_ was copyright 1982-83. Under those circumstances, I’d be startled if Perdue saw the latter book before he wrote his, much less ripped it off, the time interval is too short.

  176. Seconding Avocado’s comments. I helped beta-read her account of the author’s fanfic writing practices, and it was meant for fandom only. I’m amused that some people thought the publisher would care.

    On the other hand, Mr. Goldblatt needs to calm down. Maybe less sugar in his coffee. People posting negative comments about the author = “an orgy of violence?”

    Meanwhile. Death threats are an awful thing, and they do seem to be rather common in fandom. I see about one a week. Plenty of people are in Harry Potter fandom, and this has been the talk of the fandom lately. Conflating everyone who comments negatively about the author with the loonie who whips off a “Die! Die!” email? Into one big “they”. That’s just silly.

  177. Seconding Avocado’s comments. I helped beta-read her account of the author’s fanfic writing practices, and it was meant for fandom only. I’m amused that some people thought the publisher would care.

    On the other hand, Mr. Goldblatt needs to calm down. Maybe less sugar in his coffee. People posting negative comments about the author = “an orgy of violence?”

    Meanwhile. Death threats are an awful thing, and they do seem to be rather common in fandom. I see about one a week. Plenty of people are in Harry Potter fandom, and this has been the talk of the fandom lately. Conflating everyone who comments negatively about the author with the loonie who whips off a “Die! Die!” email? Into one big “they”. That’s just silly.

  178. Erika wrote: I do believe it is wrong to send people death threats but you can’t paint her as a victim when in the past she was the instigator of these things, where she has been involved in banning people from the fandom for ‘copying the spirit of her work’ even though that particular fanfic story came out days before hers. And, has used her fangirls to descend upon anyone who disagreed with her or critiqued her work or even dared to say ‘plagiarism’ in their own personal livejournals.

    This seems to me to get to the core of the argument. The argument is that this writer is Not A Very Nice Person.

    Whether there’s plagiarism in the author’s actual book — well, look, it’s certainly possible, some people can make good arguments for why they believe it’s likely, but trying to decide whether it’s true without reference to the actual book is just dumb.

    So clearly that’s not the argument.

    The argument is that this writer is Not A Very Nice Person.

    Which may very well be true. But here’s the thing: lots of writers are Not Very Nice People. Some are nice in person but unpleasant online, some are nice to you but rude to the waiter, some are nice until they get you into bed, some are nice until they suddenly flip out, some are actually nice but make a project of projecting a not-nice public persona because that appeals to their particular fan demographic, and some are just evil motherfuckers that you want to stay away from.

    Personally, I prefer the nice ones. But being Not Very Nice, on its own, hasn’t killed the careers of any writers I know of.

    Sometimes it probably even helps.

  179. Erika wrote: I do believe it is wrong to send people death threats but you can’t paint her as a victim when in the past she was the instigator of these things, where she has been involved in banning people from the fandom for ‘copying the spirit of her work’ even though that particular fanfic story came out days before hers. And, has used her fangirls to descend upon anyone who disagreed with her or critiqued her work or even dared to say ‘plagiarism’ in their own personal livejournals.

    This seems to me to get to the core of the argument. The argument is that this writer is Not A Very Nice Person.

    Whether there’s plagiarism in the author’s actual book — well, look, it’s certainly possible, some people can make good arguments for why they believe it’s likely, but trying to decide whether it’s true without reference to the actual book is just dumb.

    So clearly that’s not the argument.

    The argument is that this writer is Not A Very Nice Person.

    Which may very well be true. But here’s the thing: lots of writers are Not Very Nice People. Some are nice in person but unpleasant online, some are nice to you but rude to the waiter, some are nice until they get you into bed, some are nice until they suddenly flip out, some are actually nice but make a project of projecting a not-nice public persona because that appeals to their particular fan demographic, and some are just evil motherfuckers that you want to stay away from.

    Personally, I prefer the nice ones. But being Not Very Nice, on its own, hasn’t killed the careers of any writers I know of.

    Sometimes it probably even helps.

  180. Kate wrote: >>Sandra: the ethical obligation referenced was to write fanfic that the original author would not consider a travesty, not against plagiarism. I’m not sure if that was clear from your comment.

  181. Kate wrote: >>Sandra: the ethical obligation referenced was to write fanfic that the original author would not consider a travesty, not against plagiarism. I’m not sure if that was clear from your comment.

  182. Mitch:

    Dean, _Vanity Fair_ says you’re wrong about whether copyright requires plagiarism. Check it out. (The article wasn’t in the New Yorker, I misremembered that. But I’m not misremembering their description of copyright violations as it applies to story.)

    Possibly. But the courts agree with me. Perdue has lost, and is now attempting to have the Supreme Court hear him. If they do hear him – and it is, I think, doubtful that they will: copyright law is clear in the US and there is ample precedent – it seems highly doubtful that they will have any reason to overturn the lower court decision.

    Note that I didn’t say that copyright violation requires plagiarism. But if there isn’t outright blatant copying of large passages, then the similarities between the two stories have to be very strong indeed.

    I read the VF article, and while I thought it was sympathetic to Perdue (as I myself am, he seems like a nice guy) I didn’t get the same sense from the story. I left it feeling that Mnookin had the same feeling about Perdue that I do: nice guy, but he’s tilting at a windmill.

    As for my use of the term ‘ripped off’ to describe the similarities between Holy Blood, Holy Grail and Perdue’s book, you are right, it was too strong. But it rather proves my point: there are strong similarities between the two books, but there is no copyright violation.

  183. It matters because the two authors implicated were taking source material that did not belong to them and claiming it as their own.

    No one will dispute that Harry Potter fanfiction authors don’t own the characters. If someone showed up one day and tried to claim that Harry or Hermione or Ron belonged to them, they’d be laughed out of fandom. But no one knew that [named redacted by JS] were stealing passages from Pamela Dean, Francis Hodgson Burnett, and others–they were getting compliments for passages that were almost entirely stolen, and not once did they think to give credit where it was definitely do.

    Fanfiction is a grey area, I agree. But when a person gains literally thousands of followers based upon repeated, calculated deceit, then I’d say it definitely matters.

  184. Elena, at the risk of (me) sounding like a callous twit: can you talk a little more about whether, or why, or how that matters, as John put it, “outside this very specific community”? What is the wider world supposed to do about it?

    (Not disputing you, you understand; just trying to get the whole picture.)

  185. Elena, at the risk of (me) sounding like a callous twit: can you talk a little more about whether, or why, or how that matters, as John put it, “outside this very specific community”? What is the wider world supposed to do about it?

    (Not disputing you, you understand; just trying to get the whole picture.)

  186. Reminder, Elena and others, that I’ve made the executive decision not to name names here. Please respect that.

  187. Reminder, Elena and others, that I’ve made the executive decision not to name names here. Please respect that.

  188. Sean Fodera writes:

    “I’m willing to consider that there are other benefits to writing fanfic as Patrick posits”

    I posited no such thing. I said I didn’t buy your categorical assertion that there never could be such benefits.

    You really ought to know the difference between rejecting a categorical claim and asserting an equally categorical claim counter to the first. If I reject the statement “all bread is moldy” it doesn’t mean I’m claiming no moldy bread exists.

  189. Apologies for naming names.

    Mr. Moles: As others have mentioned, the offending author who will be published in 2007 has a ready-made fan base built upon lies. She has used her connections in the Harry Potter fan base to promote her book; her agent (I believe it’s her agent–might be her editor, but I don’t think so) lists her online pen name in his interests on LiveJournal. Her actions both now and in the past imply that much of her offline success in the publishing world stems from her prominence as a Harry Potter fanfiction author. She is, essentially, profiting from her plagarism. I have no doubt that legally she can come off smelling like a rose, but the part of the fanfiction community Mr. Scalzi is referring to feels that building a reputation by plagarizing in fanfic and then piloting that reputation into an offline career is morally reprehensible, even if legally allowable.

  190. Mitch

    I agree completely with your assessment of the differences between Heinlein and Haldeman, having read both. But TFW felt like a response to Heinlein as I was reading it. Perhaps that is my problem with groking this — my personal experience with the two books.

    Let me try it like this: To me, the similarities in theme and subject between TFW and ST are more important than their differences in details. In my mind, there is not a difference of degree between TFW as it is written and a TFW written with Heinlein’s world and character by Hadleman, because the theme/spirit/point/center of TFW would remain and do no harm to the theme/spirit/point/center of ST.

    I think (and I am sorry if I am misreading you) that you disagree, that you think the details are as important to the core of the work as the ideas/theme/whatever. Thus there is a difference of kind between TFW as it is and a TFW using Heinlein’s world.

    I can see that argument. To steal Hal Duncan’s metaphor, it would be distressing to stumble upon Hadleman’s sand castle with a Nazi flag perched atop it. But my understanding of human history is that our culture has evolved out of people doing just that. And considering the harsh way in which trademarks and copyright laws have been used to stifle some forms of artistic expression and to lock larger and larger portions of our culture away form the public, I am leery of having too many differences of kind.

    I am, as you can tell, conflicted about this, but I generally settle on some version of the forced licensing that allows song covers to exist. Most days, I think the damage done to the creator’s intent is worth the price for the benefit to society.

  191. Elena:

    “I have no doubt that legally she can come off smelling like a rose, but the part of the fanfiction community Mr. Scalzi is referring to feels that building a reputation by plagarizing in fanfic and then piloting that reputation into an offline career is morally reprehensible, even if legally allowable.”

    It’s been noted elsewhere in this thread by people who would be in a position to know that the original fiction sale was made on its own merits, so it would seem this outrage may be misplaced entirely.

    It’s certainly the case that a writer’s notoriety in one field is not necessarily of consequence in another. My non-fiction book career, for example, was of no help to me in selling a novel. Likewise, my reputation as a novelist is neither here nor there for my corporate work. Fanfic is more similar (I presume) to original fiction than my non-fiction work is to my fiction work, to be sure, but it’s also amateur work, which means in many repects it’s less like my fiction to non-fiction work.

    The point here is that I don’t find it unreasonable to entertain the notion that an author may get work sold simply on the merits of the work, not by any reputation the author may themselves have garnered.

  192. Elena:

    “I have no doubt that legally she can come off smelling like a rose, but the part of the fanfiction community Mr. Scalzi is referring to feels that building a reputation by plagarizing in fanfic and then piloting that reputation into an offline career is morally reprehensible, even if legally allowable.”

    It’s been noted elsewhere in this thread by people who would be in a position to know that the original fiction sale was made on its own merits, so it would seem this outrage may be misplaced entirely.

    It’s certainly the case that a writer’s notoriety in one field is not necessarily of consequence in another. My non-fiction book career, for example, was of no help to me in selling a novel. Likewise, my reputation as a novelist is neither here nor there for my corporate work. Fanfic is more similar (I presume) to original fiction than my non-fiction work is to my fiction work, to be sure, but it’s also amateur work, which means in many repects it’s less like my fiction to non-fiction work.

