623 Comments on “Let’s Get Transformative”

1. I read this and I think “Grendel” .

2. Michelle:

   I love “Grendel.”

   And this is one big complaint people have: There’s a two-tier system what allows what’s essentially fanwork of older works to be considered literature, while newer fanwork of material under copyright doesn’t achieve such distinction.

   I don’t think much of this particular argument, personally. A two-tier system is inherent in copyright law and appears to have been since its creation; what people should be focusing on is the essentially ridiculous current length of copyright.

3. Interesting.

   Copyright is becoming an interesting area to me, no small part due to our Canadian Copyright Reform process going on right now – which I’m actively participating against, as it stands.

   Since delving into what’s coming up in our copyright law I’ve had to look at copyright law in general, and the USA in particular. Starting to be interesting, as is most any subject as you delve into it.

   I think you’re right too John – I have major doubts about the OTW succeeding, but if they do, I think a CC type liscense that allows non-com-deriv – still, there’s the whole idea of scope of distribution, and the fact that someone’s fanfic now can reach many more people than only a few years ago.

   I’ve written one fanfic story ever, that incidentally was published by the game company in question. It was interesting discussing between us how I retained all rights to my story, but they retained all rights to their world and characters – it was a headache, and they *wanted* to publish it – asked me for it.

   Keep your eye on this for me too – and feel free to discuss this anytime – I really enjoy your position on copyright law and fanfic, as you are in a position different from the majority simply because you are a published author making money off your work – and it’s popular enough to generate fanfic itself. I like the different POV.

4. what people should be focusing on is the essentially ridiculous current length of copyright.

   I think that this is absolutely correct. Life plus seventy years is pretty ridiculous. Life plus twenty is probably more reasonable.

5. I think the difference is that the original author(s) of Beowulf is long dead while if I were to write “Harry Potter and the Maltese Falcon” and get it on bookshelves I could conceivably reduce Ms. Rowlings future sales.

   I my view, copyright should last the author’s life, with the possible extension to the author’s spouse’s life.

6. What are your thoughts about posting fanfic to a website that carries ads?

7. sburnap:

   Not to pick nits – but if we’re extending to the author’s spouse’s life, what about the author’s children. They’re still (hopefully) making money off of the works of the author. Grandchildren? Great-Grandchildren?

   Not to say you’re point isn’t valid, I like it in fact. But if we’re extending for the life of someone benefiting from it, why don’t we continue to do so for the lives of others benefiting from it.

   I think that’s why a line drawn with a number of years after death of the author is accepted.

   I also agree that 70 years is crazy. Mark me as a vote for 20, maybe 30.

8. Evan Goer:

   “What are your thoughts about posting fanfic to a website that carries ads?”

   I’m not a fan of that, not only because I think someone’s making money of the author’s IP, but because someone is also making money off the fan who posts the work.

9. I agree. Whether the ad revenue goes to the fan fiction writer or some third party, both cases seem equally bad.

10. Beyond being a huge SF/F reader, I write fic – strange, genre-crossing-World-of-Myth style fic – but privately. I want to stay as far away from stepping on the toes of anyone (authors, publishers, etc.) as possible… so a purely legal outlet for my little hobby fascinates me.

    My first thought in reading this is, like you, wondering how much OTW rocking the boat is going to effect that unspoken agreement between ficcers and authors/publishing companies.

    Your CC idea seems to be the simplest by far, if I am understanding it correctly — it would be up to each individual author to publish the original (canon) under such a license that would allow ficcers rights to play in that sandbox, as long as they don’t profit off of it?

    However… would it be feasible at all to take a (small, edited) page from the music industry, and implement some sort of royalty system, where IF a ficcer began making money off of an author’s IP, that the original author would be entitled to a percentage of those earnings? In effect… I don’t know if this is the right term, but leasing the character/setting/sandbox to ficcers per a pre-established agreement?

11. Maeg:

    If you’re stalking about a statutory license, I think it’s possible to do in theory but I don’t think people would much go for it.

12. All copyrights will expire eventually, with the passing of time. So the abovementioned project could start by collecting those works which are no longer copyrighted, and simply add more works as they naturally pass into the Public Domain…

    (Isn’t there a risk that fans will now start arguing and flaming each other over which fanworks are “worthy of inclusion”?)
    :-S

13. John @11 – I know you’re supposed to be doing more writing than educating non-writers/wannabe writers, so I’ll open this one up (explicitly) to anyone else:

    Why *wouldn’t* there be interest in a sort of statutory license? Too much of a hassle? Too little control? Could this be something that the OTW could facilitate in some way?

    Like Jeff @ 3, the more I delve into understanding copyright and the “copyfight”, the more fascinating it becomes!

14. AR — no, copyrights are getting harder and harder to expire, and copyrights are only part of it. Disney, for instance, claims trademark on all their characters, which does not expire so long as you keep protecting it and using it.

    There’s a children’s hospital that vehemently guards the rights to Peter Pan, Edgar Rice Burroughs’ estate sets apts, banths and thoats against those who would plunder Barsoom or Tarzan’s territory… the list goes on. Does Dune expire after so many years after Frank’s death or does his son’s works keep the clock running, just because he was authorized by the estate? Anne McCaffrey’s son is working with her on Pern, does this keep her freeholds preserved?

15. Another issue may be degree. When I see these kinds of discussions, one of the things that crosses my mind is pastiche.

    In particular, as a fan of mid-century pulp horror, I sometimes find myself thinking of Lovecraft’s circle, within which a group of authors willingly shared and borrowed little bits and pieces from each other for years. It wasn’t anything as significant or momentous as, say, someone writing a series of Professor Armitage because they wanted some more of that wacky, demon-banishing librarian; but corporations (and some individuals) have gotten so aggressive in “protecting” their IP that it’s easy to imagine that if they’d been around in the 1930s, someone name-dropping the Necronomicon or Yog-Sothoth into a short story would have gotten a nasty letter over it.

    One reason I think that crowd is instructive to today’s situation (besides how quaintly laid-back they seem by comparison), is that sharing small amounts of IP clearly helped the writers. Creatively, it obviously fostered an inspirational environment where a writer like Robert Bloch (for instance) could write a “Lovecraft” story knowing that Grandpa wouldn’t sue (and would most likely be amused and offer constructive criticism, or encouragement in the form of “borrowing back” in his own work). Commercially, it effectively created an informal “shared universe” where the writers basically ended up advertising for each other’s work and creating/expanding their market (e.g. Farnsworth Wright, the editor at Weird Tales, had every incentive to support the authors in HPL’s circle–including HPL, who he famously didn’t get along with–because the writers were helping each other sell stories within what began to be seen as a “mythos”).

    I suppose what I’m getting at may be this: a fan who writes “Harry Potter Book 8” may well damage J.K. Rowling’s sales by theft or simple devaluation. On the other hand, it’s quite possible that a fan who writes a novel about a group of students at Hogwart’s in the 1950s might actually enhance sales by keeping public interest up, possibly expanding the Potterverse’s audience, and increasing Rowling’s leverage with publishers–not that Rowling is likely to need any of these things.

    In fact, she may be a bad example: one thought that occurs to me as I write is that fan “infringement” may also depend on popularity. A minor or marginal author may benefit from sharing his IP more than a blockbuster.

    I do recognize that the author’s consent is an issue in all of the above, and much of what I wrote assumes authors are willing to share. Note that authors and publishers sometimes are at odds with this sort of thing: e.g. (in music) there’s the story of Garbage attempting to license a Pretender’s song from the publisher, being refused, and then securing the permission directly from Chrissie Hynde via fax (Hynde saw awesomeness, her agents saw infringement).

16. If the big issue is that the fiction needs to be transformative, then one answer leaps to mind: slash. For instance, the Harry/Draco slash fanfic I have read is very much transformed from the original bookss, and the settings are also quite different. I am not saying everyone should concentrate on slash, but this should get another good discussion going.

17. Putting up an umbrella organization over a previously underground activity of questionable legality seems like asking for trouble. I just finished a book called “The Starfish and the Spider” about the power of leaderless organizations.

    http://www.amazon.com/Starfish-Spider-Unstoppable-Leaderless-Organizations/dp/1591841437/ref=pd_bbs_1?ie=UTF8&s=books&qid=1197569707&sr=1-1

    Giving lawyers to fanfic writers is analagous to giving cows to Apaches. It makes them stand still just long enough to act as a target.

    I personally don’t understand fanfic. Making up characters and situations is more than half the fun of writing. Don’t write a story about Superman, make up your own flying, caped demigod who’s the last son of a destroyed planet, who grew up on a farm and is now a reporter for a major city newspaper when he’s not saving the world. It’s easy.

18. ” And let’s say I want to sell this novel, so I crank it up on Lulu and anyone can buy it from me. And then Allen and Ace Books show up and say “Uh, don’t do that.” And I say, but it’s fanwork. Because I’m a fan. And it’s transformative, since my main character didn’t exist before and I have her and her friends on a part of Coyote you never visited. So it’s fair use. There you have it.”

    It’s probably not obvious on the website at this point (I glanced through and couldn’t find it explicitly stated), but selling works of this kind is a huge no-no in this community (unless they’re successfully getting something published as, say, a tv tie-in novel or something else that’s gone through “official” channels). People generally don’t do it, and for the most part do not seem to think kindly of folks who try it.

19. Matt Jarpe@ 17 sez:

    Don’t write a story about Superman, make up your own flying, caped demigod who’s the last son of a destroyed planet, who grew up on a farm and is now a reporter for a major city newspaper when he’s not saving the world. It’s easy.

    That’s another part of the reason why the stuff that I write – fanfic as it might be – will never see the light of day on the internet. I’ve put too much original work into it that I might someday be able to use as fodder for an original story.

    However, it brings to mind the question of how many digits off the serial number of a story/setting/character do you have to shave off before it stops being blatantly “derivitive”, and starts being “transformative”. Using your own example, the flying caped demigod.. which would it be?

20. Honestly, I could see them making a reasonable case that fan work (or any other original authorship derived from the original fiction of another copyright holder) within a copyright holders “world” is transformative.

    The creation of worlds is of course a significant part of the original authors work; but it is also by it’s nature a framework or setting for a story, and as such could possibly be fairly used with the creation of new original characters by the author of the derivative work.

    I believe that it may be within the realm of fair use to, for example, use Tolkeins elvish lore and language for an original novel. Such a work is clearly original authorship, with new characters not derived from Tolkiens original authorship; the derivation and transformation are both in the background of the story.

    The law however is very clearly (and I believe rightfully) against this organizations goal when it comes to the use of the originating works original characters. Character protection has been a fundamental element in copyright law since the inception of the modern copyright system.

    In using an original character created by another author, you are clearly creating a derivative work. No matter how you change that character, no matter what viewpoint you write from, you are still appropriating the identity of a unique character.

    One cannot call it transformative simply because you decided to make Voldemort into a misunderstood transsexual.

21. Making up characters and situations is more than half the fun of writing.

    Who says we don’t do that? I just posted a Supernatural story in which the original characters barely appear; the entire story is told from the point of view of an original character who goes hunting for her missing nephews, and takes over twenty years to track them down. She’s my invention in the entirety, just as dozens of scenarios and characters in other stories are my invention, including stories which are only fanfiction by virtue of my posting them labeled as such, because they contain no canon characters and no references to show events.

    People who run down fanfiction as being non-creative have a very limited concept of what can be done with fanfiction.

    One of John’s original points is well-made, though: I do feel that the crazier the story, the farther it goes from canon, the more likely it is to be protected. So Cowboy!AU McShep (Stargate Atlantis, for those reading along at home) stories are going to be seen as more transformative than my gen SPN casefile set in Joshua Tree National Park, which slots relatively easily into the gaps in canon.

22. Oh and I should note that without regard to the legality of the matter, I believe that setting original works in another authors world is a great complement to them; however appropriating that authors original characters is disrespectful of their work and intent.

    Just because you wanted a character to be different, doesn’t mean you can re-write them. If I wrote an original character, that creation is mine. I get to choose how I want that character to develop, not anyone else.

    Even if you REALLY REALLY LOVE my character, you don’t get to change them. It’s the literary equivalent of an obsessive stalker.

23. j00j:

    “It’s probably not obvious on the website at this point (I glanced through and couldn’t find it explicitly stated), but selling works of this kind is a huge no-no in this community (unless they’re successfully getting something published as, say, a tv tie-in novel or something else that’s gone through “official” channels). People generally don’t do it, and for the most part do not seem to think kindly of folks who try it.”

