Copyright Squares
Posted on April 24, 2006 Posted by John Scalzi 19 Comments
This fellow writes up a note about the Lori Jareo thing, and rather interestingly thinks the reason fanficcers are so outraged by what Ms. Jareo did is because they’re clueless slaves to the existing copyright paradigm. That should get a chuckle or two out of the fanficcers I know. I posted a rather lengthly response noting that what people think about the morality of current copyright law is an entirely separate conversation to the one that’s been going on here; click over to read it and to add your additional comments if you like. Play nice, of course, but I don’t need to tell you that.
He’s not too knowledgeable about copyright law, is he? Pre-Disney era?
Bram Stoker’s estate sued over NOSFERATU in the twenties, and Hollywood wouldn’t touch it until the thirties.
Guess that pesky law is an inconvenience to him. I guess if it benefits Disney, then it doesn’t matter if the law also protects unknowns trying to make a living off their work. How horrible someone would want to be paid for use of something they created.
Well, and this does point to a problem with the current rhetoric surrounding copyright, which is that it is targeted toward corporate copyright holders, and the interests of smaller copyright holders are overlooked. I’m nowhere as paranoid as many copyright holders, large and small, regarding the use and distribution of my work, but I also believe I have and need some protections in order to benefit from my work. One needs to be careful that in the rush to free Mickey (who should, incidentally, be free), we’re looking at the entire scope of the law and who it affects.
I followed that link and expected to read a good old-fashioned intarweb flame-war. Talk about disappointment.
His only problem seems to be that he is having the wrong conversation. He’s talking about the way things should be, the post here was about dealing with things the way they are.
K
Well, yes. That is indeed the problem.
Also, of course, sorry to disappoint your yearning for flamage. Curse me for being reasonable!
Sorry, folks – he lost me at “editors who help people right better.”
John – I give you credit for not slamming him into the wall. TO be honest, that would have been my first instinct…
the reason fanficcers are so outraged by what Ms. Jareo did is because they’re clueless slaves to the existing copyright paradigm.
Ironic, yes . . . Actually, I think it’s almost the other way around, no? Fanfiction writers are (almost) all engaged in blatantly illegal activity, but an awfully large proportion of them genuinely seem to think their activities fall under some sort of fair use. I think there’s a widespread misapprehension of the scope of the copyright code in the fanfiction community, and out among the general public as well.
Jareo’s defense that her little novel was not commercial and written only for herself and friends makes sense only if you already imagine, for whatever reason, that commercial gain is relevant in determining whether there is or is not punishable infringement (leaving aside the fact that any claim of non-commerciality is plainly belied by her posting the thing for sale on Amazon). Many fanfiction writers do so imagine, or seem to, given that they often include disclaimers at the front of their works indicating that they are non-commercial in nature. Maybe there is caselaw on this point of which I am unaware, under which you get a reduction of statutory damages for a) admitting you knew you were violating copyright, and b) claiming it was non-commercial . . . but mostly, it just makes their rampant copyright infringement look wilful to me. And I think that leads to heightened damages.
The copyright paradigm a lot of authors of fanfiction seem to operate off of is not the actual copyright paradigm as it exists in the law. I.e. whether or not the discussion here has been about the way things are vs. the way things should be, I am pretty sure the widespread outrage in the fanfiction-writing community is disconnected from either the way things actually are, under the law, and the way fanfiction authors would like things to be.
Your “fanfic/pot” analogy was brilliant.
One needs to be careful that in the rush to free Mickey (who should, incidentally, be free), we’re looking at the entire scope of the law and who it affects.
Cheers to that.
Jareo’s defense that her little novel was not commercial and written only for herself and friends makes sense only if you already imagine, for whatever reason, that commercial gain is relevant in determining whether there is or is not punishable infringement
Commerciality is a factor in determining fair use. 17 USC 107. Related is the effect on the market for the original work.
Most fanfic is probably not a fair use, even if not commercial. There are, after all, the other three statutory factors, and the courts can look at other things.