    The point here is that I don’t find it unreasonable to entertain the notion that an author may get work sold simply on the merits of the work, not by any reputation the author may themselves have garnered.

  193. David,

    I think you misunderstood me.

    In this case whether a person is nice or not doesn’t really matter. The reaction people are having to the author has to do with her writing not personality.

  194. David,

    I think you misunderstood me.

    In this case whether a person is nice or not doesn’t really matter. The reaction people are having to the author has to do with her writing not personality.

  195. John Scalzi wrote:
    It’s been noted elsewhere in this thread by people who would be in a position to know that the original fiction sale was made on its own merits, so it would seem this outrage may be misplaced entirely.

    I think some of the outrage is definitely misplaced but I can see where it comes from. The first odd feature of this is that the author is publishing under her fanfic writing pseudonym. That’s not really normal in these cases. It causes the fandom to follow in, both fangirls and detractors. You probably wouldn’t get that in most cases of a fanfic author turning to real published work. And it does seem to me that the author is hoping fandom popularity will give them a big boost.

    However, I doubt that decision to publish under a fanfic writing pseudonym was the publisher’s, or that the sale itself was made on fandom popularity.

    Where things might seem unfair, though, to people who watched the whole Plagiarism Debacle inside the fandom is that the author won a lot of connections, boosters, and so on from her fanfic. Some of these people definitely helped with recommendations, advice and so on. And that’s not a crime. That’s how the world works. You make friends and friends help you.

    But that’s where the annoyance is coming from, even though I don’t see it as justified. (Or rather, I don’t see anyone trying to bully the publisher as justified. Obviously people can be annoyed all they like.)

    I used to be a fan of the author’s writing, and welcomed the news they’d got an original sale, but the fandom thing about plagiarism has shaken me whether they actually do have that talent I saw.

    I’m hoping that the author’s original fiction bears out my initial opinion, though.

  196. John Scalzi wrote:
    It’s been noted elsewhere in this thread by people who would be in a position to know that the original fiction sale was made on its own merits, so it would seem this outrage may be misplaced entirely.

    I think some of the outrage is definitely misplaced but I can see where it comes from. The first odd feature of this is that the author is publishing under her fanfic writing pseudonym. That’s not really normal in these cases. It causes the fandom to follow in, both fangirls and detractors. You probably wouldn’t get that in most cases of a fanfic author turning to real published work. And it does seem to me that the author is hoping fandom popularity will give them a big boost.

    However, I doubt that decision to publish under a fanfic writing pseudonym was the publisher’s, or that the sale itself was made on fandom popularity.

    Where things might seem unfair, though, to people who watched the whole Plagiarism Debacle inside the fandom is that the author won a lot of connections, boosters, and so on from her fanfic. Some of these people definitely helped with recommendations, advice and so on. And that’s not a crime. That’s how the world works. You make friends and friends help you.

    But that’s where the annoyance is coming from, even though I don’t see it as justified. (Or rather, I don’t see anyone trying to bully the publisher as justified. Obviously people can be annoyed all they like.)

    I used to be a fan of the author’s writing, and welcomed the news they’d got an original sale, but the fandom thing about plagiarism has shaken me whether they actually do have that talent I saw.

    I’m hoping that the author’s original fiction bears out my initial opinion, though.

  197. The reaction people are having to the author has to do with her writing not personality.

    Elena, sorry if I misunderstood you — I may have been conflating your position with the remarks of some other commenters with regard to other actions taken by the author within the fanfic community. Your post about the “ready-made fan base built upon lies” makes things much more clear, I think.

    I would agree that it’s better for the people in that fan base to know that they’ve been deceived, than not. If their high opinion of the author’s work rests on passages that were in fact written by Joss Wheedon or Somerset Maugham or Eliza Parsons, her original work is likely to disappoint, and it’d be a shame if they bought it unwittingly. (And, of course, many people, myself included, have an aversion to giving money to people who’ve lied to them.)

    So do they know, by now? I would hope so, since I’d think the plagiarism news would travel much faster in HP fan circles.

    And if they do know, I’m still not sure what the argument is that the rest of us should be more than academically interested.

    John’s point, that novels tend to sell on their merits, is an important one. It would be nice if more people would internalize it.

  198. And if they do know, I’m still not sure what the argument is that the rest of us should be more than academically interested.

    Yeah, I’m not sold on bringing this whole thing out to the rest of the world, either. The novels should be judged on their own, as they are released–but it will be hard for that to happen if they’re being published under the same name as the fan writing was. And that’s the writer’s choice, as it is the choice of a good half-dozen other professional writers I know of who also write fanfiction, to keep their two identities (mostly) separated, and the fanfiction under wraps.

    However if I were a publisher and I contracted with someone who had a demonstrated history of plagiarism, I think I would want to know that, and plan to handle that writer with a little more caution than I would otherwise. Possibly the publisher would rather not know about the writer’s history. I wouldn’t know, not being in the industry. (I’m published, but not for my fiction.)

    I don’t know that anyone outside of fandom really needs to hear about it (anymore), given the way it has spiralled into this huge kerfuffle, and making fans and fandom look even crazier than usual. Joy.

  199. And if they do know, I’m still not sure what the argument is that the rest of us should be more than academically interested.

    Yeah, I’m not sold on bringing this whole thing out to the rest of the world, either. The novels should be judged on their own, as they are released–but it will be hard for that to happen if they’re being published under the same name as the fan writing was. And that’s the writer’s choice, as it is the choice of a good half-dozen other professional writers I know of who also write fanfiction, to keep their two identities (mostly) separated, and the fanfiction under wraps.

    However if I were a publisher and I contracted with someone who had a demonstrated history of plagiarism, I think I would want to know that, and plan to handle that writer with a little more caution than I would otherwise. Possibly the publisher would rather not know about the writer’s history. I wouldn’t know, not being in the industry. (I’m published, but not for my fiction.)

    I don’t know that anyone outside of fandom really needs to hear about it (anymore), given the way it has spiralled into this huge kerfuffle, and making fans and fandom look even crazier than usual. Joy.

  200. Sean: “I expect others will point to Patrick’s post as pure evidence that what they are doing is valuable.”

    In addition to the “not all bread is moldy” post of PNH’s above, I’d like to point out that in this case, value is determined by the fanficcer. It’s apparent that you did not find a lot of value in the activity yourself (I admit I flirted with it only briefly before moving on to original fiction), but if someone’s goal is entertainment, relaxation, or partipation in a community*, they might very well get value from fanfic.
    If a marathoner looks down on the jogger, it really doesn’t hurt the jogger at all. The funny thing is, you, the marathoner may be looked down on by the Olympic athlete. I have heard arguments that claim all writing that is not ultimately published is wasted effort. (I hope you agree that this is poppycock.)

    * – not a comprehensive list of reasons to write fanfic

  201. Oh, meant to say, have a great vacation, Sean.

    and

    I just love how everyone gets to use the word “conflating” now. [/word geekism]

  202. Anne C., Sean Fodera – I know I said this before, but I find it ironic that this whole is-fanfic-useful-or-just-wanking is taking place on a blog. Which most professional writers and publishers consider to be wanking.

    Dean: _the courts agree with me. Perdue has lost, and is now attempting to have the Supreme Court hear him. If they do hear him – and it is, I think, doubtful that they will: copyright law is clear in the US and there is ample precedent – it seems highly doubtful that they will have any reason to overturn the lower court decision._

    Based on the little knowlege I have of the subject, I agree with you that Perdue will have a tough time of it. He’ll have a tough time even getting a hearing. But that has nothing to do with whether his case actually has merit.

    The _Vanity Fair_ article describes Perdue’s case as being very strong–but those are the _facts_ of the case. The Supreme Court does not rule on fact, they rule on law–not just law, but specifically Constitutional law. If the lower courts ruled that the facts went against Perdue, then–even if the lower court is wrong–Perdue is screwed. He’s got no appeal left.

    Unless he can prove that the lower court made an error of Constitutional law, which I have not seen alleged.

    _Note that I didn’t say that copyright violation requires plagiarism. But if there isn’t outright blatant copying of large passages, then the similarities between the two stories have to be very strong indeed._

    Which is what Perdue alleges, and the _Vanity Fair_ article makes a strong case that he’s right.

    _I read the VF article, and while I thought it was sympathetic to Perdue (as I myself am, he seems like a nice guy) I didn’t get the same sense from the story. I left it feeling that Mnookin had the same feeling about Perdue that I do: nice guy, but he’s tilting at a windmill._

    I agree that the _Vanity Fair_ article presents Perdue as a nice guy who’s tilting at a windmill, but maybe not for the reason you do.

    The _Vanity Fair_ article makes a strong case that Perdue has the facts on his side, but he’s outgunned by big corporate lawyers and doesn’t have a chance of winning on that basis.

    kevin: **Mitch:** _I agree completely with your assessment of the differences between Heinlein and Haldeman, having read both. But TFW felt like a response to Heinlein as I was reading it. Perhaps that is my problem with groking this — my personal experience with the two books._

    Sorry if I was unclear: I agree with you 100%; _The Forever War_ is most definitely a response to _Starship Troopers._

    It just does not–to use your earlier language “borrow heavily from the ideas, tropes, and even the imagined technology of Heinlein’s work.” Because borrwing requires authorial intent. We have no evidence that the author intended to borrow, and we have some evidence that it was entirely unintentional.

    Joe makes a strong argument: The similarities between TFW and ST are inevitable when an author sets out to write a science-fiction novel about an innocent civilian who goes off to a future war.

    And, indeed, Scalzi, who has not read TFW, nonetheless turned out a novel that’s a response to TFW.

    If someone else comes along tomorrow and writes a science fiction war novel without reading _any_ of the three books in question _(The Forever War, Starship Troopers,_ or _Old Man’s War),_ it’ll nonetheless come out looking like a response to those three books. If it’s any good, at least.

    Just like if I write a story about a starship whose crew goes out exploring, it’ll look like a response to, or ripoff of, _Trek._ Even if there are no other intentional similarities. Once you set out to create a story about a starship whose crew goes out exploring, you’re more-or-less locked into a whole bunch of other creative decisions that makes the result like like _Trek_ or some kind of anti-_Trek._

    You said, earlier: _I am not sure that dealing with similar themes in different worlds is a difference of kind in dealing with themes in the same world as a given author._

    Are we talking about morality here, or the law?

    If you’re arguing based on morality, then we have something to discuss.

    But if you’re arguing based on law, you are just plain wrong.

    I am legally free tomorrow to sit down and write, and commercially sell, a novel about a young English lad, living in an ordinary, present-day English suburb, who discovers that he’s actually a wizard, and goes off to boarding school to sharpen his powers. That’s perfectly legal.