    Yes, but part of the reason for that is that people understand they are on the sufferance of the copyright holders. If that’s removed, then I suspect there are going to be people who will say, well, why not sell this? And of course, it still does happen from time to time, even now, as I noted with Lori Jareo example.

24. Making up their own, flying caped demigod is what got Fawcett Comics into so much trouble they no longer exist. And ironically, though it is a matter of opinion, there’s a surprisingly wide group of people who believe that Fawcett’s caped demigod’s chronicles were a helluva lot more cool and clever than the chronicles of National Comics’ offering despite the fact that Fawcett’s character was clearly a response to National’s.

    (Thereby answering Maeg’s question: you have to shave a lot off.)

    What is “fanfic,” aside from knowing it when you see it? If Michael Chabon write a Sherlock Holmes story, it’s pastiche–Holmes is public domain, obviously. If Stephen King mentions a character’s grandmother worshipping Yog-Sothoth or someone finding a copy of De Vermis Mysteriis in a creepy old New England church, it’s seen as tribute even though he’s using other people’s intellectual property which may or may not have been public domain at the time (the public domain status of Lovecraft’s work was disputed when King published “Grandma”; I’m guessing that Robert Bloch’s copyrights were probably still in effect when King published “Jerusalem’s Lot”). But if someone writes a story about wookies, it’s fanfic.

    People using other folks’ worlds and characters isn’t new. What is new is that these works receive wider and faster dissemination, copyrights last longer than ever before, and media corporations are struggling to survive shifts in how media is marketed and are facing catastophically bad sales that they blame (rightly or wrongly) on the new media.

25. “Drawing a line in the sand and saying “this is a fan” and “this is fanwork” is a proposition that I suspect would lead to some very interesting gaming of definitions, both by fans and by copyright holders.”

    It’s already happened, at least in my case – I caught a lot of flak (probably from disgruntled competitors, but that’s another story) five years ago because of my first fanfilm for Lucasfilm’s Official Star Wars Fan Film Awards, since I used my professional connections to get some recognizable names to appear – I had several people trying to get me disqualified for being too much a professional and not enough a fan, even though I was, and still am, a fan – I’ve just found ways to make being a fan pay off…

    I have serious doubts that this organization can actually change anything – personally, I’ve never been a fan of fanfic, and don’t agree with the idea that it is fair use, except in cases of parody, commentary, or similar situations.

    I wish I could find my Communcations Law thesis from college – it covered the topic of Character Copyright and Trademark issues – this was early 90s, and case law was just as much against the idea of fanfic then as it is now…

26. What I think is interesting is the assumption that once fans are less worried about receiving a DMCA at any point in time for any one of a number of things they might be indulging in for any one of a number of fandoms, each fandom typically having its own flavor of what copyright owners tend to go after, if they go after it, is that fans will suddenly go “Hey! Freedom to play means we totally own these characters and can make a profit!”.

    I think there is a level of disconnect between the fan community and those looking in but have never participated on a large scale. As jooj said, for the most part most fans agree that sort action is at best rude and I don’t know why anyone would think that opinion would change.

    There are things that are self policed with great fervor such as plagiarism (and please no one attempt to equate copyright infringement with plagiarism) and attempting to make money where you’re not supposed to make money. I suppose because of the lack of actual structure for these things it might appear that most fans totally disregard all of these things. That wanting to play with your favorite characters and universes makes you more likely to misunderstand exactly who owns them. Yes an argument can be made that not everyone understands or agrees, but from what I have observed there is an consensus that making money from ideas/characters/universes you don’t own is bad.

27. Rachel Gostl:

    I certainly agree that most fandom does their work for the love of it, not for the money, which is one reason I see it being so beneficial for people who create universes. That said, I do wonder how much of the ethos would survive a blanket fair use protection of “fanwork.”

28. John:

    It is an interesting question and to be fair there are unscrupulous and uneducated people everywhere and I myself have reiterated the definitions of fair use and copyright and all that in an effort to at least educate. I just think using it as a firm argument, “The fans will totally take advantage of the permission!” (and I certainly agree that especially in the beginning you’ll see people crawling out of the word work looking for loopholes) is disingenuous because every time the rules change someone tries to test them.

    That said, I also think that it’s going to depend greatly on how that blanket use is given, surely there’s going to be some sort of clause somewhere that says “no making a profit unless we give you permission”. Of course it’ll eventually get down to the nitty gritty of defining what profit is and all that jazz, but it’ll at least keep the lawyers happy.

29. I can speak only for myself, of course, and not in any way for the organization.

    But I am an academic doing fan scholarship (and many academics are having increasing problems with copyright owners over fair use in academic scholarship, including attempts to block down quoting any material from books and media whatsoever without payment), as well as a fan in LJ who saw the originating incident (strikethrough 07) that led to the formation of this organization.

    Disclaimer: I volunteered to serve on the Board of OTW (and am serving on the board of the Academic Journal that the group plans to publish in an annual online venue). I do not believe that anybody involved with this group or related projects wants to “make money” off fan fiction (the issue of ads on a fan archive is related although some would say that falls under the same idea as charging enough for a fanzine to pay for your production costs).

    For the real attempt to make money off fanfiction, forget Lori Jareo or the occasional fan who is totally slapped down by the majority of fandom. Go check out the fanlib.com people (who are not fans but a private company)

    I’m not sure that project was written about on this blog, but it raised huge ire among major segments of fandom that I know of (primarily LJ, online, female, slash, etc.). My graduate course and I are doing a case study on it which I’ll be putting up in LiveJournal in the next week or so.

    Nor does OTW, as far as I can tell from reading what they’re publishing, want to “lead” fandom (which would be impossible, and we all know it).

    They are able to make a certain argument, and in the case of the major Board members, back it up with their real names, concerning the validity of fanfiction. They are a non-profit organization, and plan to work with others on clarifying some of the legal issues (Rebecca Tushnet, one of the founding/Board members is a legal scholar who’s done work on fanfiction). They are, among other projects, creating an archive that cannot be sold at whim by corporate owners who might also decide, for whatever reasons, primarily economic, to arbitrarily toss users (paying and non-paying) based on word searches and claims of groups witch-hunting for pedophiles.

    If you’re interested in more information from the group, I would suggest checking out the news community on LiveJournal:

    http://community.livejournal.com/otw_news/profile

30. “Even if you REALLY REALLY LOVE my character, you don’t get to change them. It’s the literary equivalent of an obsessive stalker.”

    Nicholas Meyer, The Seven-Per-Cent Solution.

31. John, if you feel this way, have you taken any steps to license your own works under some form of CC to allow non-commercial derivatives? I mean, your statement above is much appreciated by many, I’m sure, and the estoppel doctrine might help them, but seeing you come out and take a positive step on this would *rock*.

    IANAL, obviously.

32. And what about the “universes” that are still (or were) works-in-progress, and suffered because of fanworks? Let’s not forget Marion Zimmer Bradley’s Darkover problems, or Joe Straczynski having to scuttle a “Babylon 5” episode for more than a year because a fan posted a story idea in a popular forum that Straczynski frequented…

33. Kyle Maxwell:

    No, I haven’t, although I’ve made my fanfic position quite clear in a non-legally binding sense. I may move to make some genuinely legal clarification at some point, but not right now, because I have a deadline.

34. John,

    I think a lot of your points about the dangers of exposing the community are well taken; however, one of the reasons that the organizations has formed here and now (as opposed to 20, or 30, or 40 years ago) is that the visibility of fan creations has changed: youtube and HP fandom’s sheer size, for example, have brought previously underground activities into the public light, at times rewarding some while ignoring others.

    Legal advocacy is only one part of OTW’s mission; another one is to document and archive this community’s history (both via a wiki and an academic journal, i.e., inside and outside narratives so to speak), and it’s a mission that seems quite crucial at a moment when user-generated content seems like the new and sexy kid on the block.

    You say “Yes, but part of the reason for that is that people understand they are on the sufferance of the copyright holders.” which to me suggests that you observe but not fully understand the ethos of media fan communities. There may be some fans here and there (like your repeatedly cited Lori Jareo) who either are not part of or reject the self-restrictive rules of fandom. But most of us very strongly feel that the gift economy is a *value*, not a *necessity*. We don’t charge for our stories not because we’re afraid that the copyright holder would sue us (that’s more secondary, I think) but mostly because we’re sharing our love for the worlds and characters of the source text with fellow fans and friends and don’t want to charge them!

    So, if OTW is shining the light on a subculture that has long existed in the legal gray zone of Don’t Ask, Don’t Tell, it is a light that has already been turned towards us for quite a while due to access, size, and public visibility. I, for one, strongly support OTW exactly because it emphasizes the amateur aspects of fan creations, the gift economy of fan communities, as opposed to many (often more male dominated) user-generated content that often easily mainstreams into jobs or “official” publication and industry endorsement.

    –Kristina Busse (Editor, Transformative Works and Cultures)

35. As someone who’s not associated with the fan community and doesn’t read fanfic, I’m not quite sure what to make of this. Are we talking about a group of fanfic writers forming their own club, or are they now trying to go mainstream?

    If it’s the former, then fine. Since I won’t be joining the club I don’t care. Let them have their fun. If it’s the latter, then it sounds (to me at least) a little like the passengers are trying to take over the plane.

    I’m not putting down struggling writers, hell, I’m one myself. But when did being a fan suddenly grant them an easement? Because that’s what we talking about here. “I’ve been writing fanfic for years, and nobody’s complained so far, so why can’t I publish them?”

    Playing with other writer’s Universes is one thing, but when you start using labels like “transformative” you’re one step closer to giving it a legitamacy that in my opinion it doesn’t deserve. Call it whatever you like, it’s still a ripoff.

    To paraphrase something Lazarus Long once said: “Writing fanfic is not necessarily something to be ashamed of–but do it in private and wash your hands afterwards.”

    Yes, I’m aware of the irony. : )

36. Ed

    What might be called a rip off if it’s one fan writing a story and posting it online, would be called a spinoff or tie in novel if the copyright holder and the writer had a contract for said piece of work. The only difference between a published novel/produced video is that the creator of the derivative work has an agreement with the copyright holder that involves money.

    I’m not sure why legitimacy is scary, I’m not even sure why people assume that fanworks aren’t a legitimate form creative persuit, it can still take a large amount of time, effort and heart (whether you believe me or not is another thing entirely). I don’t think that fans are craving the sort of legitimacy you’re thinking of, I think they crave a little security.

    It’s the classic big man/little man problem. A single person versus a corporate giant or successful author means the single person loses almost every time, whether the other side is actually right or not. If you want another example, ask around for some music and video related DMCAs and see how well those worked out.

37. Not sure how much it directly correlates to the conversation, but I wish I could find the article I read just a few weeks ago about fanfic and manga in Japan and–

    Ah, here it is! Japan, Ink.: Inside the Manga Industrial Complex. Or as I like to call it, Manga Dying, Dojinshi Performs CPR.

    When I read it, I instantly started swapping out variables — comics translated to stories, with doujinshi circles translated roughly to fanfic nets; publishers are publishers and rightsholders are rightsholders. Still, the equations didn’t balance out… maybe because we Americans don’t have (*can’t* have?) the same kind of anmoku no ryokai or “unspoken, implicit agreement” as the Japanese do?

    Maybe I’m rambling at this point, but I see this tying back to the fanfic artist’s self-policing of stepping over the line, and the question of how much this would change if there *was* permission given, in some form or another.

38. cofax: “I just posted a Supernatural story in which the original characters barely appear”

    Then why is it a Supernatural story? My point wasn’t that fanfic writers can’t or don’t make up their own stuff. They clearly do. Otherwise they’d be fan transcribers. It’s fun to write your own stuff. It’s even more fun to make it all your own.

39. Rachel, it doesn’t matter wheter money changes hands or not; the most important issue (at least from a theoretical sense) is creative control.

    If you have licensed your characters to another; even if for free; you have agreed to allow them some creative control over your original creations (as limited by the license). That is perfectly acceptable.

    What is NOT acceptable, is you TAKING creative control of my original works, without my permission (except in your own mind or on your own property, where you have absolute freedom of thought and conscience).

    Even if you are not competing with my works in the financial market place however, you have committed an intellectual offense against me, and my creation. Although you have not actually removed my ability to do what I want with my works, or derived income from them, you have placed a competing intellectual vision of them, alongside them; which is both illegal, and morally wrong.

