Reader Request Week 2005: Creative Commons and FanFic

Welcome everyone to the Whatever’s annual Reader Request Week, in which readers suggest a topic, and then I blather on about it. To start things off, let’s combine two requests that go well together. Chris asks:

Intellectual property – Where do you feel an equitable compromise lies in the fair-use/right-of-artists-to-profit-from-their-work debate? Any thoughts on the Creative Commons license, specifically as pertains to your future work? (Cory Doctorow released a couple of his novels online and in dead-tree form simultaneously, while Orson Scott Card did okay for himself with the Shadow series by releasing the first few chapters of each a few months ahead of the street date. Any plans to do something similar?)

And to this I’ll add a related question from Night Dog:

I’d like to know what you think of fanfiction. Do you think it’s a legitimate exercise of imagination, or a trampling on copyright?

To my mind (and, as it happens, as more or less stated in the Constitution of the United States) copyright exists for two purposes: first, to make sure the creator benefits from having a thought or two; second, to make sure that (eventually) the public sphere is enriched by the work of that creator. Problems arise, of course, at the extremes — when people download all the music in Western civilization off of KaZaa, for example, and get indignant at the idea they’re doing something wrong, or when Disney pays off the US Congress yet again to make sure Mickey Mouse never gets his Emancipation Proclamation, and as a result copyright terms are extended far beyond their original intent and (more importantly) to the detriment of the commons.

In my perfect copyright world, I’d have a simple scheme for copyrights: For copyrights held by individuals, copyrights would last for 50 years or the life of the individual plus 25 years (to benefit widowed spouses and heirs), whichever is longer. For work owned by corporations, 75 years and out. But I would also add a provision that after the initial copyright, the copyright holder could renew the copyright annually for the sum of 2 to the x power, where “x” is equal to the current year past the original copyright expiration, with the monies raised going (initially, at least) to US deficit reduction.

So, for example, if the copyright on “Steamboat Willie” were to expire today, Disney could pay $2 for a one year extension of the copyright. In 2015, it would have to pay $1,024. In 2025, $1,048,576. And in 2035, $1,073,741,824. By which time, of course, Disney would have finally let “Steamboat Willie” steam on to public domain. Now, given the sheer number of copyrights that Disney alone would have to protect on an annual basis, you can see how a) the corporation would have to pick and choose which things to maintain under copyright longer than their original term, thereby freeing other material sooner, and b) how quickly a scheme like this would pay down the deficit — without raising taxes! — thus benefiting the public sphere even without the public domain use of the intellectual property. Naturally, I expect you to contact your Congressperson right this very second and demand that he/she offer up the Scalzi Copyright Enhancement Act of 2005 as soon as humanly possible. You know, for the kids.

Now, having thus addressed the philosophical issue of what the lengths of copyrights should be and how to find the balance between the rights of the copyright holder and the public, let’s address the issue of ownership under copyright. Naturally, being a copyright owner myself, I wish to have and retain the full protections of that copyright: If someone’s taking my stuff without my permission and making a buck from it, I want to be able to nail his ass; likewise, if someone is distributing my work for free in a manner in which I do not approve, I want to be able to legally stop her from doing so as well, especially if it is having a negative impact on my financial bottom line. It is my work, damn it. I should have the right to control it, and legally I do.

At the same time, I don’t think there’s any value in being an intellectual property dickhead, either. What non-creative bean-counters don’t get that many creative people do is that many of the things that will lose you money in the short term, intellectual property-wise, will gain you money in the long term, because it creates a fan — someone who is actively looking for your next creative work, and many of whom, because they feel that personal connection with you, will happily pay for that next work.

Certainly I’ve benefited from it, primarily from the venue you’re reading here right now. I’ve been giving away work here for six years, including a full-length novel, and partially as a result of that, my first published novel is now in its fourth printing. Check out the comments in the Agent to the Stars guestbook and some of the most common things you’ll see there are variations of “thanks for letting me check this out for free — I’ll be looking for your published stuff now.” (Let’s also not forget that both Agent and Old Man’s War found their way to actual publication because they were available to be read online — no if ands or buts about it.) I’m a big believer in keeping active control of the work I produce, but part of that control is the freedom to share that work with whomever I choose.

It’s paid off for me, and it’s paid off for others, too. All of Cory Doctorow’s published novels are available online for free and he’d certainly maintain it’s been a boon the sales of his books. Orson Scott Card did indeed post not just chapters but full novels online at one point (I know because I downloaded Children of the Mind off his AOL forum) until apparently persuaded otherwise by his publisher (who is, interestingly, the same publisher who let Cory post his works online — but OSC’s experience was several years back in the timestream, and times have emphatically changed). Baen Books famously has its Free Library with dozens of books, and it claims that having these out there does indeed drive sales. Being open with your work works.

(BUT — is there a bend in the curve after which it doesn’t? Aside from corporate hysteria, this is an interesting question. For example, me having a full novel online is only a net positive because, aside from y’all, I’m a complete unknown; even in its fourth printing, there are still fewer than 10,000 copies of OMW out there. Cory is somewhat significantly better known than I, as Boing Boing has rather higher readership, he’s a luminary in the intellectual property arena and he’s been publishing longer than I — and yet he is also a mid-listy sort of writer at this point (saleswise). Again, the publicity is a net positive.