    And that kind of thing happens every day–on TV. _CSI_ becomes a smash hit, and allofasudden there are about a million police procedurals on TV that have big, gross autopsy scenes as their centerpiece. (Barbarians that we are, we almost always have the TV on when watching TV, and we have learned to categorize our favorite TV shows as “dinner-safe,” and “not dinner-safe.”)

    However, I’m _not_ legally allowed to write a _Harry Potter_ story, and try to sell it, without J.K. Rowling’s permission. And if my hypethetical boy-wizard story has too many similarities to the Harry Potter novels, Rowling’s lawyers are going to come after me, even if I’ve changed the names and some of the details to cover my tracks.

  203. Argh, I wrote the preceding message offline, with some embedded formatting marks, and I forgot to convert the formatting marks into actual formatting.

    Argh.

    Sometimes I hate Web-based discussion forums. Not just yours, Scalzi–all of ‘em, including my own.

  204. Argh, I wrote the preceding message offline, with some embedded formatting marks, and I forgot to convert the formatting marks into actual formatting.

    Argh.

    Sometimes I hate Web-based discussion forums. Not just yours, Scalzi–all of ‘em, including my own.

  205. In this case whether a person is nice or not doesn’t really matter. The reaction people are having to the author has to do with her writing not personality.

    From what I have read it does seem to bleed over into the personal. There is a general feeling that the writer “got away” with lifting text in fanfic with no repercussions, even though there have obviously been repercussions within the community in which this happened. The writer has been accused and found guilty of being a plagiarist in that community, and I believe the situation was even brought to the attention of the author of the original work.

    However, the writer is still seen as having gotten away scott free because people still like the fanfic and now the writer has gotten a book deal out of it (as opposed to just having sold a book to a publisher). So it does sound to me like there’s a problem with the idea that a person who proved themselves personally reprehensible by taking credit for someone else’s words in an amateur fanfic should get a book contract. If it’s just a question of worrying about the writer plagiarizing in professional work why not just wait until the thing is published and see if it’s been done? The second thing is creating an imaginary link between the fanfic world and the professional world that is recognized by many in the fanfic community but not the professional one. This imaginary link demands that the book contract be seen as a reward for writing the fanfic in question and demands the professional community join in the fanfic community’s shunning of this person because it’s all the same thing. If the past plagiarism in fanfic has been dealt with (and is still being dealt with) in the fanfic community, what is the problem with the professional book contract? The only thing I see in common with the two is that the person who wrote the first got the second.

  206. In this case whether a person is nice or not doesn’t really matter. The reaction people are having to the author has to do with her writing not personality.

    From what I have read it does seem to bleed over into the personal. There is a general feeling that the writer “got away” with lifting text in fanfic with no repercussions, even though there have obviously been repercussions within the community in which this happened. The writer has been accused and found guilty of being a plagiarist in that community, and I believe the situation was even brought to the attention of the author of the original work.

    However, the writer is still seen as having gotten away scott free because people still like the fanfic and now the writer has gotten a book deal out of it (as opposed to just having sold a book to a publisher). So it does sound to me like there’s a problem with the idea that a person who proved themselves personally reprehensible by taking credit for someone else’s words in an amateur fanfic should get a book contract. If it’s just a question of worrying about the writer plagiarizing in professional work why not just wait until the thing is published and see if it’s been done? The second thing is creating an imaginary link between the fanfic world and the professional world that is recognized by many in the fanfic community but not the professional one. This imaginary link demands that the book contract be seen as a reward for writing the fanfic in question and demands the professional community join in the fanfic community’s shunning of this person because it’s all the same thing. If the past plagiarism in fanfic has been dealt with (and is still being dealt with) in the fanfic community, what is the problem with the professional book contract? The only thing I see in common with the two is that the person who wrote the first got the second.

  207. Dene: “The writer is still seen as having gotten away scott free” because many of their friends denied the original allegations, perpetuated the (weak) excuses offered, created a brand-new archive just to provide a consequence-free forum for this author, and then aggressively threatened to sue anyone who mentioned plagiarism and this author’s name in the same paragraph for libel. The author involved has never apologized for any of it, and barely acknowledged that those offended might have a valid point.

    I don’t personally agree with those that have tried to bring this into a more public venue – what happens in fandom should stay in fandom – but it might be a reaction by many to being ignored, accused of lying, and attacked for five years for stating plain, verifiable facts. Then again, they could just be bitter; I know better than to attribute motive to anonymouse crazy people. Most fanfic authors who have moved on to or simultaneously published pro work have been praised and admired within the community, though (or so it seems to me).

    That said, I love this discussion. It has forced me to break my 8+ year habit of being an internet lurker.

  208. Dene: “The writer is still seen as having gotten away scott free” because many of their friends denied the original allegations, perpetuated the (weak) excuses offered, created a brand-new archive just to provide a consequence-free forum for this author, and then aggressively threatened to sue anyone who mentioned plagiarism and this author’s name in the same paragraph for libel. The author involved has never apologized for any of it, and barely acknowledged that those offended might have a valid point.

    I don’t personally agree with those that have tried to bring this into a more public venue – what happens in fandom should stay in fandom – but it might be a reaction by many to being ignored, accused of lying, and attacked for five years for stating plain, verifiable facts. Then again, they could just be bitter; I know better than to attribute motive to anonymouse crazy people. Most fanfic authors who have moved on to or simultaneously published pro work have been praised and admired within the community, though (or so it seems to me).

    That said, I love this discussion. It has forced me to break my 8+ year habit of being an internet lurker.

  209. Dene: “The writer is still seen as having gotten away scott free” because many of their friends denied the original allegations, perpetuated the (weak) excuses offered, created a brand-new archive just to provide a consequence-free forum for this author, and then aggressively threatened to sue anyone who mentioned plagiarism and this author’s name in the same paragraph for libel. The author involved has never apologized for any of it, and barely acknowledged that those offended might have a valid point.”

    I don’t know if I’d blame the author for the actions of their friends.

    I wondered about the “never apologized” and the “threatened to sue” thing…

    I’ve heard the fanfic author had a lawyer friend, I’ve heard that many lawyers will tell a client to never admit to any wrong doing. Maybe the person sending the threats to sue was also the lawyer friend over reacting… or maybe not.

    I’m not surprised the friends gave support or repeated the author’s story… that’s sort of what friends do, perhaps they didn’t know any better or didn’t care.

    Honestly who knows for sure. I’m just a net outsider looking in.

    It still boggles my mind that the fanfic story with the plagiarism was close to 900,000 words long and the plagiarism is like, what? 500 words 2,000 words and still it causes the net the flow with posts every single time it’s brought up. I highly doubt that the author learned nothing from the experience of this small brush with plagiarism as some people seem to think. And if they haven’t learned, well I’m sure like others have said, they’ll be caught if they do it in their published work.

    I think the author doomed themselves the instant they mentioned writing original books. Cause I can only imagine the posts we’d be talking about now if they had tried to go under a different name than the fan name. People would have attacked the author for trying to escape their past just as they are attacking them now for profiting off of it.

    It seems like a no win to me.

    -Diana

  210. Dene: “The writer is still seen as having gotten away scott free” because many of their friends denied the original allegations, perpetuated the (weak) excuses offered, created a brand-new archive just to provide a consequence-free forum for this author, and then aggressively threatened to sue anyone who mentioned plagiarism and this author’s name in the same paragraph for libel. The author involved has never apologized for any of it, and barely acknowledged that those offended might have a valid point.”

    I don’t know if I’d blame the author for the actions of their friends.

    I wondered about the “never apologized” and the “threatened to sue” thing…

    I’ve heard the fanfic author had a lawyer friend, I’ve heard that many lawyers will tell a client to never admit to any wrong doing. Maybe the person sending the threats to sue was also the lawyer friend over reacting… or maybe not.

    I’m not surprised the friends gave support or repeated the author’s story… that’s sort of what friends do, perhaps they didn’t know any better or didn’t care.

    Honestly who knows for sure. I’m just a net outsider looking in.

    It still boggles my mind that the fanfic story with the plagiarism was close to 900,000 words long and the plagiarism is like, what? 500 words 2,000 words and still it causes the net the flow with posts every single time it’s brought up. I highly doubt that the author learned nothing from the experience of this small brush with plagiarism as some people seem to think. And if they haven’t learned, well I’m sure like others have said, they’ll be caught if they do it in their published work.

    I think the author doomed themselves the instant they mentioned writing original books. Cause I can only imagine the posts we’d be talking about now if they had tried to go under a different name than the fan name. People would have attacked the author for trying to escape their past just as they are attacking them now for profiting off of it.

    It seems like a no win to me.

    -Diana

  211. Mitch Wagner writes: “I find it ironic that this whole is-fanfic-useful-or-just-wanking is taking place on a blog. Which most professional writers and publishers consider to be wanking.”

    I don’t actually think “most” professional writers and publishers consider blogging to be any such thing. Sure, blogging can be a waste of time; many things can be a waste of time. Blogging has also done some authors and book projects a lot of demonstrable good, helping them reach and sell to readers they weren’t reaching before. Blogs have also been places where publishers have noticed talented writers they hadn’t noticed before.

    As a B-list blogger with a day job inside a large publishing conglomerate, I’ve actually had occasions where I was the guy in the room trying to damp down enthusiasm and expectations for this “blogging” stuff. I’m not a This Changes Everything blog-triumphalist. But your picture of how “most” writers and publishers see blogging seems a bit out of date.

  212. And by the way. The assertion, constantly repeated in this thread, that Unnamed Big Publisher bought an original project from Fanfic Writer Who Must Not Be Named for reasons based entirely on its quality, without regard for, knowledge of, or interest in Fanfic Writer’s popularity and renown in her area of fandom, seems to me surpassingly unlikely.

    Publishers aren’t administering the Book Worthiness Olympics. Publishers are looking for stuff they can sell. A not-yet-professionally-published writer who turns up with a publishable book and a built-in ready-made audience based on renown in some other area of life always has an advantage going in. Agents know this; publishers know this. Indeed, and the more delicate of you may want to leave the room now, publishers’ definitions of “publishable” sometimes take on a certain flexibility when the ready-made audience seems substantial enough–or easy enough to target.

    I’m not speaking from any inside knowledge of cases here. I’m just saying that the idea that Fanfic Writer’s pro project was bought from inside some bell jar of Fair Witness-style objectivity does not, shall we say, jibe with my understanding of how things happen in the real world. Fanfic Writer is, after all, someone who made her initial reputation with a series of hilarious parodies of a certain hit series of fantasy movies, parodies which ran like wildfire through the e-mail systems of fantasy publishers everywhere. Of course the agent would have pointed out to editors that this was the person who wrote those. The agent would have been out of their freaking mind not to.

  213. And by the way. The assertion, constantly repeated in this thread, that Unnamed Big Publisher bought an original project from Fanfic Writer Who Must Not Be Named for reasons based entirely on its quality, without regard for, knowledge of, or interest in Fanfic Writer’s popularity and renown in her area of fandom, seems to me surpassingly unlikely.