    Simply, you don’t get to compete with me using my ideas, even if you have modified them. You get to compete with me using your own ideas.

    When you create something, you own and control it. You get to decide how it is used (at least for some amount of time).

    If you don’t believe that this is true legally, you are incorrect as both code and precdent will support.

    If you don’t believe this is true morally, and that the law is wrong; then what you are really advocating (at least in spirit) is the abolishment of copyright entirely; or at the very least its significant limitation.

40. Rachael,

    What might be called a rip off if it’s one fan writing a story and posting it online, would be called a spinoff or tie in novel if the copyright holder and the writer had a contract for said piece of work. The only difference between a published novel/produced video is that the creator of the derivative work has an agreement with the copyright holder that involves money.

    I’d say that’s a rather important difference. I would imagine that one of the reasons an author agrees to a contract for a spinoff (other than the money, of course) is that he/she believes the individual will do the existing body of work justice. There may be a requirement of approval as well. Neither exists for fanfic, which is part of the problem. The vast majority of fanfic is utter dreck. The same numbers also hold true for orginal stories and scripts, but at least there we’re spared having to see the worst of it by the publishing process. Thank God for editors and their colored pencils.

    I’m not sure why legitimacy is scary, I’m not even sure why people assume that fanworks aren’t a legitimate form creative persuit, it can still take a large amount of time, effort and heart (whether you believe me or not is another thing entirely).

    I don’t argue that it does take a lot of time and effort. So does building a house on someone else’s property. But neither have a right to do so without express permission.

    It’s the classic big man/little man problem. A single person versus a corporate giant or successful author means the single person loses almost every time, whether the other side is actually right or not. If you want another example, ask around for some music and video related DMCAs and see how well those worked out.

    I have little love for DMCA, but we’re not talking about taking a copy of a song we bought legitimately and converting to an MP3 so we can play it on our IPod. What you’re describing is the equivilant of covering someone else’s music and then trying to sell it without paying royalties. There’s a big difference.

41. Kristina Busse:

    “Legal advocacy is only one part of OTW’s mission; another one is to document and archive this community’s history (both via a wiki and an academic journal, i.e., inside and outside narratives so to speak), and it’s a mission that seems quite crucial at a moment when user-generated content seems like the new and sexy kid on the block.”

    That’s well and good, but I suspect the legal ramifications of the OTW’s positions are what you’ll be spending most of your time and money on.

    Likewise, as noted, I don’t doubt there’s an amateur ethos in fandom, which I think is excellent; on the other hand I rather strongly suspect that amateur ethos will change if fanwork were to get a blanket fair use pass. It might not even be that the “classic fandom” changes its ways, but that the opportunities for economic benefit would draw in people who do not have the same amateur ethos.

    Which is to say that I suspect OTW runs a substantial risk of materially changing the tenor of both fanwork and the community which creates it, if it achieves its legal goals.

42. I’m a fanfic writer and here are my thoughts on the matter. I write for fun, for my own pleasure, and to share my love of a particular universe with people across the internet. I don’t want money and would think that anyone who would want to pay for my work would be an idiot. And I happen to think that I’m a good writer!

    I’m well aware that I can only exist because of the benign tolerance of the creators who perhaps think that I and my ilk are a good source of free promotion for the original work. That’s fine.

    If fanfic writers don’t want money, then why do they want legitimacy? I guess in order to get some form of legal protection. Not necessarily in order to not get sued (I’ve always found that threat to be rather unlikely) but perhaps to not have to be forced to take down a story that’s not hurting anyone. I’m of 2 minds about that. I’m a big free speech guy, but I would take down a story if the author asked because it’s their playground. Yet there are some works that are genuinely transformative and their creators might want some legal recourse.

    Also, most fanfiction sucks so I really doubt that there’d be economic chaos if a few greedy writers out there tried to market their works as no one in their right minds would buy them. And I’d like to think that those few people who are good enough to have their works brought wouldn’t want to. I find the better the writer, the more seriously they take the unwritten rules of fandom.

43. Chris: why is it a compliment to write fiction that uses or transforms the author’s world but an insult to use or transform the author’s characters?

44. Then why is it a Supernatural story?

    Without knowing a thing about cofax’s story, I’m pretty sure I can tell you: it’s a Supernatural story because it’s written for Supernatural fans. The fan activities that OTW wants to defend arise within a community of writer-readers who give stories to each other as a social as well as creative activity (the “fannish gift economy” referred to in OTW’s statement of values).

    It’s fun to write your own stuff. It’s even more fun to make it all your own.

    And a fanfic writer might say it’s actually pretty boring to have a story that’s all your own, once you’ve experienced sharing a story with your several hundred of your closest friends.

45. M.H.

    Because you can write within an authors setting, without seizing control of it.

    So long as you do not attempt to change that world (except of course in a manner consistent with your characters actions in the setting), then you are not attempting to take control of the original authors unique creations.

    THere is no way to do this with characters; because character action, and development, by nature takes control of that character; unless of course that character is simply in the background, acting as part of the setting, consistent with the original work.

46. Scalzi,

    You say that a blanket free-for-all would attract the unscrupulous who wouldn’t follow the amateur ethos. First of all, why would you assume that it’d be blanket exemption for fanworks? There’s no way any business would give up that much control so that’s a rather strange argument to make.

    As for attracting the unscrupulous… all those unauthorized Harry Potter ripoffs floating around Asia do give me pause though I still do think that it’d be too much work for most to bother. Writing is still writing and takes much effort. There’s no way to get rich quickly off it.

    If I was OTW I wouldn’t fight for the right to sell (would never happen) but simply for the right to exist. A formal recognition of what’s essentially happening now I suppose, which is why I find this part of OTW’s mission to be rather unnecessary. There’s a kind of gentleman’s agreement going on that neither side messes with each other if there’s no harm going on. Why mess with that?

47. Rachel Gostl says:

    >What might be called a rip off if it’s one fan writing a story and posting it online, would be called a spinoff or tie in novel if the copyright holder and the writer had a contract for said piece of work. The only difference between a published novel/produced video is that the creator of the derivative work has an agreement with the copyright holder that involves money. It’s the classic big man/little man problem. A single person versus a corporate giant or successful author means the single person loses almost every time, whether the other side is actually right or not.<

    Not sure I agree with this… For the sake of argument, say I own a wonderful, brand-new Porsche. I hand the keys to a friend, and say, “Take it for a spin around the block. Don’t go on the freeway!”. That’s quite a bit different from someone walking past my house, noticing the Porsche, hopping in, and taking it for a spin around the block (even if they don’t go on the freeway). I don’t care how cool the person walking by thought my car was, I don’t care how long he had to struggle to get the door open, I don’t care how carefully or artfully he drove the car, and I don’t care if he was Richard Petty or Arnold Schwarzenegger. It’d be a different story if I’d placed a sign on the car saying “Anyone, hop in and take it for a test drive!”. In that case, you take what you get, be it a dented fender or an icky slashfic piece.

48. Oh and as to why it’s an insult, that’s simple.

    When you take control of another characters, you are imposing your will on their creation. That in and of itself is profoundly offensive; however an additional element exists here. By doing so, you are implicitly stating that your vision of a character is superior to that of the original author.

    Perhaps that is what you want to say; in fact, it may even be true… but you haven’t the right to demonstrate it.

49. Ed,

    “I have little love for DMCA, but we’re not talking about taking a copy of a song we bought legitimately and converting to an MP3 so we can play it on our IPod. ”

    I meant that there are numerous cases where a DMCA is filed against someone for material that is so obviously not a violation it’s laughable (example, someone’s blog post got hit because it listed the names of the songs currently on her recently played list on itunes) and because of the way it’s set up and individual person is at a HUGE disadvantage even if the person asserting the DMCA claim is doing it falsely.

    “What you’re describing is the equivilant of covering someone else’s music and then trying to sell it without paying royalties. There’s a big difference.”

    No. No I’m not.

    I said the difference between Fanfic and Tie ins and Spin Offs is that one involves an agreement with money. Fanfic writers do not try and sell things that do not belong to them. They SHARE them with others freely. I keep having to correct people, it’s not about money for the fan, they don’t want money. They’re not attempting to make money off another person’s work. They are playing with it.

    So to take your metaphor, the fan is covering (remixing is probably a better word here) someone else’s music and then offering the download for free.

    Now depending on your argument, I’d be willing to entertain the idea that fanfic can impact the copyright holder’s earnings plus and minus but I don’t think there’s nearly enough information collected to seriously make a guess at that idea.

50. Vincent:

    “First of all, why would you assume that it’d be blanket exemption for fanworks?”

    Because the OTW says that “We envision a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity.”

51. David,

    I think that using a material good muddies the waters a bit because as much as we love our creations, they’re sadly slightly more ephemeral than my car. So– if I were to take your example, I’d say the fanfic writer would walk past your car, fall in love with it and then go out and build an exact replica– though maybe give it a slightly different color and maybe a different engine. Then go and share those plans with all if their friends.

52. Chris Byrne,

    There’s a concept in fandom you might not be familiar with called OOC (Out-of-Character). Rabid fans will tear you limb from limb if you try to make the characters act in a way that they wouldn’t. Slash is a rather peculiar exception to this general rule.

    Anyway, I write stories about a creator’s characters to flesh out existing facets of that character that the author already hinted at but didn’t have time to develop. Others just want to put the characters into new adventures or pair them up with other people, but the characters should still react as they’re supposed to unless one is writing a parody.

    I don’t see this as taking ‘control’ of the characters. Nothing I do will change the supremacy of the creator’s vision of how the characters act. Unless you also think having a mental fantasy about certain movie characters also counts as taking control of someone’s creations.

53. As for being insulting, does this reasoning apply to pastiches (stories about works in the public domain)? Are pastiches about Sherlock Holmes or Tarzan “implicitly stating that your vision of a character is superior to that of the original author”?

    I find this a rather bold statement to make. How is an interpretation of a character somehow the same as an intent to insult an author? And why would a fan want to do such a thing to someone they respect?

54. So– if I were to take your example, I’d say the fanfic writer would walk past your car, fall in love with it and then go out and build an exact replica– though maybe give it a slightly different color and maybe a different engine. Then go and share those plans with all if their friends.

    If you really want to be accurate with this metaphor, then instead of “Porshe” (of which there are millions of variations already out there, built and sanctioned by the company) substitute “Bigfoot Monster Truck”. It’s unique, and copying it (even if you don’t make a dime) isn’t justifiable, no matter how much you love the thing.

    Now if you want to build another monster truck with a different look and name, knock yourself out.

55. Rachel Gostl says:

    >I think that using a material good muddies the waters a bit because as much as we love our creations, they’re sadly slightly more ephemeral than my car. <

    I don’t agree. To the author, the written work IS material goods, and not ephemeral in any sense of the word. The author wrote it, brought it into being, and has published it and made money off it. The ideas embodied in that work have material value, and therefore should be considered as such. I don’t doubt that John would agree that OMW and the subsequent works were brought about through a deliberate act of creation, that they exist, and have material value to him and to others.

56. Ed – Actually, from the RIAA’s perspective, ripping a cd to MP3 is almost identical to selling a copy – covered or not. The RIAA is protective of the entire ‘bundle of sticks’ that property rights have often been compared to in the past. The copyright owner has given you the right to listen to the music in one format – if you rip it to MP3, you are format shifting – the RIAA’s position is that you need to purchase a second copy, if they choose to make it available. Which illustrates how copyright law is broken, at least in how the vast majority of americans view it. In fact, it’s gotten so bad, a tv exec stated that getting up to use the bathroom during a commercial (which traditionally has paid for the costs of the tv show, and is the traditional source of profits) is equivalent to stealing from the network.

    More generally:

    Copyright owners have often been as careful as the fanfic people in skirting the edges of copyright law. Has Apple been sued for contributory infringement – due to the fact that if you equally distribute all the songs purchased through iTunes, you end up with something like 5 songs per iPod? And yes, I know that there are substantial non-infringing uses for the iPod, but an argument could be made that there is NOT for the ripping feature.

    By not fighting that battle and losing, the RIAA gets to bitch and moan about format shifting, without taking the risk that a court will rule the practice legal.

    All that being said, as neither a copyright owner (in anything commercially saleable) or a fan-fic writer, my sympathies are basically with the owners. Beyond the fact that fanfic is using someone else’s IP to create something that could divert the rightful earnings of the IP owner, and I think the example of building a house on someone else’s land is a great one, the IP owner could also feel (and possibly quite rightfully so) that the fanfic is disparaging their IP, and lowering the value.