What can get you pretty well into fair use is transforming the work – parody is a prime example of this.
Can y’all tell I have a copyright exam tomorrow? B)
Part of the problem with fanfic is there has been too much passive (and sometimes active) approval by the copyright holders. Gene Roddenberry openly encouraged it. So did J. Michael Starczinsky to the point of using fan sites as reference material when he had to refer back to an earlier B5 script. And even George Lucas does this more often than he’ll ever admit.
As such, a culture which has no legal basis, but sort of exists in a grey area loosely attached to fair use exists. It has two rules: Thou shalt acknowledge thy copyright holders; and thou shalt not make a profit. This is why the Internet was such a boon to fanfic.
The trouble is before the Internet, fanfic was distributed via Kinko’s, and before that, the mimeograph. (Remember those?) Yes, you sold your little zine, but anyone thinking they’d make a profit at it was seriously, seriously deluded.
Now, because anyone can start a Usenet group for ficcing their favorite universe, a newer culture has grown up to think this is their birthright sometimes to the point of taking copyright holders and creators to task for not following “proper” storyline. “As established in fanfic,” I believe, was the line that set Lee Goldberg off on his crusade to wipe it out. (The windmills built by PG%E and other utilities being much too large to tilt at.)
“As such, a culture which has no legal basis, but sort of exists in a grey area loosely attached to fair use exists.”
Maybe I need Ms. Jareo to help me “right” better.
Internet fanfic has been ridding on the coat tails of goodwill and karma earned by zines in their unspoken truce with rights holders. Zines did establish the ” it’s not for profit so it’s ok” myth that many are holding onto as if it were gospel. I notice some vigorous defense by a zine operator or two that they are not doing anything wrong. What no self-awareness any more? It’s only because no one has taken you to task in court recently.
Fan culture in general is being overrun loudly by the selfish and the stupid who act like toddlers. Screaming it’s not fair just because they can’t do what they want. In some of those discussions I can just hear the foot stamping and see the pout.
Thanks for the commentary. For the record, the continual extensions of copyright track well with the times when Mickey Mouse might enter the public domain; this is what I meant by “pre-disney.” Also, I’m not arguing against “the pesky little law” (I’m arguing it’s immoral) or against the right of creators to profit from their work. I think most can see that’s a crude strawman of my argument.
I do think this comment nails it:
His only problem seems to be that he is having the wrong conversation. He’s talking about the way things should be, the post here was about dealing with things the way they are.
That’s on-point. I’m somewhat disturbed at the manner in which we deal with ideas, information and creativity as a society. “The way it is” is wrong, as far as I’m concerned.
I’d add that I’m attempting to decry the way in which people who become versed in “the way it is” often become semi/un-conscious proponents for the extension and continuence of the status quo. This is how corrupt institutions sustain themselves: through co-option.
Frankly, I think it’s pretty small-minded to confine yourself to “the way it is,” and pretty mean-spirited to go on and henpeck people who make attempts, clever or clumsy, to do something different. That’s what I call square, daddyo.
Finally, does the fanfic/pot analogy hit any harder if I say I was totally high when I wrote my post? Anyway, follow-up blog coming on my end.
Building a defense for one’s bad idea out of bricks called “attempting to do something different” strike me as very similar to building defenses for jerk-like behavior out of bricks called “refusal to bow to the PC paradigm.”
Not to say that the new behavior lauded by Josh is as jerklike as that of your random “but I’m just being anti-PC when I call you a n!gger” asshole. Only comparing the logic. Believe it or not, critiques of Lori’s “weapons-grade stupidity” are not, in fact, based on a slavish conformity to the status quo. There may be elements of conformity, but I submit that they are well thought-out and fully considered, not slavish at all.
Frankly, I think it’s pretty small-minded to confine yourself to “the way it is,” and pretty mean-spirited to go on and henpeck people who make attempts, clever or clumsy, to do something different.