    Publishers aren’t administering the Book Worthiness Olympics. Publishers are looking for stuff they can sell. A not-yet-professionally-published writer who turns up with a publishable book and a built-in ready-made audience based on renown in some other area of life always has an advantage going in. Agents know this; publishers know this. Indeed, and the more delicate of you may want to leave the room now, publishers’ definitions of “publishable” sometimes take on a certain flexibility when the ready-made audience seems substantial enough–or easy enough to target.

    I’m not speaking from any inside knowledge of cases here. I’m just saying that the idea that Fanfic Writer’s pro project was bought from inside some bell jar of Fair Witness-style objectivity does not, shall we say, jibe with my understanding of how things happen in the real world. Fanfic Writer is, after all, someone who made her initial reputation with a series of hilarious parodies of a certain hit series of fantasy movies, parodies which ran like wildfire through the e-mail systems of fantasy publishers everywhere. Of course the agent would have pointed out to editors that this was the person who wrote those. The agent would have been out of their freaking mind not to.

  214. Guess I’m out of my freaking mind then, Patrick. I never even considered for a second trying to explain fanfic or the community that went along with it to the editors to whom I submitted this book.

    Perhaps one thing to consider is this was a YA submission, to YA editors mostly (including, in all fair disclosure, one at Tor). While the adult f&sf publishing community may be quite aware of fanfic, it just isn’t the case on the YA side. I’m not saying none of them, but of the editors who actually participated in the auction for this trilogy, not a one had ever heard of this author’s work. Nor had any of the editors at any of the publishers around the world who have bought translation rights. Why is that so hard to believe?

    What I did have, in addition to a strong manuscript, was blurbs from two bestselling authors who had read the book and loved it. I didn’t need anything else.

  215. Guess I’m out of my freaking mind then, Patrick. I never even considered for a second trying to explain fanfic or the community that went along with it to the editors to whom I submitted this book.

    Perhaps one thing to consider is this was a YA submission, to YA editors mostly (including, in all fair disclosure, one at Tor). While the adult f&sf publishing community may be quite aware of fanfic, it just isn’t the case on the YA side. I’m not saying none of them, but of the editors who actually participated in the auction for this trilogy, not a one had ever heard of this author’s work. Nor had any of the editors at any of the publishers around the world who have bought translation rights. Why is that so hard to believe?

    What I did have, in addition to a strong manuscript, was blurbs from two bestselling authors who had read the book and loved it. I didn’t need anything else.

  216. Patrick – I withdraw the word “most” and substitute the phrase “a great many.” I’m not really trying to argue that this is the majority view of writers and publishers, but rather, simply, that it’s commonly held.

    As you know, B/o/b/, Patrick, I, too, am a blogger with a day job inside a large publishing conglomerate, although it is a completely different kind of job and a different kind of publishing conglomerate than the one you’re in.

    I encounter many people whose attitude toward blogging is that it is a swell thing to do if you have the backing of a professional publishing house behind you, or if you’re an individual blogger who’s made the A-list through hard work, smarts, and luck.

    But the millions and millions of people who run small blogs just for fun are often viewed with disdain, because of their tiny little readership and the fact that they’ll never make any money off it. Publishing professionals often do not understand the value of, as you say, “creative play.” It’s a business to them, and if you’re not making money, you’re wasting your time.

    To be fair, though, the last time I had this conversation with a friend and co-worker, he eventually got it. “How many readers does your blog have?” he said at first, dismissively. “A couple of hundred, at most?” I admitted it was a lot smaller than that; I estimated my blog had about 100 readers, about a dozen of whom I’d consider the core audience. He questioned why I was wasting my time at that nonsense; I said that the core audience consisted mostly of friends and family, most of whom lived in different time zones and I hardly ever got to see them. I often get a couple of comments on many of my posts, which is pleasant. Explained in those terms, my friend and colleague got it instantly.

    I’ve started to hear (or read) the phrase “friends and family blog” recently, which seems to me to be a nice way of summing up that element of the blogging phenomenon. It’s certainly better than the disdainful “bunch of teen-age girls talking about boys” that you sometimes here, with the unpleasant implication that the conversation of females between the ages of 13 and 19 is somehow worthless. It’s important to them, and that’s enough.

  217. Okay, suit yourself, Barry, you’re out of your freaking mind. :-)

    I don’t find it hard to believe that YA editors hadn’t heard of this person, but I find it amazing that an agent would neglect to mention when a writer already has an ongoing audience. But what do I know, I’m just a guy who buys books from agents.

  218. PNH said: Fanfic Writer is, after all, someone who made her initial reputation with a series of hilarious parodies of a certain hit series of fantasy movies, parodies which ran like wildfire through the e-mail systems of fantasy publishers everywhere.

    I was forwarded that particular piece by about a dozen different people. None of the forwarded emails included the name of the author. I didn’t find out who they were until much later.

    Certainly, it’s famous but like Terry Bisson’s “They’re made out of meat” the vast majority of folks sending it around had no idea who wrote it and just thought of it as another anonymous internet joke.

    I was at a party last night where most of the folks attending were YA publishing people. I did a little test to see if any of them had heard of the author in question. No one had. (Sorry, Barry, the buzz about her books doesn’t seem to have hit the US yet.) I then asked them a hypothetical:

    If you were publishing a book and it was revealed to you that the author had been well-known as a fanwriter who had plagiarised some of their fan writings how would you respond?

    The responses were either: “What’s fanfic?” or, “Well, it’s fanfic isn’t that all plagiarism?”

    Adult fantasy & sf publishing is pretty unique in that it’s full of people like Patrick who come out of fandom. In YA publishing I’ve not met anyone who comes from fandom and, as I remarked further upstream, very few who know anything about it.

    It’s odd for some of us in the adult sf world to realise that not all publishing has this permeable fan/pro thing going on.

  219. PNH said: Fanfic Writer is, after all, someone who made her initial reputation with a series of hilarious parodies of a certain hit series of fantasy movies, parodies which ran like wildfire through the e-mail systems of fantasy publishers everywhere.

    I was forwarded that particular piece by about a dozen different people. None of the forwarded emails included the name of the author. I didn’t find out who they were until much later.

    Certainly, it’s famous but like Terry Bisson’s “They’re made out of meat” the vast majority of folks sending it around had no idea who wrote it and just thought of it as another anonymous internet joke.

    I was at a party last night where most of the folks attending were YA publishing people. I did a little test to see if any of them had heard of the author in question. No one had. (Sorry, Barry, the buzz about her books doesn’t seem to have hit the US yet.) I then asked them a hypothetical:

    If you were publishing a book and it was revealed to you that the author had been well-known as a fanwriter who had plagiarised some of their fan writings how would you respond?

    The responses were either: “What’s fanfic?” or, “Well, it’s fanfic isn’t that all plagiarism?”

    Adult fantasy & sf publishing is pretty unique in that it’s full of people like Patrick who come out of fandom. In YA publishing I’ve not met anyone who comes from fandom and, as I remarked further upstream, very few who know anything about it.

    It’s odd for some of us in the adult sf world to realise that not all publishing has this permeable fan/pro thing going on.

  220. I should perhaps note that the “fandom” I come out of has nothing whatsoever to do with writing amateur fiction set in other people’s universes; I’m as much an outsider to that as most people in this thread.

  221. I should perhaps note that the “fandom” I come out of has nothing whatsoever to do with writing amateur fiction set in other people’s universes; I’m as much an outsider to that as most people in this thread.

  222. Abby: “The writer is still seen as having gotten away scott free” because many of their friends denied the original allegations, perpetuated the (weak) excuses offered, created a brand-new archive just to provide a consequence-free forum for this author, and then aggressively threatened to sue anyone who mentioned plagiarism and this author’s name in the same paragraph for libel. The author involved has never apologized for any of it, and barely acknowledged that those offended might have a valid point.

    I admit this further explanation to me just makes it seem even more like a personal conflict within a community with a long history. Details like the writer’s friends threatening people and creating shiny new archives just for the writer are I think part of what John Scalzi described when he said it was like “dropping in on a heated argument…so all you knew was there was a lot of yelling and shouting.” It’s just impossible to understand, if you haven’t followed the years of subtext, just the kind of fury this writer is supposed to inspire. It may seem to the people close to this saga that there’s a universal moral outrage there, but there just isn’t. It’s like if the writer was in a bridge club and made everyone furious by sleeping with another member’s husband or cheating in the game. People in the community may still be angry, new community members may be furious when they hear about it, outsiders can still agree that sleeping with someone’s husband is wrong, but it’s not something that concerns the professional world–and it was as a representative of that that John Scalzi was notified of it.

    Unfortunately it really seems like the fanfic side and the professional side are seeing things through totally different lenses and just can’t come together. The main response to this post in fandom seems to be to focus on how fanfic is not like plagiarizing, since the whole world of fanfic is built around exactly that issue: that the use of someone else’s world or characters is justified, and fanwriters judge each other on what they bring to thso things themselves. A writer of original fiction or tie-in books is more likely to just see all the differences with that.

  223. Abby: “The writer is still seen as having gotten away scott free” because many of their friends denied the original allegations, perpetuated the (weak) excuses offered, created a brand-new archive just to provide a consequence-free forum for this author, and then aggressively threatened to sue anyone who mentioned plagiarism and this author’s name in the same paragraph for libel. The author involved has never apologized for any of it, and barely acknowledged that those offended might have a valid point.

    I admit this further explanation to me just makes it seem even more like a personal conflict within a community with a long history. Details like the writer’s friends threatening people and creating shiny new archives just for the writer are I think part of what John Scalzi described when he said it was like “dropping in on a heated argument…so all you knew was there was a lot of yelling and shouting.” It’s just impossible to understand, if you haven’t followed the years of subtext, just the kind of fury this writer is supposed to inspire. It may seem to the people close to this saga that there’s a universal moral outrage there, but there just isn’t. It’s like if the writer was in a bridge club and made everyone furious by sleeping with another member’s husband or cheating in the game. People in the community may still be angry, new community members may be furious when they hear about it, outsiders can still agree that sleeping with someone’s husband is wrong, but it’s not something that concerns the professional world–and it was as a representative of that that John Scalzi was notified of it.

    Unfortunately it really seems like the fanfic side and the professional side are seeing things through totally different lenses and just can’t come together. The main response to this post in fandom seems to be to focus on how fanfic is not like plagiarizing, since the whole world of fanfic is built around exactly that issue: that the use of someone else’s world or characters is justified, and fanwriters judge each other on what they bring to thso things themselves. A writer of original fiction or tie-in books is more likely to just see all the differences with that.

  224. Patrick: I think the reason for not using it has been pretty clearly demonstrated throughout this thread. It didn’t, in my mind, scream “big ready-made audience” as much as it did “really strange fringe group.” I always assumed the people who wanted to would find the books, and would thus help sales in the long run, but I wanted the publisher focused on “hot new YA fantasy author” which still carries an awful lot of weight (and, I might add, a much bigger potential audience).