    Fanfic people don’t seem to get that, because at some level, they all know that they are playing in someone else’s world. So if someone takes their Voldemort/Potter slash and rewrites/transforms it to Voldemort/Potter/Granger – well, they have no right to complain – and they know that. You can’t really steal stolen property from a thief – they KNOW that they don’t own it.

    Now if some news media hits a slow day, and decides to go with, “Battle in CyberSpace – Authors of Homosexual Harry Potter Stories Fight It Out! With commentary by Laurence Tribe” – do you think that the thousands of parents who ALREADY suspect that HP is satanic are going to remember anything but ‘Underage Harry Potter characters having bisexual orgies’?

    And yes, while those parents are almost too stupid to breathe and walk at the same time, should Rowling have to deal with the aftermath? The letters, the follow-up storys on other channels, the chain emails, the boycotts, all leading to lost sales?

    Fanfic people all seem to think that if they don’t MEAN to do any harm (i.e. no sales, no plagerising etc), that fanfic should be ok. But there are unintended consequences to almost anything, and if you are on someone’s else’s land, they have the right to tell you to get off if they want.

57. David K:

    Indeed, they pay my mortgage.

    That said, there are some significant legal differences between physical property and intellectual property, so allusions to one which involve the other are only likely to work so far.

58. Chris, I was really gonna stay out of this because it’s not like fanfic writers and scholars haven’t been round this argument a million times but as a literary scholar (rather than editor of TWC and thus affiliated with OTW) I quite personally have to comment here: do you mind literary analyses of your texts too (or would you if they were to be written)?

    I am always amazed at the proprietary feeling of authors who don’t seem to acknowledge that by publishing their works they effectively allow random strangers to not only read but interpret (and, yes, misread and change and hate) your creations.

    I know it’d be nice if you could control all reader responses (though possibly a bit dull), but to me the power of literary texts is that it purposefully does not intend to do so, that it has enough openings and gaps for readers to play in the interstices and margins of the text. If you were to write a manifesto, you might be legitimately upset if it got misunderstood (though we teach our students that more than likely it was the writer’s fault in those cases), but to expect *literature* to stand up to such a one-dimensional response is confounding.

    And you may be saying that of course nonfiction texts are completely different and that a literary critic obviously has different intentions (and that the different medium clearly demarcates that difference). Well, fanfic *is* a form of interpretation–admittedly, at times a quite aggressive form, often more vested in the reader than the text, but who’s to say what reading is legitimate? I’m sure there were quite a few people who felt that Leslie Fiedler was way out of line when he *interpreted* Huck and Jim’s relation in Come Back to the Raft Ag’in, Huck Honey!. Fanfic writers creatively respond to a text, but their motivations are quite close to those of us who can only do so by invoking dead French theorists–a love of the text and a strong desire to engage with it, emotionally and intellectually.

59. IP can’t really be compared to physical property, like a car or a truck, because when you take someone’s car for a spin, they are deprived of the use, which is traditionally one of the basis for property rights in the first place. If I use Scalzi’s IP to create, “Zoe’s Tail” – which discusses her brief visit to the R&R planet Hedonism: Arcturus, and delicious encounters she has with the an alien volleyball team (now, with tentacles!) – he isn’t deprived of writing about Zoe – the story explicitly begins with her spacecraft breaking down on an interstellar voyage (true to canon!), and amnesia just before she leaves, but that doesn’t mean that it isn’t Scalzi’s IP – and he could be justifiably upset with my ‘transformative’ use. And there could be negative consequences from Zoe’s Tail – not the least of which is confusion with his work.

    If you can GUARANTEE that there are no negative consequences from your fan fic, I have less of a problem with it. But as I think that negative consequences are possible whenever you share something with a ‘few hundred’ of your friends, they only way to prevent it is to not put it on the internets, and just write with yourself as the only audience. Which Scalzi has already said was ok.

60. I should clarify – I read Scalzi’s comments to indicate that he, personally, is ok with fanfic that isn’t sent to him or shared on the internets (or published), but that only goes, obviously, for Scalzi’s work. Robin Hobb may not want you to do even that.

61. “Zoe’s Tail” — eeeeeeeeeew. I so very much wouldn’t want that sent to me.

62. John, I do want to point out, many of the concerns you and some other commenters raise here are about the commercialization of fanfic. But this isn’t what the OTW is about.

    The mission of the OTW is first and foremost to protect the fan creators who work purely for love and share their works for free within the fannish gift economy, who are looking to be part of a community and connect to other fans and to celebrate and to respond to the media works that they enjoy. These fans create vibrant and active communities around the work they are celebrating, tend to spend heaps of money on the original work and associated merchandise, and encourage others to buy also. They are not competing with the original creator’s work and if anything help to promote it.

    If you want to sell your derivative Harry Potter novel, on the other hand, you are going to have to make a strong case for allowing you to do so without authorization from J.K. Rowling. The courts are going to be justly skeptical that you are borrowing her property for any reason other than to make yourself some cash off her characters.

    It’s still not automatically infringing — there are already plenty of cases where transformative works legitimately circulate in the for-profit marketplace as well: parodies such as The Wind Done Gone (the retelling of Gone With The Wind from the perspective of a slave), critical analyses that quote extensively from an original, “unauthorized guides,” and other types of transformative works have long traditionally been sold.

    But that really isn’t what fanfic writers and fan creators in general are doing, or looking to do. We just want to enjoy our hobby and our communities, and to share our creative work, without the constant threat hanging overhead that an overzealous lawyer at some corporation will start sending out cease-and-desist notices, relying not on legal merit, but on the disproportionate weight of money on their side.

    The OTW does not at all oppose the derivative works right that allows copyright owners to authorize a mass-market film adaptation, for instance, or allows Anne McCaffrey to authorize Todd and not somebody else to commercially publish Pern sequels. We do however support a broad understanding of fair use to protect fanworks; we’re saying that this is legitimate creative work, and that fans have the right to respond to the works that capture their imagination.

    All that said — thank you for linking and to everyone here in the discussion! We’re absolutely going to expand our FAQ over the coming weeks with more answers to the many questions we’re seeing raised in the various discussions, so if you’re curious to learn more, you can follow along and we’ll have more news soon.

63. Scalzi, what are you willing to pay me NOT to write and send that story to you?

64. If you can GUARANTEE that there are no negative consequences from your fan fic, I have less of a problem with it.

    That’s a rather high bar there, Tor. Can a person really guarantee anything in this world? There can be unintended negative consequences to everything, but some consequences are more likely than others.

    People keep talking about negative consequences, but I think it’s just as likely that positive consequences could arise. I know many people who after reading a good fanfic go out and buy the original source work because they want to read about the actual characters and the adventures the fanfic was based on. Fanfic also works as free promotion spreading awareness that a work exists and is good enough that there are people who think highly enough of it to want to play with it.

    And yes, the author could kick me off his or her land. That’s always been their prerogative. I’ve always been thankful that most fiction creators think to some degree that communities of fans are something by which to be flattered and not to be afraid.

65. John Scalzi said:
    >That said, there are some significant legal differences between physical property and intellectual property, so allusions to one which involve the other are only likely to work so far.>

    I’ve had to deal with intellectual property issues occasionally, and understand the differences between the two, but I wonder if the current laws haven’t pushed physical and intellectual property too far apart. Tor brings up the idea of deprivation of use – e.g. his writing “Zoe’s Tail” doesn’t prevent John Scalzi from writing “Zoe’s Tale”. However, one could argue that, while it might not prevent it, it certainly does impact the reception that the Scalzi “Zoe’s Tale” might receive, especially if “Zoe’s Tail” received widespread recognition (or infamy). Consideration of intellectual works, and the ramifications of our treatment of them, is likely to become more and more important as significant proportions of the population shift to a more ‘online’ mode of living.

66. If authors want to give the ok to communities to write fanfic – either officially or not, that’s obviously their prerogative. Obviously, what we are talking about is authors who aren’t willing to give that permission.

    The possibility of positive consequences is something that you can use in your letter writing campaign to convince authors who haven’t given permission into those who have. But my feeling is that if I am going to do anything that might have negative consequences to something that YOU own, no matter if I realio trulio believe that only good things will happen, I have to get permission.

    If I wrecked your car, I could buy you a new car. If I ruined the popular opinion of your work, I suppose I could make up your lost wages, but I couldn’t fix public opinion of your work. So it has to be a high standard.

67. One of the controversies seems to be centered around the notion that “legality for all fanworks” would include the right to distribute or sell those works at will, or the right to infringe on the original creator’s income or public reputation. I don’t expect that to happen.

    “Sex between consenting adults” is legal in the US… but that doesn’t mean you can do it anywhere, or sell it. Doesn’t mean you can use it to get ahead in the office, either. (Nor withhold it to get ahead in the office.)

    Allowing that the basic activity is legal doesn’t mean accepting that all individual acts of that type are legal.

68. My art teacher explained the difference between transformative and derivative very plain and clear.
    If the average Joe can recognize it on first glance it’s not transformative. The more famous and well know something is the harder it is to truly transform it. For it to be truly tranformative it has to make the consumer of the art stop and go “Oh you’re right it is such and such in disguise.”

    I see no way to write copyright law so more than one person can hold copyright at the same time over parallel materials with out conflict. Fanfics suing each other or the original creator is a bad scene. As it is look at what happens when partnerships fall apart and they fight over the shared copyright.

69. One aspect of the argument that hasn’t been touched too much upon is the feminist POV, which John S. mentioned in his post. Czesperanza, a Live Journal blogger, had an extensively commented upon post on this topic. Her post and the comments on it inspired Novik’s crusade to legitimize fanfic.

    For me, no matter how seriously the fanfic writer approaches their craft, fanfic is the hot-dog, hamburger, fish sticks, macaroni and cheese, corn-dog *kid-food* of the writing world. That doesn’t make it horrible, awful stuff. Everyone enjoys their comfort food, the stuff they liked when they were a child. And if it’s all someone bothers to eat/write, that’s okay.

    I happen to agree with the person who said it’s easy enough to create your own world and characters. But then, of course, you don’t have the built in audience and politics of fandom (more kid food). The fanfic writer doesn’t have to work as hard to gather an audience as the writer who cares to submit their work to editors and face rejection hundreds of times.

    There are plenty of extremely talented fanfic writers. Many of them have crossed over and had books published to great acclaim. It’s frustrating to see so many talented women writers sideline themselves into a grayland of questionable legitmacy by not exploring their own imaginations in avenues that aren’t limited to fandom. Fandom is by its nature a limited audience. But, better to be a big fish in a small pond? Is Novik helping female fanfic writers by trying to legitimize fanfic in the eyes of the law?

70. The idea that “transformative” hinges on popularity (or lack thereof) is ridiculous. It means that Harry Potter fanfiction would be mostly not transformative–because the character names and settings are widely recognized–but fanfiction based on Lichtenberg’s “Dushau” series would be mostly acceptable, because few people even know it exists… the series won no grand literary awards and set no sales records.

    “Transformative” should be judged by similarity to the original work (and what “similar” means is a topic worthy of a swarm of essays and possibly several court cases), not by whether or not it’s made the New York Times bestseller’s list recently.

71. Also, some people seem to be overestimating the impact of fanfiction. I bet that most people don’t even know what the word means. It’s pretty hard to make fanfiction a menace to the livelihood of writers when the only people who know about it are those who read it or those who are totally indifferent to it. Those who read it are already predisposed to like the author’s work to begin with. Those who don’t read it will never feel its ‘corrupting’ effects.

    As fanfic has existed before the internet even existed (I’ve heard of mailing groups that used to mail around the latest Star Trek fanfic), I doubt that it’s going away. Maybe you can force it to go underground but all you’ve done is piss off the fans. I don’t think any more money will be made because fanfic is no longer on the internet. I believe the contrary. In any event, the reality is that fanfic exists and there would probably be more negative consequences from trying to ban it than from trying to deal with it.

    I don’t want to analogize to music downloading because there are important differences in my opinion, but there is one important similarity. The music industry had tried over a decade to clamp down on it. I think you all know where I’m going with this.

    Clearly, that is a pragmatic argument rather than a legal or moral one. I admit that I’m legally dubious. I don’t see anything morally wrong with what I do though. How does one steal an intangible? Scalzi still owns Zoe. He still owns all the royalties that comes from his books. All I’m doing is playing around with my imagination.