It’s small-minded and mean-spirited to rate what somebody actually says; instead, we should give them an A for effort. I’ll happily cop to being square, but not to being stupid.
Different is not always better.
Most fanfic is probably not a fair use, even if not commercial. There are, after all, the other three statutory factors, and the courts can look at other things.
Most fanfic is not even colourably fair use, as far as I can see, so commerciality is irrelevant. Parody (well, or the occasion de minimis infringing work — I’ve seen a few of those) is the only exception some fanfic might fit into, and parody can be protected even if it involves commercial exploitation.
Actually, though, I originally wanted to put in a little note about just how extraordinarily low the bar for “commercial” can be in fair use contexts, though, but couldn’t remember the case cite, and wasn’t sure I had the facts quite right. There’s a case with Free Republic (I think) in which they claim fair use (for comment), but the court finds that the use was commercial and unprotected solely because the posting was being used to attract traffic to a site (the host) which was commercial in nature. This kind of bare minimal commerciality (e.g. if your fanfic site is ad-supported on a “free” server, say) would probably knock out an awful lot of internet fanfiction even if they could sustain an argument that it was fair use. There’s just no way fanfiction can be seen as legal, no matter how many caveats you string in front of it.
I think we can all agree that the present copyright scheme has gone too far in terms of duration. Jerry Pournelle has said multiple times, for instance, that the old 26-year copyright term, renewable once, was just fine with him. In the case of some things (like software), even that may be too long.
However…if I may make fair use of a quote from Frank Herbert’s Dune, “If wishes were fishes, we’d all cast nets.” Copyright law in the U.S. is what it is, and it should be respected, even while we’re fighting to get it made less restrictive, or at least not to have it become any more restrictive. In some number of years, Disney’s going to start pushing for “Son of Sonny Bono Copyright Term Extension Act” to keep Mickey under their thumb for another couple of decades. We need to keep watch for that, and work to squelch it. And, more recently, there’s news of a draconian IP enforcement bill that makes the Digital Millenium Copyright Act look about as permissive as the GNU General Public License…that needs to be halted as well.
Regarding JMS…I don’t know about his referring to fansites, but I do know that one of the reasons the JMS/B5 newsgroup was moderated was to prevent fanfic or other “idea” posts from filtering into the group where JMS could see them—because if he did see them, then he’d have to get whoever posted them to sign a release or else he couldn’t use them for fear of legal liability like the whole Darkover kerfluffle. (I’d post a link to the Darkover thing, but I don’t want my post to have to wait on moderation so I’m saving my one link for the next paragraph.) It surprises me a little to hear that he used fan sites as references.
There was an article published published in an entertainment law journal that advanced the case that fanfic could possibly be considered Fair Use. Of course, as it’s just an article, it doesn’t really mean anything until and unless it gets tested in a court of law—but I think she makes some interesting points all the same.
It does make interesting points. I think, though, that the author is really trying to pull too much out of the “comment” element of the Fair Use provisions. The reading of Campbell (which really just establishes that parody/criticism can be fair use) is also a bit strained, to push it further into this putative “transformative/non-transformative” paradigm.
Additionally, as one might guess from my posts on my own fanfic consumption, from the previous thread, I just don’t buy the argument that fanfic is not a substitute good for a significant chunk of readers. And fanfic, with a few exceptions (poetry, porn, maybe others) is not really clearly beyond the scope of potentially licensed derivative works. Note, for example, that Souter says:
“The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.”
I.e. creators, as a general class. You don’t escape liability just because the target of your infringement has engaged in a restricted licensing scheme. It’s also worth noting that even unusual constructions like “fusion” fanfics, where you mash together Star Wars and Star Trek, say, fall plainly within the scope of potentially licensable derivative works, because movies like Alien vs. Predator or Freddy vs. Jason do get made, for better or worse.
For those exceptions, porn, of course, (and poetry?) can be attacked as tarnishment of the trademarks on the underlying characters.
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