    Justine: That’s ok, no reason for anyone in the US to have heard yet…but I know that you and I have big mouths, so we’ll get the word out. ;^)

    Dene: I think you’ve hit it exactly. Also, it’s the kind of thing where, quite simply, nobody is going to change anyone else’s mind, so it really is just wank for wank’s sake.

  225. Patrick: I think the reason for not using it has been pretty clearly demonstrated throughout this thread. It didn’t, in my mind, scream “big ready-made audience” as much as it did “really strange fringe group.” I always assumed the people who wanted to would find the books, and would thus help sales in the long run, but I wanted the publisher focused on “hot new YA fantasy author” which still carries an awful lot of weight (and, I might add, a much bigger potential audience).

    Justine: That’s ok, no reason for anyone in the US to have heard yet…but I know that you and I have big mouths, so we’ll get the word out. ;^)

    Dene: I think you’ve hit it exactly. Also, it’s the kind of thing where, quite simply, nobody is going to change anyone else’s mind, so it really is just wank for wank’s sake.

  226. Also, it’s the kind of thing where, quite simply, nobody is going to change anyone else’s mind

    This is not true. The discussion changed my mind, though I wish it hadn’t.

  227. Also, it’s the kind of thing where, quite simply, nobody is going to change anyone else’s mind

    This is not true. The discussion changed my mind, though I wish it hadn’t.

  228. What can I say? I work for a company that’s made a lot of money over the years by noticing that the money in the wallets of people dismissed by other companies as “really strange fringe groups” is just as green as anyone else’s.

  229. What can I say? I work for a company that’s made a lot of money over the years by noticing that the money in the wallets of people dismissed by other companies as “really strange fringe groups” is just as green as anyone else’s.

  230. 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.

    Well, one way plagiarism seems a greater moral issue than simple fanfic missappropriation is that in the case of plagiarism, the writer/fanficcer is lying to his readers. And the honesty of what a writer is saying to his readers is a fair scale on which to weigh such things, I’d suggest.

  231. 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.

    Well, one way plagiarism seems a greater moral issue than simple fanfic missappropriation is that in the case of plagiarism, the writer/fanficcer is lying to his readers. And the honesty of what a writer is saying to his readers is a fair scale on which to weigh such things, I’d suggest.

  232. It’s certainly better than the disdainful “bunch of teen-age girls talking about boys” that you sometimes here, with the unpleasant implication that the conversation of females between the ages of 13 and 19 is somehow worthless. It’s important to them,and that’s enough. [Emphasis mine.]

    Thank you, Mitch, for posting this. My thought here is a bit OT from the original post, but I think it’s somewhat germane. As a lover of fandom in all of its crazy permutations (personal threats, of course, excluded – sad that it needs to be said), fanfic appeals to the populist in me, in the same way that the ostensibly “inane chatterings” of 13-old-girls on MySpace do. Regardless of whether or not these types of posts are legitimate endeavors in the eyes of a culture wherein creativity is commodified (and non-commodified creativity is dismissed), they strike me as emblamatic of the subversive power of the Internet. Perhaps writing Harry/Draco slash and/or blogging about “the hot guy in math class” don’t shatter years of hegemony – but the fact that people who previously had no access to a means of mass communication can share those ideas with a broad audience? Well, that, eventually, might. And sometimes does.

    Yes, plagiarism is ethically wrong. Yes, copyright infringement is legally problematic (although I find the ethical debate far murkier here). But to live in a world where such things are the topic of debate – how free are we to create and publish works which are derivative to varying degrees, to swipe unsourced material in a non-professional context, to play in others’ sandboxes? These conversations can only occur in a society in which the tools of communication are truly public. And I am willing to sacrifice ownership of my words (and I say this as someone who has made a living from my published writing) if it means I retain this sort of world into which they may be released.

  233. It’s certainly better than the disdainful “bunch of teen-age girls talking about boys” that you sometimes here, with the unpleasant implication that the conversation of females between the ages of 13 and 19 is somehow worthless. It’s important to them,and that’s enough. [Emphasis mine.]

    Thank you, Mitch, for posting this. My thought here is a bit OT from the original post, but I think it’s somewhat germane. As a lover of fandom in all of its crazy permutations (personal threats, of course, excluded – sad that it needs to be said), fanfic appeals to the populist in me, in the same way that the ostensibly “inane chatterings” of 13-old-girls on MySpace do. Regardless of whether or not these types of posts are legitimate endeavors in the eyes of a culture wherein creativity is commodified (and non-commodified creativity is dismissed), they strike me as emblamatic of the subversive power of the Internet. Perhaps writing Harry/Draco slash and/or blogging about “the hot guy in math class” don’t shatter years of hegemony – but the fact that people who previously had no access to a means of mass communication can share those ideas with a broad audience? Well, that, eventually, might. And sometimes does.

    Yes, plagiarism is ethically wrong. Yes, copyright infringement is legally problematic (although I find the ethical debate far murkier here). But to live in a world where such things are the topic of debate – how free are we to create and publish works which are derivative to varying degrees, to swipe unsourced material in a non-professional context, to play in others’ sandboxes? These conversations can only occur in a society in which the tools of communication are truly public. And I am willing to sacrifice ownership of my words (and I say this as someone who has made a living from my published writing) if it means I retain this sort of world into which they may be released.

  234. And, really, if you’re already wantonly violating copyright, what’s a little plagiarism to go along with it? Honestly. In for a penny, in for a pound.

    Do I need to specify that this is, you know, my opinion, not the recieved wisdom of the ages? Yeah, probably. Ok, it is. This is the difference to me

    Using someone else’s characters, etc, openly and with attribution, is copyright violation, and copyright violation is a crime. A crime I am willing, under some circumstances, to commit.

    Plagiarism — willfully or negligently (which isn’t the same as just plain ‘accidentally’) passing someone else’s work off as your own — is an intellectual SIN.

    Against the person who did the work, against your own capacity, against people who trust you, and against the truth.

    (Which doesn’t put me on the side of this particular kerfuffle one might think; in this case, I gather there has been quite a lot in the way of confession and amends, and for all of me I think the way it’s come up again now is stupid and petty and I hope she has a fabulous career.)

    As for me, I mostly write Shakespeare fanfic these days, which is *does little dance* perfectly legal.

    Still fanfic, and I’m still giving it away.

    Because I LIKE giving it away. Giving it away to a community of like-minded people who are made happy by it is FUN. You know, a person should have some skill that lets them participate in society and culture by entertaining others, and I can’t sing, draw, or play an instrument, but I can write. So I do.

  235. And, really, if you’re already wantonly violating copyright, what’s a little plagiarism to go along with it? Honestly. In for a penny, in for a pound.

    Do I need to specify that this is, you know, my opinion, not the recieved wisdom of the ages? Yeah, probably. Ok, it is. This is the difference to me

    Using someone else’s characters, etc, openly and with attribution, is copyright violation, and copyright violation is a crime. A crime I am willing, under some circumstances, to commit.

    Plagiarism — willfully or negligently (which isn’t the same as just plain ‘accidentally’) passing someone else’s work off as your own — is an intellectual SIN.

    Against the person who did the work, against your own capacity, against people who trust you, and against the truth.

    (Which doesn’t put me on the side of this particular kerfuffle one might think; in this case, I gather there has been quite a lot in the way of confession and amends, and for all of me I think the way it’s come up again now is stupid and petty and I hope she has a fabulous career.)

    As for me, I mostly write Shakespeare fanfic these days, which is *does little dance* perfectly legal.

    Still fanfic, and I’m still giving it away.

    Because I LIKE giving it away. Giving it away to a community of like-minded people who are made happy by it is FUN. You know, a person should have some skill that lets them participate in society and culture by entertaining others, and I can’t sing, draw, or play an instrument, but I can write. So I do.

  236. John: I had vaguely heard of a past kerfuffle about this author wrt plagiarism, and dismissed it as incomprehensible and probably the work of overwrought people with grudges.

    The recent discussion demonstrated to my satisfaction that while there are overwrought people with grudges out there, there was also serious plagiarism in the form of two scenes lifted straight from then-out-of-print books (yes, as stated above, there are many more allegations, but those are the most serious to me).

    I’d never heard the whole story until now, seen the side-by-side comparisons, or seen the history of the author’s response.

    I like the author’s work and had been planning to buy and read her original work, and now I will not. I would be unable to read a work fairly when I was wondering at every turn whether the prose was original.

  237. John: I had vaguely heard of a past kerfuffle about this author wrt plagiarism, and dismissed it as incomprehensible and probably the work of overwrought people with grudges.

    The recent discussion demonstrated to my satisfaction that while there are overwrought people with grudges out there, there was also serious plagiarism in the form of two scenes lifted straight from then-out-of-print books (yes, as stated above, there are many more allegations, but those are the most serious to me).

    I’d never heard the whole story until now, seen the side-by-side comparisons, or seen the history of the author’s response.

    I like the author’s work and had been planning to buy and read her original work, and now I will not. I would be unable to read a work fairly when I was wondering at every turn whether the prose was original.

  238. Does it make a difference that the plagiarism in question was committed 5+ years ago and that there haven’t been any accusations leveled at the, um, substantial material written since then? (It doesn’t particularly make a difference to me, but I think my objections are slightly different from yours).

  239. Does it make a difference that the plagiarism in question was committed 5+ years ago and that there haven’t been any accusations leveled at the, um, substantial material written since then? (It doesn’t particularly make a difference to me, but I think my objections are slightly different from yours).

  240. Barry, I have to agree with Patrick.
    You labelled fans as “really strange fringe groups”, I think of it more as people with a great deal of spending power.

    We are also the ideal demographic, meaning that there are three stages to fandom: very young (teens), 18-34 (usually attending college and university), 35+ highly educated, employed, and quite willing to fork over cash to just reminisce over either childhood experience, or just anything that interest them.

    They are also quite dedicated and willing to spend money on dvds, movies, and involve themselves in writing campaigns to save their shows from being cancelled.

    To just labelled them as a “fringe group” would be like someone in marketing dismissing a teens spending power.

  241. Barry, I have to agree with Patrick.
    You labelled fans as “really strange fringe groups”, I think of it more as people with a great deal of spending power.

    We are also the ideal demographic, meaning that there are three stages to fandom: very young (teens), 18-34 (usually attending college and university), 35+ highly educated, employed, and quite willing to fork over cash to just reminisce over either childhood experience, or just anything that interest them.

    They are also quite dedicated and willing to spend money on dvds, movies, and involve themselves in writing campaigns to save their shows from being cancelled.

    To just labelled them as a “fringe group” would be like someone in marketing dismissing a teens spending power.

  242. To just labelled them as a “fringe group” would be like someone in marketing dismissing a teens spending power.

    I think that’s a bit of an exaggeration of what he said, though. He didn’t dismiss them as readers as far as I could tell, he was just explaining that when he sold the trilogy he didn’t push the fandom following as the big selling point or mention it to the editors to whom he was selling it.