    I suppose, Tor, this is where you come back and say that I can play around all I want but I just have to keep it to myself. But why? I’m not posting Harry Potter and the Order of the Phoenix on the net. If I was then that would be a case in which I was taking money out of Rowling’s pocket. But if I was to write a story about Harry Potter, you would still have to buy the book or go to the library to discover who this chap was.

72. I do agree that if the author says no you can’t then that’s the end of the story. That’s actually the policy of fanfiction (dot) net. A few authors like Anne McCaffrey asked the site not to host fanfic about their characters and the site complies with that.

    Obviously, that doesn’t stop private websites from doing what they want. I still don’t see what harm they’re doing, but I would have to agree that in the instances where the author has an express preference for such stories not to exist then it should be complied with. It’s their toy and it’s up to them if we can borrow it.

73. Huh? The quest to legitimize fanfic is a feminist one, because most fanfic writers are women? That seems counter-intuitive. Let’s legitimize an area of writing (for women) that is basically founded on the ideal that they cannot profit from the work – and make it *ok* for them to toil in relative obscurity (fanfic communities).

    How about instead, working with them to take what they’ve learned in fanfic, and helping them to become freelance/published authors, using their own IP. Take the top 10 acknowledged fanfic writers, who want to break out, and get them editors and whatever else they need to succeed.

    Saying that one the one hand, fanfic is ‘kiddy food’ – and on the other that we should legitimize it for women, communicates to me that you don’t think that most female fanfic writers can hack it in a professional kitchen – so let’s lower the standards.

    Professional chefs can and do make comfort food. But they can also make hollandaise sauce.

    I’m sorry – I don’t get the feminist angle here.

74. Chris and others — It’s interesting to me to see authors rush to defend their characters from being sullied by fans, when the chances that any significant amount of fanfic will be written about any given novel are so vanishingly small. Harry Potter and the Lord of the Rings are the only two book series that have ever spawned large, vibrant fanfic communities. Even the works of wildly popular authors like Terry Pratchett, Neil Gaiman, and Lois McMaster Bujold are rarely the subject of fanfic (in fact, all of their books qualify for the annual “rare fandom” fanfic exchange).

    The vast majority of fanfic is written about TV shows, which are already collaborations among large staffs of writers, not all of whom share the same views of the characters in question. There are lots of possible reasons for the preeminence of television in the fanfic world (pretty actors, long serialized stories…), but I sometimes wonder if the contradictions and the missing links that arise from shared authorship aren’t a big part of the attraction. Works by a single author are much more seamless.

75. Elfwreck, he was aiming at recognizability and popularity makes that harder. He would also shout “Derivative is an insult!” and flunk students for not being original enough. Kinda old school in his art ethics but had some points about doing your own work. This of course was art, painting sculpture and drawing where the expectations are a little different and more ruthless than writing.

76. It’s their toy and it’s up to them if we can borrow it.

    They sold it to us… Matel doesn’t get to tell people what clothes people can put on Barbie, and neither Warner Brothers nor JKR gets to tell people what stories they can tell about Harry Potter.

    Authors’ wishes should certainly be taken into consideration. But it’s not as simple as “they made it; they own it.” Just as sellers of physical works don’t have the right to insist “you may not use my creation for ____” (can’t say “you must not drive my golf cart on dirt roads” nor “you can’t drink alcohol out of my line of children’s cups”), authors cannot reasonably say “you may not imagine my characters in settings I dislike.” Nor even, “you may not share such imaginings with other people.”

    It’s reasonable for them to say, “you may not display your stories in ways that negatively affect public opinion of my original creations.” But it’s ridiculous to say “D.C. can insist that children not pretend to be Superman–or at least, they can insist that doting parents not swap photos of their four-year-olds wearing towel capes.” And that’s what it means to say “authors can insist that nobody create fanfic of their works.”

    There’s no obvious, sharp line between creative expression and “infringement.” And wherever that line is… it’s not automatically placed at the point of creator’s consent.

77. Erika:

    “It’s interesting to me to see authors rush to defend their characters from being sullied by fans, when the chances that any significant amount of fanfic will be written about any given novel are so vanishingly small.”

    I know of a single story of OMW fanfic (sent to me but not read); beyond that I’ve never heard so much as a squeak.

    It seems to me that most fanfic is inspired by media other than books.

78. If you don’t believe this is true morally, and that the law is wrong; then what you are really advocating (at least in spirit) is the abolishment of copyright entirely; or at the very least its significant limitation.

    Well, there are in fact a lot of people who have very sound reasons for thinking that copyright has become very, very broken, and that a significant limitation is in order.

    Public domain was the default. And while public domain can be very bad for authors, it’s (generally) very, very good for culture. The classic example, of course, is William Shakespeare shamelessly stealing other writer’s characters and plots and improving on them. If Shakespeare’s sources’ feelings were hurt, it’s hard to work up much depth of feeling over it four centuries later.

    I say “generally” in the above paragraph because public domain can be bad for culture if authors refuse to publish because there’s no monetary incentive to do so. Humans are such creative creatures and such natural sharers, that this might be a marginal problem. But this potential problem and the moral rightness of a creative person being rewarded for work is the reason we have a compromise between the social good of public domain and the individual benefit of renumeration for work–a limited right to limit the ability of others to make facsimiles of a work.

    Extending that limited right to curtail facsimiles to curtail derivative works is an expansion of the concept of copyright that is partly the result of social and legal blurring of copyright and trademark. Combined with the extension of the length of copyright, and we have a monster that threatens to stifle the public domain, reducing the public domain solely to works created before the Berne Convention at the turn of the 20th century. This isn’t healthy for culture. Creators of derivative works are right to worry that efforts which would have been acceptable a century ago might now expose them to liability in today’s restrictive climate.

    It’s not merely that one can’t write their own “Harry Potter goes on a romantic holliday with Draco” slashfic. It’s that a mere quote, allusion or similarity could raise the threat of liability: your story about a time-traveling cyborg is a lot like my story about a time-traveling cyborg. Indeed, the climate is such that even plainly insane claims–e.g. a lawsuit filed several years ago by a woman who claimed The Matrix movies were stolen entirely from her work (as opposed to stolen from William Gibson, Philip K. Dick, a freshman philosophy course and several animes)–can make it through the door and survive motions for summary dismissals (an expensive prospect).

    Abolish copyright? No. Significant limitations? Hell yes, but it’s not gonna happen.

79. I suppose, Tor, this is where you come back and say that I can play around all I want but I just have to keep it to myself. But why? I’m not posting Harry Potter and the Order of the Phoenix on the net. If I was then that would be a case in which I was taking money out of Rowling’s pocket. But if I was to write a story about Harry Potter, you would still have to buy the book or go to the library to discover who this chap was.

    You could make a case about someone hearing about Harry Potter and deciding to look around on the web to find out more about him, only to stumble on a Harry/Draco slashfic story and be completely turned off from ever reading one of Rowlings books, that this would represent not only lost income but slander as well. It would be an interesting court case at least.

80. Is this where I confess that I read the Harry Potter series because a graphic Harry/Snape story was posted to an email list? (One that had no connection to books, children, or pop culture.)

    I had no interest in this series until I found it could inspire writings that were more interesting to me than kids’ adventure stories. Now, I’ve bought the entire series (a few of them used), the U.K. editions so I can compare them, and a few random HP accessories.

    It can be argued that the wild popularity of the HP books is based, in part, on the availability of fanfic that appeals to people of all sorts.

81. Tor:

    Let’s legitimize an area of writing (for women) that is basically founded on the ideal that they cannot profit from the work – and make it *ok* for them to toil in relative obscurity (fanfic communities).

    How about this formulation, then: let’s legitimize an area of writing (mostly done by women) that is basically founded on the ideal that profiting from the work is irrelevant to the goals of the work, which are in large part social – and make it okay for them to do the work that they enjoy doing within the communities that they have constructed for themselves, for that purpose.

    Does that sound more feminist? Because I do believe it’s more accurate. Why should getting paid for writing be the only mark of quality in writing? Why should the only audience that counts be the largest (or predominantly male) one? Why should people who don’t like to eat hollandaise sauce learn to make it?

82. The idea that “transformative” hinges on popularity (or lack thereof) is ridiculous.

    If this was a reply to an earlier sloppy comment of mine, my apologies: my point on popularity was addressing the degree to which a derivative work helps an author or hurts an author. A marginal author may benefit from derivative works more than a well-known author. E.g., H.P. Lovecraft was a marginal writer whose survival and subsequent endurance was very much the result of fans “stealing” from his work and thereby advertising it. J.K. Rowling, on the other hand, has no trouble getting published and isn’t likely to need a boost after she dies.

    Or, I could be totally wrong, of course.

83. How about this formulation, then: let’s legitimize an area of writing (mostly done by women) that is basically founded on the ideal that profiting from the work is irrelevant to the goals of the work, which are in large part social – and make it okay for them to do the work that they enjoy doing within the communities that they have constructed for themselves, for that purpose.

    Are you saying then that fanfic is the 21st Century version of the quilting bee?

84. Tor said:
    “Saying that one the one hand, fanfic is ‘kiddy food’ – and on the other that we should legitimize it for women, communicates to me that you don’t think that most female fanfic writers can hack it in a professional kitchen – so let’s lower the standards.

    Professional chefs can and do make comfort food. But they can also make hollandaise sauce. ”

    I was probably not clear enough. I’m sorry. It’s MY opinion that fanfic is like kid food, or comfort food. I don’t think that’s Novik’s position at all. It’s mine.

    I think fanfic is a good for writers starting out. You have your character dynamics, your setting, your universe rules, all set up for you. There’s little brainwork required other than plotting (unless it’s a purely sex fic: long plotty fanfics are few and far between these days) and getting the characterization as close to canon as possible and perhaps getting your “voice”. It’s like chocolate cake in a box. Pour in the eggs, stir, and you’ve got cake without creating from scratch.

    I like your idea in this paragraph: “How about instead, working with them to take what they’ve learned in fanfic, and helping them to become freelance/published authors, using their own IP. Take the top 10 acknowledged fanfic writers, who want to break out, and get them editors and whatever else they need to succeed. ”

    I think something along your idea would be much more encouraging to writers who want to go pro. Not all fanfic writers want to go pro. But I don’t think that’s a reason to legitimize fanfic in the law.

85. It was a reply to Adela’s comment mentioning “If the average Joe can recognize it on first glance it’s not transformative. The more famous and well know something is the harder it is to truly transform it.”

    I was just stating that, whatever the difference is between “derivative” and “transformative”–it’s not based on how popular the original work is. Or was.

    I also acknowledge that what an art teacher calls “derivative” may not have much connection to the legal meaning of the term in cases of copyright infringement. An art teacher is trying to push students into their own style & creations; a fanficcer may be deliberately imitative and still make a transformative work.

86. …this would represent not only lost income but slander as well….

    Not even close. First, slander is spoken. Second, it’s not libel, either, which is a defamatory statement in print: you’re talking about statements about fictional people, not statements about real people that might be injurious to their reputations.

    You might, however, be talking about interference with Rowling’s trade or depreciation of her trademarks, which could be actionable–I’ll leave that subject to someone who has dealt with intellectual property law since law school.

    (How on earth was that 11-12 years ago, he wondered as he typed?)

87. Ed:

    Are you saying then that fanfic is the 21st Century version of the quilting bee?

    Except for the fact that it dates back at least to the 1960s, yes, I suppose I am.

    …Given the content of a lot of fanfic, this is making me think strange, strange thoughts about quiliting bees.

88. You could make a case about someone hearing about Harry Potter and deciding to look around on the web to find out more about him, only to stumble on a Harry/Draco slashfic story and be completely turned off from ever reading one of Rowlings books

    The obvious defense would be asking if said reader would also have been turned off by true facts about Rowling’s books such as Dumbledore being gay or the books talking about witchcraft. There might be a causation problem. Also, if I hear a bad review from a friend of the actual books and don’t buy the book, is that slander? People don’t buy books for all kinds of reasons, some of them true and some of them not (see Christrian Right outrage).

    Also, what if this hypothetical reader stumbled across a non-fiction essay discussing how the Harry Potter stories are sexist and racist? Doesn’t that also cause negative publicity? But that’s okay because no actual characters were used or harmed in the making of the essay? There are many sources of negative publicity. Why is fanfic to be singled out?

    it’s ridiculous to say “D.C. can insist that children not pretend to be Superman–or at least, they can insist that doting parents not swap photos of their four-year-olds wearing towel capes.” And that’s what it means to say “authors can insist that nobody create fanfic of their works.”