But what about someone like Orson Scott Card, who sells hundreds of thousands of books annually, and whose work is never not on the science fiction shelves at your local bookstore? Does the same dynamic that Cory and I use to our advantage work in the same way for someone at his sales level? Or does it simply cannibalize his sales? Bearing in mind I have no idea of Tor’s point of view on this, I could see a publisher who easily tolerates online experiments from new writers and mid-listers getting twitchy if one of their main draws started flirting with giving stuff away for free online.

The same goes for music: indie musicians who haven’t a chance getting on the radio have nothing to lose and everything to gain by letting people download songs for free. A major label artist who has to recoup a million dollars in studio fees — or the label that advanced those fees and owns the masters — may feel differently. Everyone’s looking for the bend in the curve, and naturally the more money you have in the till, the more significant it is to you.)

As for Creative Commons, it’s unlikely that I’ll do any significant work and release it under CC. It’s not that I’m unsympathetic to the aims of CC; intellectually speaking I like the concept of giving people a series of blanket permissions to rework your work, and if that’s what you want to do, go for it. Nor is it that I don’t want people to fiddle with what I write or create; generally speaking, I’d be flattered. What it comes down to for me is that I want to know what people are doing with my stuff ahead of time. If someone wants to do a “remix” of Agent to the Stars, say, it would not be onerous for them to send me an e-mail first and ask permission. I am not so unapproachable that such communication is impossible. But to reverse an earlier formulation: I often choose to be free with the work I create, but that choice is mine to make. I prefer to make such choices actively rather than passively.

All of this dovetails interestingly into the concept of “fanfic” — which for those of you who are not SF geeks, means creative writing done borrowing already-created characters and situations from popular media. Star Trek is, to mix progenitor metaphors, the granddaddy motherlode of fanfic, but suffice to say wheresoever two or more fans gather to share an obsessive love of TV, movies, music, literature or video games, so there also shall be fanfic. Fanfic is of course a massive violation of copyright, since all of a sudden Spock and Kirk are doing things Viacom never intended them to do (or Darth Vader and Yoda, or Buffy and Willow, or Harry Potter and Hermione, or Mario and Luigi or whatever), and naturally this gets the corporate IP lawyers all het up.

Honestly, though, if I were the creator of a science fiction or fantasy media property (as opposed to a mere book author) and I didn’t find evidence of fanfic online, I would be very worried. People don’t write fanfic if they aren’t already so enthralled by your universe that they can’t handle the fact you’re not producing it any faster, and are thus compelled to make some of their own — the methadone, if you will, to your pure, sweet media property heroin. A fanfic writer will buy all your media-related product, will go to your conventions, will get the DVDs and will generally slog through sub-standard and lazy stretches of your work far longer than the average mortal because they are so damn invested. And if they’re writing slash (fanfic with sex!), chances are excellent that you’re sucking in all of their take home pay that doesn’t go to rent, food and cat products. It is the Buffy slash writers who paid for Joss Whedon’s boat (or whatever other particularly silly display of wealth that he’s purchased for himself).

So as a creator, if I ever see the appearance of fanfic based on something I wrote, I’m going to be tickled seven different shades of pink, and then I’m going to make a down payment on a Mercedes. Because man, now I can afford it. So, please, off with the lot of you. Go write some OMW fanfic! Rather more seriously, as a creator I probably wouldn’t go out of my way to squash fanfic, because it’s essentially harmless and not a real economic danger. If I became aware that someone was selling their fanfic, I might have my lawyers slip them a note reminding them that he/she didn’t have the right to do that, and to stop. Unless it was really good, in which case I’d probably buy it and market it. Hey, video game makers hire programmers who started out making “mods” of their favorite games. So why not.

As a writer, I also have no opposition to fanfic. I understand that many writers who write fanfic have no real ambition to be writers aside from the specific fanfic they write — it’s a slightly more intellectual version of playing with dolls, and therefore its own end, and it doesn’t really matter what the quality is. For the fanfic writers who do actually want to be writers, I think there are advantages and disadvantages.

The advantages are that you’re writing in an established universe with established characters whose qualities and failings are well known to you; all you have to do is plug them into a situation and play the changes. It’s easier than coming up with something whole cloth — and therefore arguably an easy way to play with the mechanics of writing since the story comes partially built. It’s writing with training wheels.

The disadvantage is the same: You’re working in someone else’s universe, and there’s only so far you can go with that. Eventually you’re going to have to leave the safe sandbox of the Federation or the New Republic or Buffy. Since I don’t write fan fiction, I don’t know how difficult that is. There’s also the issue that since no one will buy fanfic except under extremely rare circumstances (for obvious copyright reasons), writers playing in the fanfic world deprive themselves of a necessary step in any writers’ evolution: Working with editors.

If people are writing fanfic simply for fun, I see very little harm in it, although this is not the response you’ll get from an IP lawyer. If people are writing fanfic to become better writers, they should be writing other stuff, since it’s the other stuff that will get them published. And ironically enough, once they’re published on their own, there’s a non-trivial chance they’ll be approached to do a media tie-in novel! It’s the circle of fanfic, and it moves us all.

(It’s not too late to get in your own reader request: Go here and leave the request in a comment.)