  243. To just labelled them as a “fringe group” would be like someone in marketing dismissing a teens spending power.

    I think that’s a bit of an exaggeration of what he said, though. He didn’t dismiss them as readers as far as I could tell, he was just explaining that when he sold the trilogy he didn’t push the fandom following as the big selling point or mention it to the editors to whom he was selling it.

  244. And I am willing to sacrifice ownership of my words (and I say this as someone who has made a living from my published writing) if it means I retain this sort of world into which they may be released.

    False dilemma.

  245. And I am willing to sacrifice ownership of my words (and I say this as someone who has made a living from my published writing) if it means I retain this sort of world into which they may be released.

    False dilemma.

  246. I didn’t mean in any way that all fan groups are “fringe;” I recognize that they’re hardcore buyers in fact. But try explaining the fanfic community to most people, and you’re going to sound silly. It was not an effective marketing tool for me in pitching the trilogy.

  247. Ah.

    Okay.

    Um…Barry, I know many one time fanfic writers who are now writing professionally. With the exception of a few who started their fanfic writing under their own name many wrote under a pseudo-name as is the case here.

    Those that did write under a pseudo name started their professional careers under their own name.

    Wouldn’t it have been better for the author of the triology to have written the triology under her own name than the pseudo-name she is currently using? Meaning to have started her career under her own name?

    Even before this latest fandom burp, one had only to google her pseudo-name for these accusations to come out and be found by people not even associated in fandom.

    That is a huge risk to take, to alienate these potential fans of her original writings who may google her name to find out more about the author.

  248. Ah.

    Okay.

    Um…Barry, I know many one time fanfic writers who are now writing professionally. With the exception of a few who started their fanfic writing under their own name many wrote under a pseudo-name as is the case here.

    Those that did write under a pseudo name started their professional careers under their own name.

    Wouldn’t it have been better for the author of the triology to have written the triology under her own name than the pseudo-name she is currently using? Meaning to have started her career under her own name?

    Even before this latest fandom burp, one had only to google her pseudo-name for these accusations to come out and be found by people not even associated in fandom.

    That is a huge risk to take, to alienate these potential fans of her original writings who may google her name to find out more about the author.

  249. In this case, the pseudonym the author uses has evolved far beyong just an online pen name. It’s her identity, in every way except payroll and taxes. I’d never even heard her legal name until it came time to draft the contracts for her trilogy and it became necessary to deal with it.

    So, in effect, you’re asking why the author didn’t use her name on her books. And I’d respond, why shouldn’t she?

  250. In this case, the pseudonym the author uses has evolved far beyong just an online pen name. It’s her identity, in every way except payroll and taxes. I’d never even heard her legal name until it came time to draft the contracts for her trilogy and it became necessary to deal with it.

    So, in effect, you’re asking why the author didn’t use her name on her books. And I’d respond, why shouldn’t she?

  251. Um…I am just saying this one carries a lot of bad baggage, maybe it would have been better for her to start clean.

    She has every right to use whatever name she wants, it is just that, I don’t know, why risk so much specially at a time when people use google to search for things, and even when they misspell things google still gives them possible search links.

  252. I guess I just don’t see it as any big risk. There’s plenty of nastiness out there to be Googled about me as an agent, and it hasn’t hurt me or my clients in any way.

    We’ll just have to agree to disagree, and see what happens when the book comes out. Those who choose not to read it will be the ones missing out.

  253. False dilemma.

    I really don’t think it is, although I’d be interested in hearing why you do. The point I was making is that the Internet makes copyright infringement (and more specifically fanfic) far easier to engage in and distribute to a mass audience than at any previous point in known human history. This causes a great deal of discomfort for many (though certainly not all) published artists, musicians, writers, etc. Those who are published generally profit from their creativity to some extent – sometimes greatly, sometimes not. It is therefore arguably in their best economic interest to curb the capability of those who would borrow their ideas in various forms and distribute the subsequent permutations via the Internet.

    Our laws, as articulated upthread, are on the side of the published rather than the unpublished creators, and why shouldn’t they be? Money protects money. But why let that then confer greater value in the moral sense upon the work of the original artist rather than the one who comes after? (An unpopular opinion, I realize, and one that dismisses the notion of “artist as solitary creative genius” that many working artists hold dear.)

    I am posing a variant philosophical view that I hold as a published writer (and one shared with my husband, a working musician who has been unpopular with peers in his vocal support of Napster, Kazaa, LimeWire, and other similar web-apps). While I find plagiarism is its own ethically distasteful animal, I am in the process of rethinking my view of copyright infringement. I think I would initially be irked – because I have been conditioned to be – if someone were to borrow my words for purposes I hadn’t previously condoned and then redistributed them in a variant form over the Internet. However, I am coming to a point where I believe that allowing this
    hypothetical “someone” the freedom to do so is beneficial to the sort of intellectually free society I believe unrestricted Internet activity allows. I am offering a counter-point to the “fanfic writers are playing in my sandbox” argument. I assert that we are all in the same cultural hodgepodge of a sandbox, and that encouraging the free and rapid proliferation of ideas in that sandbox is more valuable than protecting the abillity of some of us to charge others money for touring our sandcastles.

  254. False dilemma.

    I really don’t think it is, although I’d be interested in hearing why you do. The point I was making is that the Internet makes copyright infringement (and more specifically fanfic) far easier to engage in and distribute to a mass audience than at any previous point in known human history. This causes a great deal of discomfort for many (though certainly not all) published artists, musicians, writers, etc. Those who are published generally profit from their creativity to some extent – sometimes greatly, sometimes not. It is therefore arguably in their best economic interest to curb the capability of those who would borrow their ideas in various forms and distribute the subsequent permutations via the Internet.

    Our laws, as articulated upthread, are on the side of the published rather than the unpublished creators, and why shouldn’t they be? Money protects money. But why let that then confer greater value in the moral sense upon the work of the original artist rather than the one who comes after? (An unpopular opinion, I realize, and one that dismisses the notion of “artist as solitary creative genius” that many working artists hold dear.)

    I am posing a variant philosophical view that I hold as a published writer (and one shared with my husband, a working musician who has been unpopular with peers in his vocal support of Napster, Kazaa, LimeWire, and other similar web-apps). While I find plagiarism is its own ethically distasteful animal, I am in the process of rethinking my view of copyright infringement. I think I would initially be irked – because I have been conditioned to be – if someone were to borrow my words for purposes I hadn’t previously condoned and then redistributed them in a variant form over the Internet. However, I am coming to a point where I believe that allowing this
    hypothetical “someone” the freedom to do so is beneficial to the sort of intellectually free society I believe unrestricted Internet activity allows. I am offering a counter-point to the “fanfic writers are playing in my sandbox” argument. I assert that we are all in the same cultural hodgepodge of a sandbox, and that encouraging the free and rapid proliferation of ideas in that sandbox is more valuable than protecting the abillity of some of us to charge others money for touring our sandcastles.

  255. Mitch

    No, I am not making a legal argument. I know the law is not on the side of fanfic in this matter. I was responding to John’s question about why fanfic would be morally superior to plagarism. I just don’t think the law is optimal in this area.

  256. Mitch

    No, I am not making a legal argument. I know the law is not on the side of fanfic in this matter. I was responding to John’s question about why fanfic would be morally superior to plagarism. I just don’t think the law is optimal in this area.

  257. Our laws, as articulated upthread, are on the side of the published rather than the unpublished creators

    Actually, they are on the side of the person who first fixes an idea in the form of a creation. If I have an unpublished story sitting in a desk drawer, and you post fanfic based on that story, it’s still copyright infringment. If John Scalzi posts a novel for anyone to download, free, and you write fanfic based on that novel, it’s still copyright infringement.

    You, personally, are free to open a sandbox. You can say “Hey, fanficers, help yourself to my work.” You can even let them sell their fanfic, if you wish. That’s what the whole concept of the Creative Commons license is about. (If you’re a market-theory type, you might even argue that people who cling greedily to their copyrights will lose out in the end over those who share.)

    But you propose that doing away with copyright protections is the necessary and inevitable costs of an open Internet. That is a false dilemma.

  258. Our laws, as articulated upthread, are on the side of the published rather than the unpublished creators

    Actually, they are on the side of the person who first fixes an idea in the form of a creation. If I have an unpublished story sitting in a desk drawer, and you post fanfic based on that story, it’s still copyright infringment. If John Scalzi posts a novel for anyone to download, free, and you write fanfic based on that novel, it’s still copyright infringement.

    You, personally, are free to open a sandbox. You can say “Hey, fanficers, help yourself to my work.” You can even let them sell their fanfic, if you wish. That’s what the whole concept of the Creative Commons license is about. (If you’re a market-theory type, you might even argue that people who cling greedily to their copyrights will lose out in the end over those who share.)

    But you propose that doing away with copyright protections is the necessary and inevitable costs of an open Internet. That is a false dilemma.

  259. After much thought, Erin, I’m going to have to respectfully disagree with you.
    I think the idea of the intellectually free society is a good one. (Which is what made your post so interesting to me.) I would contend that we (Westerners at least) have that, for the most part. As has been pointed out before, ideas are not copyrightable, merely the execution. What, then, is the disadvantage? Sure, I can’t write about Hogwarts, but I can invent another school of magic. My freedom has only been infringed upon in that I cannot infringe upon the rights of JKR. The disadvantage of a restrictionless society is that it discounts the effort of whomever choses to create unique products.
    I also feel strongly (from my own profession) that restrictions can fuel creativity. Necessity is called “the mother of invention” for no small reason. It forces you to think, to challenge yourself. It may be as slight as relocating Hogwarts to Alabama and saying they only accept orphans, or it may be as big as reinventing how to tell a story.
    I agree with mythago. If you want to create a collaborative environment with other creative, you are free to do so. In the inverse situation, where the creative environment is restrictionless, you would not have the power to create a private endeavor.
    I agree, it’s hard to separate ourselves out from our “conditioning.” I come at this from a collaboratively creative field (architecture) that educationally focuses on the individual, and I have to say it is possible, even likely, to shed this training when you find a method of collaboration and group with whom you like to collaborate.

  260. After much thought, Erin, I’m going to have to respectfully disagree with you.
    I think the idea of the intellectually free society is a good one. (Which is what made your post so interesting to me.) I would contend that we (Westerners at least) have that, for the most part. As has been pointed out before, ideas are not copyrightable, merely the execution. What, then, is the disadvantage? Sure, I can’t write about Hogwarts, but I can invent another school of magic. My freedom has only been infringed upon in that I cannot infringe upon the rights of JKR. The disadvantage of a restrictionless society is that it discounts the effort of whomever choses to create unique products.
    I also feel strongly (from my own profession) that restrictions can fuel creativity. Necessity is called “the mother of invention” for no small reason. It forces you to think, to challenge yourself. It may be as slight as relocating Hogwarts to Alabama and saying they only accept orphans, or it may be as big as reinventing how to tell a story.
    I agree with mythago. If you want to create a collaborative environment with other creative, you are free to do so. In the inverse situation, where the creative environment is restrictionless, you would not have the power to create a private endeavor.
    I agree, it’s hard to separate ourselves out from our “conditioning.” I come at this from a collaboratively creative field (architecture) that educationally focuses on the individual, and I have to say it is possible, even likely, to shed this training when you find a method of collaboration and group with whom you like to collaborate.