    That’s actually a good point. I suppose what I’m talking about is more about respect for the author’s wishes rather than saying it’s wrong to imagine against an author’s wishes.

89. Great post, John.

    Personally, I tend to very sympathetic to, and happy to give the go-ahead to, adaptations of my work in other media, like film or music or theater, that aren’t made for commercial purposes, with the expectation that the people making the request can do whatever they like with the work–that truly is transformative, and at that point I like the cross-pollination of imaginations. (That would also apply to people paying me to adapt those works in other media, for commercial purposes, of course.) I also really wouldn’t mind if someone did a riff off of a stand-alone story. But if someone wrote an Ambergris story or a Veniss story–to name two of the settings I’ve used repeatedly–it would feel very strange. In fact, it would feel invasive and I would likely smash a flower pot over that writer’s head, metaphorically-speaking. And if they came to me for permission, I wouldn’t give it, *unless in a particular case there was a compelling artistic reason to do so.*

    I’m all for amending copyright, for creative commons, etc., but the point is–each creator should have the right to decide what they are most comfortable with. The reader is free to interpret a work of fiction as they wish. They’re even free–to give the right and logical correction to the Barbie example above–to cut the pages up and rearrange them. or put a funny hat on the book. Whatever floats your boat. But I don’t think you have the right, without permission, to reuse characters/settings. It’s not a matter of compensation. It just feels weird. And because I created those characters and settings, I don’t have to offer a logical explanation beyond that.

    Now, after I’ve been hit by a bus and am dead…I don’t give a crap what happens. So I do think there is a time issue that should be given consideration. And I don’t mean any offense to fan writers–it’s entirely possible someone could make a case that would make me change my mind in a general way, but at the moment…

    JeffV

90. Then why is it a Supernatural story? My point wasn’t that fanfic writers can’t or don’t make up their own stuff. They clearly do. Otherwise they’d be fan transcribers. It’s fun to write your own stuff. It’s even more fun to make it all your own.

    It’s a Supernatural story because the story I wanted to tell is about that universe. In fact, it pokes at several of the basic premises of the show, rotates it, and looks at twenty-four years of canon from an entirely different perspective. Without the context of Supernatural the story wouldn’t be nearly as effective as it is. In fact, the story would be pointless without the context of the show.

    Which, I would note, is just as true of Wicked or Ahab’s Wife (not that I’m honestly comparing the quality of my storytelling here, just the concept).

    I don’t want to make money off my storytelling: I want to amuse and move and surprise my friends, stretch my writing muscles, and participate in the media-fandom community. Fanfiction allows me to do that while challenging some of the problems I have with the show, and I don’t have to spent six months sending a story out to a variety of editors and praying someone will accept it and then publish it eight months later.

    Sure, there’s a certain element of guaranteed audience and instant return on investment involved, but there’s nothing wrong with that.

    I’m not going to comment on the concept of fic as “kiddie-food” because I find that incredibly patronizing and insulting. Some fanfiction is comfort-food, some of it is meat-and-potatoes, and some of it is an endive salad with proscuitto and gorgonzola.

    Getting fanfiction legitimacy doesn’t mean it’s going to be sold for profit: it just means, wouldn’t it be nice to not have this same damned argument about it every time it comes up?

    Nobody is harmed by my writing and sharing these stories, and god knows I’ve had enough people start watching a show after I wrote fic about it that the Jim Henson Company, at least, owes me half a dozen toasters.

91. Also, what if this hypothetical reader stumbled across a non-fiction essay discussing how the Harry Potter stories are sexist and racist? Doesn’t that also cause negative publicity?

    Or, for that matter, the Onion story about Harry Potter promoting Satanism. I suspect that one story caused J.K. Rowling more headaches than all the Harry/Draco fanfic in the world combined.

92. Okay, after having read the other comments on this post;

    If fanfic is indeed more about social interaction and acceptance than it is about dollars and cents…

    And if fanficcers are truly interested in taking the authors wishes into account…

    And if they just want to have fun without hurting anybody…

    Then perhaps we need to create a technological version of the video store’s back room, with thick red curtains and a sign that says “Anyone who gets creeped by Kirk and Spock fondling each other should stay the hell out“. If it’s compartmentalized, I doubt many people would object.

    And to Mary Lou,

    You’re having strange throughts? My mom quilts! I so didn’t need that image! LOL

93. I think an important point that has been lost is that most fan stories are about media other than books. As someone pointed out, almost all film and tv scripts have multiple parents. There is no one true author whose vision is being besmirched. There are multiple and often contradictory visions being presented to the world. Watching media and reading a story about a visual experience are different enough that it’s hard to see how an X-Files fanfic would hurt X-Files the tv show.

    As for fan stories based on books, I have to say there’s a bit of egoism involved with some authors’ opinions. I’m sorry to say it but unless you’re a Rowling or a Tolkien, hardly anyone is going to write a story about your book. There is somewhat of a bandwagon mentality among many fans. And if you are a Rowling or a Tolkien, you’re probably rich and famous enough that one bad slashfic is unlikely to undermine your literary empire.

94. Then perhaps we need to create a technological version of the video store’s back room, with thick red curtains and a sign that says “Anyone who gets creeped by Kirk and Spock fondling each other should stay the hell out“. If it’s compartmentalized, I doubt many people would object.

    But why should I have to sit in the back room? That’s where I am now. If I’m not costing anyone any money and nobody is injured by my actions–and in fact there’s an argument that fan activity drives investment in tv and movie franchises, leading to more income for the producers–why should I have to hide away?

    And I have to say that there is a real odor of “girl cooties” in a lot of the negative talk about fanfiction: if women write it for fun, it can’t be any good, the same way if women sew or knit for fun it’s not art. Note, please, I’m not saying anyone in this discussion is saying that. But recently there was a bunch of press about a guy who wrote Harry Potter Vol. 8 and sent out press releases, and somehow the reaction to that was a lot more generous than it usually is when a reporter discovers the primarily-female world of fanfiction…

95. Just in case people missed them (because they were caught in the moderation queue and I just released them) there are comments from Naomi Novik and other OTW principals in the thread. Scroll back up to find them.

96. If it’s compartmentalized, I doubt many people would object.

    Shrug. I wouldn’t object to that. But it’s the internet. That would be impossible to enforce so while it’s a nice idea…

    And I would again submit that the fan world is very much already divided off from the rest of the world. Only other fans, geeks, and people who’d have reason to be in the know even know we exist.

97. Naomi Novik:

    “John, I do want to point out, many of the concerns you and some other commenters raise here are about the commercialization of fanfic. But this isn’t what the OTW is about.”

    I don’t doubt that. I suggest it may be an unintended consequence of a legal strategy that seeks to carve out a fair use immunity for fannish works, however. Campbell certainly recognizes that a commercial intent of a work does not necessarily hinder its fair use qualities; if you’re going to use Campbell as a pillar of your reasoning it seems to me you’ll need to acknowledge this aspect of the ruling, and the consequences therein. Also, and to the point, what you intend the OTW to be about is not necessarily how it will be perceived, particularly, I suspect, by corporations whose IP the fannish community writes about.

    If you’re suggesting that OTW is going to attempt to thread the legal needle so that non-commercial derivative/transformative fannish work is seen a fair use but commercial derivative/transformative fannish work isn’t, that’s fine; I’ll be interested to see how you do it.

    I don’t imagine companies with huge amount of IP will take your reasoning lying down, however. So if you do head into legal territories, I have you have both smart lawyers and a hell of a deep pocket to pay them out of.

98. Vincent, Kristine etc…

    Well firstly, hell yes authors have a right to be proprietary about their original creations.

    You may feel like as a fan that you have partial “ownership” of a character or story because of your fandom; lord knows I do.

    I feel quite proprietary about some other authors characters and I get very irritated when they screw them up, or ignore them or whatnot; and yes, I know I am admitting to that same implied insult I was talking about before. Two words and letter Laurell K. Hamilton… nuff said

    At any rate, though I may FEEL like I have a stake in, or in part a right to those characters; that feeling is incorrect. It is legally, and morally incorrect. Those characters are the authors original creations, they have the right to do with them what they please; and other than in my own head or on my own private property, I do not.

    Now, all that said, I know I wouldn’t want to control all my readers reactions and responses to what I write (I should note, I only write non-fiction for money. I haven’t sold any fiction, nor do I plan to for the moment). That would be incredibly boring… though I know of some authors who DO want such control, I think that’s a bit immature.

    What you do in your head with characters is up to you; but the second you publish something that can be read by the public; even if it is only intended to be read by a small(ish) fan community, things have veered off the rails.

    At that point, you are taking control of someone else’s property without their permission. Even if it doesn’t harm them, even if you are respectful and appropriate… hell even if your fiction is better than the authors original work (and I’ve seen it a few times); you’re still using their property without their permission, and that’s wrong.

    Oh lest anyone think I hold these positions because I hate or am opposed to fanfic, I don’t and I’m not (and I’m very familiar with OOC, and with fanfic culture in general). I’m a contributor to a couple of fanfic boards (I act as a fact checker/sounding board on firearms, self defense, and military issues, which I write about professionally); and there is some fanfic I greatly enjoy.

    I simply admit that it’s wrong, and that I read it anyway.

    This argument is just like that of downloading copyrighted music, or movies without paying for them. Everyone knows it’s wrong, and illegal; but lots of folks do it anyway. Some are honest about it, and admit that it is both wrong and illegal and they don’t care. Others on the other hand steadfastly insist that it isn’t wrong, simply because they don’t think it should be wrong; because it doesn’t FEEL wrong to them (or because they FEEL that record companies deserve it etc…)

    Unfortunately, what you may FEEL doesn’t have very much to do with the way things really are.

    Often, fanfic authors (and music and movie downloaders for that matter) become incredibly defensive about this. They offer up justification after justification as to why it is OK for them to use someone else’s property without their permission.

    It’s all just rationalization.

    What it comes down to is that publishing fanfic is both illegal and morally wrong, unless one secures the permission of the copyright holder. Of course It is tacitly tolerated by publishers, and considered an important part of the fannish community; but it is still wrong.

    I know that many of you don’t FEEL that it is wrong, and insist that it either isn’t or shouldn’t be illegal, but you are just deluding yourselves.

99. cofax,

    But why should I have to sit in the back room? That’s where I am now. If I’m not costing anyone any money and nobody is injured by my actions–and in fact there’s an argument that fan activity drives investment in tv and movie franchises, leading to more income for the producers–why should I have to hide away?

    If your interest in fanfic is purely social and artistic, as has been claimed by others in this thread, then what’s the problem? Don’t think of it as the porno section at the video store then, if that image bothers you. Call it the “Members Only” section instead, or “Reserved for Private Party”. If fanfic is indeed created solely for the enjoyment of the fannish community, then what do you care if anyone outside that community ever sees it?

    Unless of course you really do want to mainstream fanfic, in which case that makes some of the arguments here ring a little hollow.

    And I have to say that there is a real odor of “girl cooties” in a lot of the negative talk about fanfiction: if women write it for fun, it can’t be any good, the same way if women sew or knit for fun it’s not art.

    I’ve never heard that, but then I’ve never really gotten into a discussion on fanfic in this sort of depth before so that may be simply ignorance on my part.

    I suppose you could get into a discussion on whether art has more intrinsic value if it is created purely for art’s sake as opposed to being made for enjoyment, but I’m not qualified to participate in that conversation. I don’t know, and I’d be hard pressed to take a side.

    Now I will admit that I generally prefer male authors over female ones. It’s not a blanket caveat, just an observation on my own reading tastes. I’ve read many books by female writers over the years, and several of them left me feeling “Meh” about them. It could be my own prejudices talking, but often it felt like the characters were standing around talking about their feelings to the point where I just wanted to scream “Will you people just shut up and do something already? Anything! I don’t care!”

    I don’t think that makes me a sexist, though others might argue that point. I just don’t want to plop down $10 for a book I’m not going to enjoy. Like I said, differing tastes. But that in no way means that I believe female writers aren’t the equal of male ones, nor does it mean I feel that they shouldn’t have the same opportunities. My comments on fanfic are based on their content and derivation, not the sex of their authors.

    I realize that you did not point fingers at anyone here. I just thought it was worth commenting on.

100. Meh, I would prefer to stay in the legal backwaters. It’s kinda like the Magician’s Guild in which letting in regulators into what is essentially a self-regulating world would only cause more problems than it would solve.

     Actually, on that note, magicians probably engage in more flagrant misappropriation of ideas than any fanficcer. They even profit off it! But evidently the community as a whole thinks it’s better to let things settle themselves out.

101. I know that many of you don’t FEEL that it is wrong, and insist that it either isn’t or shouldn’t be illegal, but you are just deluding yourselves.

     Chris, thank you for your condescension. I have used up most of my day making what I believe are logical arguments only to be told that this is only what I FEEL and that I’m merely rationalizing. My eyes have been opened.

     Wrong. Illegality and immorality are not the same thing. I freely admit that what I do is illegal. I think the law is wrong with respect to non-commercial fanwork for rational reasons. I think that this is vastly different from illegal downloading of music because of the utilitarian arguments I have laid out in my previous posts.

     And nowhere did I claim that I felt that I had a ‘partial ownership.’ I was very clear that the authors and creators own their work and I own nothing. There’s no dispute about that.

     Intellectual property law is about protecting the incentives of creative types to come up with ideas and develop them and make money off them. My only dispute is the idea that creators have the right to dictate how ideas are used when there is no direct competition or financial harm.

     Chris, you keep saying that fanfic writers are taking control of someone else’s property but you have failed to show how that is the case. Ideas are not like physical property. You cannot own an idea but only the physical manifestation of an idea. To violate someone’s ownership of a physical manifestation of an idea, I would have to make money off it.

     Maybe I’m wrong. That’s fine, but who declared you the sole arbiter of truth here?

102. publishing fanfic is both illegal and morally wrong, unless one secures the permission of the copyright holder.

     Randall’s book “The Wind Done Gone” proves that’s not the case… permission is not legally required if the new work is transformative enough–even if it’s done for financial gain. Even if the copyright holder(s) strongly object to the fanfic.
     (ref: http://www.freedomforum.org/templates/document.asp?documentID=16230 )
     —-
     I’m always amazed at authors who apparently want their readers to admire their works as dolls-on-a-shelf, to be appreciated in toto in their original setting, not to be explored or played with… as if it’s okay to like the book, but not okay to think about how its principles would apply to everday life, nor to think about how its characters resemble people you know (and therefore, how they might react if confronted with characters like *other* people you know), and so on.

     I do wonder if these authors are equally affronted by literary criticism, and if they think that making statements about a scene’s meaning or a plot’s simplicity is as illegal as writing a missing scene between two characters in the book.

103. And to be clear, this is not some need of mine to make myself look like a good, moral person or anything like that. I think illegally downloading music is both legally AND morally wrong, so I do honestly believe that fanfic writing is different.

104. Ed: If fanfic is indeed created solely for the enjoyment of the fannish community, then what do you care if anyone outside that community ever sees it?

     Mostly, we don’t.

     The problem is that, in order to get it to the fannish community, it has to be accessible to other eyes as well. Can’t lock it behind doors that require the Secret Handshake to get in… people who are new to the community (or don’t know it exists) don’t know the Secret Handshake.

     And making it publicly findable–so fans can find each other–has brought fanfic a lot of attention it didn’t have forty years ago (or a hundred, when Lewis Caroll fans wrote alternate-ending stories based on his works), has gotten attention from a lot of people who don’t understand it, but recognize that “some people make money doing that sort of thing! Isn’t that… illegal?” And a swarm of other complexities.

     Most of fanfic-etc. creating fandom would be content to be hidden away in their back rooms… but that’s not the same as being willing to say “yeah, we’re breaking the law” nor “no, this isn’t really creativity.” And public attention has brought both of those claims forward.

105. At any rate, though I may FEEL like I have a stake in, or in part a right to those characters; that feeling is incorrect. It is legally, and morally incorrect. Those characters are the authors original creations, they have the right to do with them what they please; and other than in my own head or on my own private property, I do not.

     Now, all that said, I know I wouldn’t want to control all my readers reactions and responses to what I write (I should note, I only write non-fiction for money. I haven’t sold any fiction, nor do I plan to for the moment). That would be incredibly boring… though I know of some authors who DO want such control, I think that’s a bit immature.

     Legally? Whatever: yes, copyright has extended to give a historically unprecedented degree of control to authors and their assigns. Sue away.

     But morally? So pastiches, tributes, sequels and other derivatives of Arthur Conan Doyle, Ian Flemming, Robert E. Howard, H.P. Lovecraft, Edgar Rice Burroughs, Bram Stoker, Mary Shelley, Mark Twain, William Shakespeare and a hundred others are all immoral?

     Give me a break.

     What a monster Isaac Asimov was to put his imprimatur on wickedness! What a pud Fred Saberhagen is! Those who think L. Sprague DeCamp and August Derleth were merely inadequate in finishing/continuing the works of REH and HPL didn’t know the half of it–they were purveyors of immorality! The gall! Should I go on, or have I made my point?

     You feel ooky about someone using another writer’s character–fine, it seems to be a very popular recent attitude: but calling it “immoral” is just a bit much.

106. I just want to know, is the Scalzi/Wheaton slash protected in some way that we can’t all write it? This org is all about defending slash, right?

107. Elfwreck,

     I’m always amazed at authors who apparently want their readers to admire their works as dolls-on-a-shelf, to be appreciated in toto in their original setting, not to be explored or played with… as if it’s okay to like the book, but not okay to think about how its principles would apply to everday life, nor to think about how its characters resemble people you know (and therefore, how they might react if confronted with characters like *other* people you know), and so on.

     There’s a difference between reflecting on a book’s lessons and ramifications, or discussing a book with someone else who’s read it, and writing brand new stories using the same characters and setting without the author’s knowledge and permission. It may seem like a fine distinction to some in the fanfic community, but it’s not.

108. Ed,
     Writing a story with another author’s characters is one form of commentary. It’s one of the methods we use to teach our children how to understand literature: “So, what do you think happened next? If you had a friend like Shirley, what would you have said to her? How do you think Shirley’s mom felt when she saw the new dress?”

     How can this be a reasonable and sensible tool for teaching children, but a near-criminal activity when done with already-trained writing skills for a mature audience?

109. Let’s talk bedtime stories then. I tell my kids (if I had any) stories starring Harry Potter because that’s who they want to hear about. Maybe I have him go up against Dracula or the Wolfman.

     I doubt many people would call that immoral. But because I put such a story in writing and post for many other people to see, there’s suddenly a fundamental difference? Legally, yes. Morally, give me a break.

     Unless you want to say all fairy tales, folk tales, ballads, and oral epics were the result of sinful peasants stealing characters and settings from their creators.

110. Elfwreck, I almost made that exact comment. When I was in high school, we read The Red Badge of Courage, and our assignment was to write the next chapter.

     To me, it’s sort of the difference between showing and telling — in the anti-fanfic argument, it’s OK to write an essay telling what you think would happen in a given situation, but it’s not OK to write a story showing it.

111. John Scalzi:

     “To be blunt about it, if anyone’s making money off my universes, it’s going to be me, or at the very least, me too.”

     So what if they cut you in on the action? (Either through ad revenue or book sales or whatever.)

112. Elfwreck,

     Writing a story with another author’s characters is one form of commentary. It’s one of the methods we use to teach our children how to understand literature: “So, what do you think happened next? If you had a friend like Shirley, what would you have said to her? How do you think Shirley’s mom felt when she saw the new dress?”

     It may be a form of commentary when it’s in the form of say, satire, but that’s not the example you used. What you’ve illustrated is a discussion of a book, not a new story based on a book.

     This in fact is part of the problem, IMHO. If the fanfic community were to say: “Look, we write fanfic because it’s fun“, most people will shrug their shoulders and go on their merry way. But when people start hanging medals on fanfic and claiming it’s more that it is, my suspicions get aroused. I start wondering if the fannish community is no longer willing to keep fanfic amongst themselves, and instead wants to put it on the bookshelf next to “Othello”. That’s a line I don’t believe should be crossed.

113. As an avid reader of fanfiction, but not a writer of fiction of any sort, I’m finding the differences in attitude regarding the control of characters between me and some of the non-fans here pretty fascinating. (And hey, it seems while I was thinking this post through/writing it out everyone else has focused on similar areas of discussion too. Awesome.)

     I am assuming most published writers want an audience because they want others to ‘meet’ their characters and ‘visit’ their world, they want other people to have thoughts and feelings on their work, yes? (Possibly some writers are only selling their work for the money, and would actually prefer to keep their creations to themselves, but I’m going to assume that if that group exists they are the minority). Now the problem some of you seem to have with fanfiction is that it changes an author’s characters without their permission, but inherent in showing your characters to an audience is the audience seeing and having an impression of your characters, which may not match up with your intention (there are inevitably going to be changes in the character in their journey from the author’s head, into the reader’s head). And, yes, if I have read fanfiction of your work prior to reading your work, it may affect my perception, but likewise if I have met someone who shares some traits in common with one of your characters, it may affect my perception, but no one would complain about the fact their audience has life experiences outside of the author’s work.

     And you might argue that writing fiction about an author’s characters is much more strongly imposing on them than just having your own slant on the character’s thoughts, feelings and motivations, but none of you seem to have a problem with the idea of me daydreaming about what happens to a character after the end of the book. And no one seems to have a problem with me discussing this daydream with a friend either, so I guess I’m just failing to see the distinction between sharing the day dream with one person offline and sharing the daydream with a group of people online. Why is stuff okay in my head, but not okay out of it? What is it about transferring alternative interpretations from my head to someone else’s head that makes such a huge difference?

     It comes across a little like you think by distributing fanfiction online, a fanfic writer is fundamentally skewing the perceptions of their audience, and in the process, destroying the original author’s ‘true’ characters. But these people will all have had different perceptions from the ‘true’ perception anyway, and plus, if they don’t already have an interpretation of the character that is at least somewhat similar to the fanfiction writer’s, they are less likely to be drawn to that fanwriter’s work (I certainly don’t enjoy fanfiction in which the characters behave in ways I can’t believe they would. I read fanfiction about characters I love – if the fanfiction features characters behaving entirely different from my personal interpretation of the character, why would I want to read the fanfiction? If the character is not recognisable to me I may as well be reading original fiction). So it’s probably not altering anyone’s perceptions *hugely*, and even if it was, who says a reader can have only one interpretation of a character? I can read fanfic in which a fanwriter takes a character in one direction, and follow it by reading a piece of fanfiction in which the character is taken in an entirely different direction, and still enjoy and ‘believe’ these two pieces of fiction equally. Fanfiction doesn’t *replace* source material to me, I enjoy it in *addition* to the source. I can love the character as I see them in the original work, and through the lens of another fan’s interpretation, and that second (third, fourth…) interpretation doesn’t necessarily change the first. (Although I do think if you read a wide variety of interpretations it can help you form a clearer picture of what from your original interpretation was actually in the source, and what it was that you added to the character yourself when you formed your first impression).

114. To help put this into context, fan fiction plays a cultural role that is long standing and will be hard to squelch, minimize or legislate out of existence. All the Internet has done is push this culture into the open.

     To those who argue that fan fiction is part of a lesser culture (aka lesser quality) and does not deserve protection and is a threat to ‘legitimate writers’ and corporations by cutting into the profits, I point to Lawrence Lessig’s presentations on why corporations need to remodel their business methods. Why? Because there are two cultures living on the Internet. The first is what Lessig calls the “Read Only’ – the passive consumers who are marketed to and whose interactions with content and culture is closely controlled to maximize profits. The second culture is the ‘Read Write’ culture – a more participatory culture that remixes and borrows and reshapes and shares – most often without any monetary gain. In fact, most blogging fits squarely within the Read Write culture (writers, writing daily. without getting paid. for everyone to see!!!!) Much of the battle over intellectual property and Internet access rights has been the result of wrestling with and acting against the Read Write culture.

     OTW seems to be arguing in favor of of legitimizing this participatory fannish culture or at least recognizing that it exists and deserves some protections. But it is not necessary to legitimize fandom – because no matter how many writers complain about crappy fan fic and no matter how many corporations sue their fans for sharing their enthusiasm over TV shows and movies and music and no matter how many companies install crippling hardware and software on their content, the Read Write culture is here to stay.

     The smart businesses will be the ones who find a way to make Read Write work for them. And groups like the OTW are needed so that these businesses have a shot of finding their way out of the proverbial paperbag. (not that I think this is the OTW’s focus – but I am wearing my corporate hat for the purposes of this post).