  261. Diana Sprinkle:

    I don’t know if I’d blame the author for the actions of their friends.

    I wondered about the “never apologized” and the “threatened to sue” thing…

    I’ve heard the fanfic author had a lawyer friend, I’ve heard that many lawyers will tell a client to never admit to any wrong doing. Maybe the person sending the threats to sue was also the lawyer friend over reacting… or maybe not.

    I’m not surprised the friends gave support or repeated the author’s story… that’s sort of what friends do, perhaps they didn’t know any better or didn’t care.

    Therein lies the problem. There had been rumors (and proof in the form of emails and personal run-ins) for many years in the fandom that the author in question, along with her galpal lawyer friend, cultivating a cult of personality around the author and directing their ‘followers’ to set upon anyone who dared to disagree or cast a negative light upon her, while she sat back and waved her hands going ‘but but but I can’t control what they do!’

    In some cases that might be true. But this particular author carried a heavy weight in the fandom and wielded it quite expertly, all the while keeping her hands clean.

    Her lawyer friend, to my knowledge, wasn’t her representative lawyer, just someone who managed the legal aspects of their created archive.

    If they were such good friends, at any time the author friend could have called off a majority of her dogs by saying ‘guys, come on, let it go and don’t worry about it’.

    She did not. At least, not in public, and the attacks on those who dared cross her path continued to be crucified for daring to cross the great and wonderful author.

    It comes down to trust. The author was caught not just copying a few sprinkled phrases here and there, there was wholesale lifting of scenes tweaked enough to make it applicable to Harry Potter fanfic and not the original source.

    When there were rumblings about it, the dogs were set loose until she was faced with enough overwhelming pressure that she had to concede and made half assed attempts at ‘disclaiming’.

    And never once were those who were ripped to pieces by her fanbase and singled out as pariah in the Harry Potter community given an apology. ‘Oh…sorry about that, you know how rabid fans can be sometimes. heheheh’

    This has created an atmosphere of distrust around her now. Should people base their judgment on her past ‘offenses in fandom’? Probably not. She sold a book based on the strength of her writing.

    But there are those in fandom who did not appreciate being made fandom outcasts because they dared challenge the great author and they have every right to be a bit disgruntled that someone would make what was supposed to be fun, into a huge high school bitchslap fest.

  262. Diana Sprinkle:

    I don’t know if I’d blame the author for the actions of their friends.

    I wondered about the “never apologized” and the “threatened to sue” thing…

    I’ve heard the fanfic author had a lawyer friend, I’ve heard that many lawyers will tell a client to never admit to any wrong doing. Maybe the person sending the threats to sue was also the lawyer friend over reacting… or maybe not.

    I’m not surprised the friends gave support or repeated the author’s story… that’s sort of what friends do, perhaps they didn’t know any better or didn’t care.

    Therein lies the problem. There had been rumors (and proof in the form of emails and personal run-ins) for many years in the fandom that the author in question, along with her galpal lawyer friend, cultivating a cult of personality around the author and directing their ‘followers’ to set upon anyone who dared to disagree or cast a negative light upon her, while she sat back and waved her hands going ‘but but but I can’t control what they do!’

    In some cases that might be true. But this particular author carried a heavy weight in the fandom and wielded it quite expertly, all the while keeping her hands clean.

    Her lawyer friend, to my knowledge, wasn’t her representative lawyer, just someone who managed the legal aspects of their created archive.

    If they were such good friends, at any time the author friend could have called off a majority of her dogs by saying ‘guys, come on, let it go and don’t worry about it’.

    She did not. At least, not in public, and the attacks on those who dared cross her path continued to be crucified for daring to cross the great and wonderful author.

    It comes down to trust. The author was caught not just copying a few sprinkled phrases here and there, there was wholesale lifting of scenes tweaked enough to make it applicable to Harry Potter fanfic and not the original source.

    When there were rumblings about it, the dogs were set loose until she was faced with enough overwhelming pressure that she had to concede and made half assed attempts at ‘disclaiming’.

    And never once were those who were ripped to pieces by her fanbase and singled out as pariah in the Harry Potter community given an apology. ‘Oh…sorry about that, you know how rabid fans can be sometimes. heheheh’

    This has created an atmosphere of distrust around her now. Should people base their judgment on her past ‘offenses in fandom’? Probably not. She sold a book based on the strength of her writing.

    But there are those in fandom who did not appreciate being made fandom outcasts because they dared challenge the great author and they have every right to be a bit disgruntled that someone would make what was supposed to be fun, into a huge high school bitchslap fest.

  263. lowfatcheezwhiz said… There had been rumors (and proof in the form of emails and personal run-ins) for many years in the fandom that the author in question, along with her galpal lawyer friend, cultivating a cult of personality around the author and directing their ‘followers’ to set upon anyone who dared to disagree or cast a negative light upon her, while she sat back and waved her hands going ‘but but but I can’t control what they do!’

    Evocative language. It sort of hurts your point though as now they sound like pack of evil necromancers controlling a hoard of fan zombies. I’m sure that’s not how you meant it to sound so I’ll just move right along.

    The author still is not responsible for the actions of others. Just like the person who posted recently about her experience with said author isn’t responsible for the people emailing the death threats or sending notes to all these authors.

    lowfatcheezwhiz said… If they were such good friends, at any time the author friend could have called off a majority of her dogs by saying ‘guys, come on, let it go and don’t worry about it’.

    Um, that’s not how internet drama works at all. If one popular person speaks up and then steps down and their friends speak up and then are told to sit down, it doesn’t stop the drama or the pain. Their fans and their friend’s fans will stand up to defend as well and that makes everything particularly silly. Even if the author called off their friends and fans there’s no way to stop all the haters and all the fans that surrounded that group.

    lowfatcheezwhiz said… In some cases that might be true. But this particular author carried a heavy weight in the fandom and wielded it quite expertly, all the while keeping her hands clean.

    You think the current situation is “keeping her hands clean?” Cause um, I’m not getting that, I’m getting a large vocal band of people sure do have a hate-on for this one author and even if they don’t hate they want to rant about the injustice of it all. No one seems to be going after anyone but the author. Considering this wank is from 2001 I don’t think the author is getting off scott-free either.

    lowfatcheezwhiz said… It comes down to trust. The author was caught not just copying a few sprinkled phrases here and there, there was wholesale lifting of scenes tweaked enough to make it applicable to Harry Potter fanfic and not the original source.

    I’m not counting similar sequences of events changed enough to fit in Harry Potter cause while sad in some ways, it isn’t actually plagiarism. I don’t think you can lay claim to a sequence of events… that would limit freedom of expression a bit much. Maybe I’m wrong about that but those bits don’t bother me in this fan work.

    Er, I don’t have a problem with people being angry or upset about this thing, if that was the point of your post. I’m just not going to delude myself that I have any idea why people I don’t know did what they did or said what they said. Cause er… I’m sitting in a tiny room in Texas, so I give everyone involved the benefit of the doubt cause from the recounting of events posted recently and all the emails. No one came out of it smelling like a bed of rose.

    That’s of course my far far away take on things way out here in the internet bleachers.

    I save your post for word use. You sure have a way of casting your words to invoke a certain outlook and feeling.

    -Diana

  264. lowfatcheezwhiz said… There had been rumors (and proof in the form of emails and personal run-ins) for many years in the fandom that the author in question, along with her galpal lawyer friend, cultivating a cult of personality around the author and directing their ‘followers’ to set upon anyone who dared to disagree or cast a negative light upon her, while she sat back and waved her hands going ‘but but but I can’t control what they do!’

    Evocative language. It sort of hurts your point though as now they sound like pack of evil necromancers controlling a hoard of fan zombies. I’m sure that’s not how you meant it to sound so I’ll just move right along.

    The author still is not responsible for the actions of others. Just like the person who posted recently about her experience with said author isn’t responsible for the people emailing the death threats or sending notes to all these authors.

    lowfatcheezwhiz said… If they were such good friends, at any time the author friend could have called off a majority of her dogs by saying ‘guys, come on, let it go and don’t worry about it’.

    Um, that’s not how internet drama works at all. If one popular person speaks up and then steps down and their friends speak up and then are told to sit down, it doesn’t stop the drama or the pain. Their fans and their friend’s fans will stand up to defend as well and that makes everything particularly silly. Even if the author called off their friends and fans there’s no way to stop all the haters and all the fans that surrounded that group.

    lowfatcheezwhiz said… In some cases that might be true. But this particular author carried a heavy weight in the fandom and wielded it quite expertly, all the while keeping her hands clean.

    You think the current situation is “keeping her hands clean?” Cause um, I’m not getting that, I’m getting a large vocal band of people sure do have a hate-on for this one author and even if they don’t hate they want to rant about the injustice of it all. No one seems to be going after anyone but the author. Considering this wank is from 2001 I don’t think the author is getting off scott-free either.

    lowfatcheezwhiz said… It comes down to trust. The author was caught not just copying a few sprinkled phrases here and there, there was wholesale lifting of scenes tweaked enough to make it applicable to Harry Potter fanfic and not the original source.

    I’m not counting similar sequences of events changed enough to fit in Harry Potter cause while sad in some ways, it isn’t actually plagiarism. I don’t think you can lay claim to a sequence of events… that would limit freedom of expression a bit much. Maybe I’m wrong about that but those bits don’t bother me in this fan work.

    Er, I don’t have a problem with people being angry or upset about this thing, if that was the point of your post. I’m just not going to delude myself that I have any idea why people I don’t know did what they did or said what they said. Cause er… I’m sitting in a tiny room in Texas, so I give everyone involved the benefit of the doubt cause from the recounting of events posted recently and all the emails. No one came out of it smelling like a bed of rose.

    That’s of course my far far away take on things way out here in the internet bleachers.

    I save your post for word use. You sure have a way of casting your words to invoke a certain outlook and feeling.

    -Diana

  265. Diana,

    I doubt you’re going to find very many arguments against personal and individual responsibility. Each individual is responsible for his/her own actions.

    In this way, the group responsible for the current fanhistory is no more responsible for the death threats received by the author than the author in question is responsible for her groupies.

    The difference between the two is that the fanhistory group actively discourages and polices, to the best of its ability, those who troll other places – including the author, the author’s agent, and third party authors.

    While the author in question certainly has no obligation to tell her groupies to cool it when they get out of control, I find it difficult to accept that she remained silent during the events of Charitygate – when her groupies proceeded to flame a cancer patient on the cancer patient’s weblog.

    If people who loved me, respected me, and listened to me proceeded to flame a cancer patient, even if they found the cancer patient because of a link on my friend’s blog instead of my own, I would certainly tell them to cut it the fuck out. And I would implement the consequences available to me (banning / blocking people) in order to spur compliance with my wishes.

    There’s not a lot anyone can do when someone else wants to be an asshole. But BNFs (big name fans) do have a certain amount of power in fandom. People listen to them.

    I’m not judging the author for what her fans did or didn’t do during an episode of groupthink mob mentality.

    But I will judge her for choosing to remain silent and her non-action when she knew what was going on.

    That’s my own personal standard. One that I implement across the board. My reaction would be the same, whether online or in real life. If I see a group attacking someone, I’m going to say something even if they WON’T listen to me. I can’t imagine not saying something if I thought they WOULD listen to me.

    The death threats are inexcusable. The third party emails to other authors shouldn’t fly either. Trying to sabatoge her professional career shouldn’t be tolerated. Then again, most of the fandom (and the individuals where the fanhistory is posted) has said as much, and has tried to implement the policy as much as they can.

    You can’t base what you write and report on how others might act. But that doesn’t make you completely powerless to the reaction.

  266. Diana,

    I doubt you’re going to find very many arguments against personal and individual responsibility. Each individual is responsible for his/her own actions.

    In this way, the group responsible for the current fanhistory is no more responsible for the death threats received by the author than the author in question is responsible for her groupies.

    The difference between the two is that the fanhistory group actively discourages and polices, to the best of its ability, those who troll other places – including the author, the author’s agent, and third party authors.

    While the author in question certainly has no obligation to tell her groupies to cool it when they get out of control, I find it difficult to accept that she remained silent during the events of Charitygate – when her groupies proceeded to flame a cancer patient on the cancer patient’s weblog.

    If people who loved me, respected me, and listened to me proceeded to flame a cancer patient, even if they found the cancer patient because of a link on my friend’s blog instead of my own, I would certainly tell them to cut it the fuck out. And I would implement the consequences available to me (banning / blocking people) in order to spur compliance with my wishes.

    There’s not a lot anyone can do when someone else wants to be an asshole. But BNFs (big name fans) do have a certain amount of power in fandom. People listen to them.

    I’m not judging the author for what her fans did or didn’t do during an episode of groupthink mob mentality.

    But I will judge her for choosing to remain silent and her non-action when she knew what was going on.

    That’s my own personal standard. One that I implement across the board. My reaction would be the same, whether online or in real life. If I see a group attacking someone, I’m going to say something even if they WON’T listen to me. I can’t imagine not saying something if I thought they WOULD listen to me.

    The death threats are inexcusable. The third party emails to other authors shouldn’t fly either. Trying to sabatoge her professional career shouldn’t be tolerated. Then again, most of the fandom (and the individuals where the fanhistory is posted) has said as much, and has tried to implement the policy as much as they can.

    You can’t base what you write and report on how others might act. But that doesn’t make you completely powerless to the reaction.

  267. Jenn said… The difference between the two is that the fanhistory group actively discourages and polices, to the best of its ability, those who troll other places – including the author, the author’s agent, and third party authors.

    Yes, however the fanhistory community is based around the idea of policing it’s members with the understanding that people will follow the rules. That stated understanding makes the situations a bit different than a single author’s blog whose only stated purpose is that their journal is about them.

    This makes a difference in how much policing I’d expect from them. However that’s just my personal take such as it is.

    Having looked up the situation you posted about it appears the authors friend, who was the main person named and involved, did make two posts asking people to cut the shit out. Although there are a lot of posts in this situation that have been lost to the deleting key… however as far as I can tell this had nothing directly to do with the author herself.

    “No one seems to be going after anyone but the author.” I take this back after looking around, apparently everyone is getting it.

    -Diana

  268. Jenn said… The difference between the two is that the fanhistory group actively discourages and polices, to the best of its ability, those who troll other places – including the author, the author’s agent, and third party authors.

    Yes, however the fanhistory community is based around the idea of policing it’s members with the understanding that people will follow the rules. That stated understanding makes the situations a bit different than a single author’s blog whose only stated purpose is that their journal is about them.

    This makes a difference in how much policing I’d expect from them. However that’s just my personal take such as it is.

    Having looked up the situation you posted about it appears the authors friend, who was the main person named and involved, did make two posts asking people to cut the shit out. Although there are a lot of posts in this situation that have been lost to the deleting key… however as far as I can tell this had nothing directly to do with the author herself.

    “No one seems to be going after anyone but the author.” I take this back after looking around, apparently everyone is getting it.

    -Diana

  269. Diana,

    I really think I must correct something.

    Her lawyer friend did ask for people to stop but this was done only after people begged, really begged in their lj’s, via email to the lawyer friend, to the author, and in the lawyer friend lj asking the lawyer friend and the author, begging them to get involve, to just make a statement that this kind of behaviour by the author’s fangirls to be unacceptable. Or just to say something like they don’t represent my views, or don’t speak on my behalf, anything.

    And what we are seeing right now, what this author is experience is a tenth of what that young girl and her family went through. It was that bad.

    In many ways the author and her inner group of friends lost a bit of power in the HP fandowm after lapgate but it was charitygate that made them lose far more.

  270. Diana,

    I really think I must correct something.

    Her lawyer friend did ask for people to stop but this was done only after people begged, really begged in their lj’s, via email to the lawyer friend, to the author, and in the lawyer friend lj asking the lawyer friend and the author, begging them to get involve, to just make a statement that this kind of behaviour by the author’s fangirls to be unacceptable. Or just to say something like they don’t represent my views, or don’t speak on my behalf, anything.

    And what we are seeing right now, what this author is experience is a tenth of what that young girl and her family went through. It was that bad.

    In many ways the author and her inner group of friends lost a bit of power in the HP fandowm after lapgate but it was charitygate that made them lose far more.

  271. Erika,

    O-kay… I’m not going to compare the relative pain and suffering of people and their families. I don’t know any of these people. If you want to claim it was worse or better or greater, have fun. I’m staying far away from that.

    I don’t really think I’m qualified to talk about HP fan power as I think that’s… um silly and kind of weird in relation to the thing on pain and suffering.

    In general, I think we’re way far away from the Author in question and the whole legal use of fan fic here. Sorry if it’s my fault.

    -Diana

  272. Erika,

    O-kay… I’m not going to compare the relative pain and suffering of people and their families. I don’t know any of these people. If you want to claim it was worse or better or greater, have fun. I’m staying far away from that.

    I don’t really think I’m qualified to talk about HP fan power as I think that’s… um silly and kind of weird in relation to the thing on pain and suffering.

    In general, I think we’re way far away from the Author in question and the whole legal use of fan fic here. Sorry if it’s my fault.

    -Diana

  273. You spoke on this page about the snoopy on the barn that had to be removed. I thought I’d give you more info..
    The snoopy was painted on a red barn in Emmons, NY along interstate 88. It was a picture of snoopy on the roof and a smaller picture of woodstock above him on the small bell tower or vent tower on the same barn. After the long legal battle it took the farmer a few months to take it all down, and as you said it did have written dog gone. There where a series of changes to the barn wich if memory serves me correctly went as follows;
    1.Snoopy was x’ed out and dog gone was written under it.
    2. Woodstock was inside a sniper scope that was painted over him.
    3. Snoopy turned into a coffin.
    4. The roof was painted completely removing all traces of the snoopy.
    Also this was more like the early 90’s it had to be removed. It was a cherished symbol in the oneonta cooperstown area and we where all sad to see it go. I wish something could have been worked out but the snoopy creator wanted a incredible amount of money for copyright infringment. It had been there for 15 years befor anyone said anything. I remember as a kid that barn and we all loved it im sorry that money in a millionares pocket is more important than a comunity symboly that stood so many years and provided so much joy. If im incorrect in the order of events of the painting please eloborate on it as I would love to know if I missed something.

  274. You spoke on this page about the snoopy on the barn that had to be removed. I thought I’d give you more info..
    The snoopy was painted on a red barn in Emmons, NY along interstate 88. It was a picture of snoopy on the roof and a smaller picture of woodstock above him on the small bell tower or vent tower on the same barn. After the long legal battle it took the farmer a few months to take it all down, and as you said it did have written dog gone. There where a series of changes to the barn wich if memory serves me correctly went as follows;
    1.Snoopy was x’ed out and dog gone was written under it.
    2. Woodstock was inside a sniper scope that was painted over him.
    3. Snoopy turned into a coffin.
    4. The roof was painted completely removing all traces of the snoopy.
    Also this was more like the early 90’s it had to be removed. It was a cherished symbol in the oneonta cooperstown area and we where all sad to see it go. I wish something could have been worked out but the snoopy creator wanted a incredible amount of money for copyright infringment. It had been there for 15 years befor anyone said anything. I remember as a kid that barn and we all loved it im sorry that money in a millionares pocket is more important than a comunity symboly that stood so many years and provided so much joy. If im incorrect in the order of events of the painting please eloborate on it as I would love to know if I missed something.

  275. The topic may not be riveting to many but this fanfiction scandal has fascinated me since my sister brought it up at On the Border last week. This topic is a little outdated, but after reading the discussion, I suppose I’ll weigh in.

    I’ll admit to having written a few HP fanfics and read a few over the years. I’ve never heard of the author in question or her fic, although I was entering the on line fanfiction world at around this same time period.

    I work in a library and I can tell you that we librarians take the issue of intellectual property seriously. I know that legally fanfiction may not be right, but I have trouble denigrating it completely, esspecially when its a heartfelt tribute to the author’s world. Plagiarism is always wrong. It is misrepresenting another’s work as your own and her unrepentant on line persona is not her friend. Far fewer people would object to her if she had apologized to everyone involved and promised never to do it again. She’s never said she would not plagiarize in the future, so I would be leery of any future works.

    I understand she has written a book that will be published. I can only say that I will not buy it for myself, nor for my library unless it garners stupendous reviews or is requested by more than 10 patrons.

  276. The topic may not be riveting to many but this fanfiction scandal has fascinated me since my sister brought it up at On the Border last week. This topic is a little outdated, but after reading the discussion, I suppose I’ll weigh in.

    I’ll admit to having written a few HP fanfics and read a few over the years. I’ve never heard of the author in question or her fic, although I was entering the on line fanfiction world at around this same time period.

    I work in a library and I can tell you that we librarians take the issue of intellectual property seriously. I know that legally fanfiction may not be right, but I have trouble denigrating it completely, esspecially when its a heartfelt tribute to the author’s world. Plagiarism is always wrong. It is misrepresenting another’s work as your own and her unrepentant on line persona is not her friend. Far fewer people would object to her if she had apologized to everyone involved and promised never to do it again. She’s never said she would not plagiarize in the future, so I would be leery of any future works.

    I understand she has written a book that will be published. I can only say that I will not buy it for myself, nor for my library unless it garners stupendous reviews or is requested by more than 10 patrons.

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