     Plagarism Today has an interesting post along with a link to Lawrence Lessig’s video to Google employees about the Read Write culture here
     http://www.plagiarismtoday.com/2007/12/13/lawrence-lessigs-presentation-at-google/

115. Jemaleddin:

     “So what if they cut you in on the action? (Either through ad revenue or book sales or whatever.)”

     Then I might think about it, although at this point I don’t suspect very seriously. But, for example, if at some point I have no interest in continuing on the Old Man’s War universe, but Tor does, I might allow other works in the universe in exchange for licensing fees and a cut of the royalties.

     Alternately, we might choose to do a short story anthology set in the OMW universe, with various authors contributing.

     However, the point here is that the the acceptance or refusal choice is mine.

116. Ed,
     What you’ve illustrated is a discussion of a book, not a new story based on a book.

     Depends on the assignment. Sometimes it’s “what do you think she thought?” and sometimes it’s “write what happens next” or “create your own set of town rules, like the ones in the book, and write a story about living under those laws.”

     Sometimes it’s not “make a story;” it’s “draw a map of your town.” Fanworks aren’t limited to storytelling.

     Children learning literary analysis get very limited assignments. Adults learning to explore literary ideas get more expansive ones–sometimes it’s “re-write A Christmas Carol in a modern setting.” We’ve got countless movies on that theme… are they morally the same as theft?

117. Elfwreck,

     Children learning literary analysis get very limited assignments. Adults learning to explore literary ideas get more expansive ones–sometimes it’s “re-write A Christmas Carol in a modern setting.” We’ve got countless movies on that theme… are they morally the same as theft?

     Well, let’s take “Christmas Carol” for an example then, and ignore for the moment it’s over a century old and therefore doesn’t fall under the copywrite laws.

     Compare it with the movie “Scrooged”, with Bill Murray. I loved that movie, thought it was absolutely hilarious. I could go on and on about all the changes that were made from the source material, but the plot and themes are still there, recognizable. It’s been updated for a modern audience and turned into a comedy, but Dicken’s original tale still comes shining through.

     Now if instead at the end Scrooge says “Screw you Jacob Marley, I don’t give a crap if Tiny Tim dies or not,” then the story has been fundamentally altered. The same also holds true if the Ghosts of Past, Present, and Future all rip off their cloaks and start going at it like a bunch of crazed bunnies.

     Therein lies the difference between an homage and fanfic, legalities aside. One honors the source, the other doesn’t.

118. Now if instead at the end Scrooge says “Screw you Jacob Marley, I don’t give a crap if Tiny Tim dies or not,” then the story has been fundamentally altered.

     See, I think it would be interesting to explore the possibility of the ghosts not getting through to Scrooge.

     In fact, now I kind of want to read that story.

119. Chris [98] said: At any rate, though I may FEEL like I have a stake in, or in part a right to those characters; that feeling is incorrect. It is legally, and morally incorrect. Those characters are the authors original creations, they have the right to do with them what they please; and other than in my own head or on my own private property, I do not.

     Chris, I think you really missed the central point of my argument, and I find it unsettling how you make moral judgments and conflate legal and moral as if the two had not been miles apart in many times and places. Moreover, as several people have pointed out throughout this thread, what could possibly be legal copyright violation changes depending on copyright laws, which have changed immensely over the last decades. [For a great overview of some of the events surrounding and effects caused by changing copyrights, see Lessig’s Free Culture, for example.]

     So, it would be nice if we could avoid conflating the two and focus on your claim that writing about someone else’s published works is immoral. Now, I’m not sure how something immoral suddenly becomes moral with expiration of copyright (or vice versa with extension of copyrights or, even worse, the use of trademark law to circumvent copyright law), but even if we let that stand: you have yet to answer my question about non fictional responses to creative works.

     How is my close interpretation of Clarissa Dalloway different from a writer imagining what happened during the mirror scene that I spend half an essay analyzing? Or maybe Woolf’s out of copyright–The Hours certainly might suggest that or maybe Cunningham is one of those immoral writers who has no creativity and needs to borrow other people’s characters (and their lives to boot!).

     So, the presentation may be different, but the thought processes and tools are quite similar, whether I do a queer reading of Nick’s relationship with Gatsby or write Nick/Gatsby slash. In both I read the text closely and aggressively against the grain. Call it resistant reading or reader response criticism, I’m not sure your proprietary attitude over one’s characters is justified in either case–morally or legally.

     And of course it hurts. Just like every bad review hurts, just like every dismissal or misreading of creative or nonfiction texts hurts. But putting your work out there (and, in the cases we’re talking about, getting actual money for it!) means you have to part a ways with those characters. You don’t get to walk behind your books telling readers what everything means, and you don’t get to tell readers how to play with your characters when they borrow them for their own imaginative play.

     So, if you agree with me thus far that thinking about the characters cannot be prevented, what about two fans talking in private? In chat? In group chat. At what point does it move into immoral territory? In my flocked LJ? On a private mailing list? When it’s not googleable? At what point do my personal yet shared reader responses and fantasies cross into *immoral* territory?

     Apparently when you can see it and the fic writer is unlucky enough to fall in love with a copyrighted work? Those are not good enough criteria to suddenly move folklore into immorality…

120. Ed,

     I would like to point out that there are plenty of fanfic that would be indistinguishable from homages under your definition. They’re the gap-fillers that try to reconcile inconsistencies or give us an idea of what happened when a character wasn’t on stage at particular moments in the plot. I suppose you’re okay with those.

     Stories that try to imagine what happens after the end of a book or before the beginning shouldn’t be a problem then because no fundamental themes or whatever have been changed. The story is based directly on the source.

     Your problem then would be with stories that change what the original story was about. I would call this alternative universe fanfiction. What if Sherlock Holmes was a woman, for example. I’m not sure I see what the problem is here. Alternative history science fiction deviates from the ‘source material’ of reality. Alternative universe fanfiction deviates from the ‘reality’ of the original book or film.

     Why is altering the reality of a fictional world more perverse than altering the reality of our real world? They’re both just mental exercises in ‘What If?’

121. (“Doesn’t fall under copyright” has no connection to its moral acceptability. I deliberately picked an example outside of the range of legal hassles.)

     “Scrooged” follows the original plotline, updated to a modern setting.
     “Blackadder’s Christmas Carol” has a twist–a nice, generous man gets some visions, proving to him that what he needs to do is be greedy, vicious and cold-hearted.

     If “South Park” ever does a “Christmas Carol” parody… you can bet that Eric Cartman will not become a generous, sweet-natured codger by the end of it.

     Not all homages imitate the original in tone, style and message. Sometimes it’s only one aspect of the original that they are impressed by; sometimes, they show respect by giving a counterpoint.

122. >See, I think it would be interesting to explore the possibility of the ghosts not getting through to Scrooge.

     In fact, now I kind of want to read that story.<

     I want to read the story where it’s only by combining their powers through a dirty threesome that the ghosts can get through to Scrooge. :-D

123. Jessie:

     The ghosts of Christmas coming?

124. Vincent,

     Stories that try to imagine what happens after the end of a book or before the beginning shouldn’t be a problem then because no fundamental themes or whatever have been changed. The story is based directly on the source.

     Dangerous territory. What happens when the author comes out with a prequel or sequel? Where do the fanfic stories stand then?

     Your problem then would be with stories that change what the original story was about. I would call this alternative universe fanfiction. What if Sherlock Holmes was a woman, for example. I’m not sure I see what the problem is here. Alternative history science fiction deviates from the ’source material’ of reality. Alternative universe fanfiction deviates from the ‘reality’ of the original book or film.

     I don’t have a problem with alternative universes per se, for example I enjoyed “Guns of the South”. I’m just not ready for “Macbeth and Juliet”.

     Why is altering the reality of a fictional world more perverse than altering the reality of our real world? They’re both just mental exercises in ‘What If?’

     Because nobody “owns” reality. Hell, nobody seems able to define it. But somebody does in fact own works of fiction i.e., the original author.

     Sigh. A big part of my problem with fanfic is slash. I’m not going to tell anyone who they should be sleeping with, or even fantasizing about, but Kirk/Spock is just freakin’ creepy. Call it a personality quirk of mine. If the fannish community could keep the slash-pile locked up in the basement somewhere, I imagine a lot of objections would disappear. But that ain’t gonna happen.

     Lets face it: any community will be known to the rest of the world by it’s most outre members, no matter how small and unrepresentative they may be. Do you know how many people I know that judge the gay community solely on San Francisco’s Gay Pride parades?

125. John:

     Hee! I’ll look for it in your next anthology under the title, “Bah, Handjob.”

126. Ed:

     >I’m not going to tell anyone who they should be sleeping with, or even fantasizing about, but Kirk/Spock is just freakin’ creepy.<
     Don’t you see the contradiction in that sentence?

127. John:

     Hee! I’ll look for it in your next anthology under the title, “Bah, Handjob.”

     You know, I’m torn between demanding full recognition for coming up with the idea, and wishing to God I never mentioned it.

     Yikes.

128. Here’s the thing, it becomes a problem for the living fiction writer owning the IP for several reasons.

     I’m a huge fan of Robert Jordan. I have a theory of how I feel the series should end. If I understand those defending FanFic, I should be able to write this and share it with people on my blog.
     Realistically, me writing it out in narrative form should be no different than me discussing how I think it should end in general terms. But it is. What if I speculate on some off stage events in narrative? same thing.

     If I had written it and any of my scenes mirrored what is eventually published. Now I could propose a lawsuit against Jordan’s estate, in theory. Wouldn’t that be stupid?

     Dean Wesley Smith, the editor of the former series of Star Trek: Strange New Worlds anthologies, which were basically legal fanfic, once shared a story of a lawsuit brought against them by a writer who claimed that his story submission was taken for an episode in the next season.

     Fortunately, Dean hadn’t even opened any of the submissions and the case was easily closed. The lawyer who called him was greatly relieved, as you can imagine.

     If you view it from this perspective, you can understand why fanfic should remain illegal, it takes out the possibility of lawsuits to the creative owner. Imagine if Rowling had to set a team of lawyers to make sure she wasn’t stealing the ending of HP, or Neville’s story if she decides to write that in the future.

129. Uhhh, strawmen there folks.I never said that writing ABOUT an authors characters was wrong, nor did I conflate moral and legal.

     Often moral and legal are radically different; and even in this case copyright law goes far beyond what is moral.

     What is immoral is to use someone elses intellectual property without their permission; except in those instances recognized as fair use, where their permission is implied in the act of publishing.

     The problem here is not writing about characters or settings; nor is influence, pastiche, parody, or satire a problem. All are long accepted fair use, intended as commentary, or as referential works.

     The problem is when you stop commenting and referring, and YOU get in the drivers seat of the original character, in the original context of the character; rather than as an intentional derivative, but different work (as parody is for example)..

     Now, as to the moral justification for taking control of someone elses property, by denying that ideas are property…

     Oh really?

     Can you sell an idea? Can you buy it? Can you legally protect it?

     Yes, you can.

     Those are the purposes of trademark, copyright, and patents.

     Again, as I said above; if your justification is “it’s illegal but it shouldn’t be, because information can’t be property” fine; but you need to argue THAT point, not whether it’s justified that you are using someone elses property.

     If you don’t think it’s property, then you are operating under a different first principle than I am… or than most published authors, and almost every legal body and government.

     Also, how can you not see that Fanfic, and music downloading are, though not exactly the same, strongly similar? They are both the use of intellectual property without permission.

     Perhaps we should take it a step further:

     If you took someones copyrighted song, downloaded it, digitally processed the lyrics into something different, but kept the same artists name on the song, and then re-released it into the world; that would be the musical equivalent of fanfic (this is done a fair bit by the way. There are dedicated hobbyist groups for this much as with fanfic). Would you feel that was an acceptable use of the original artists work? You are putting your words into their mouth, using their image, their reputation, etc…

     I don’t understand how anyone can find that morally acceptable.

     Now, as to the “where do we draw the line” question; of course discussions, chat room postings, etc… are perfectly fine. Further, If you want to write stories with someone elses characters, and keep them all to yourselves, fine. Sharing those stories though, that’s where the problem arises, because even if there is no harm, you are introducing a competing good into the marketplace of ideas. Unless you get permission from the copyright holder, you have no right to do that.

     You can’t take a patented invention, copy it, and then share it with the world either.

     You can’t take a trademarked character, modify it, and then give away t-shirts with the character printed on it (unless it is in a manner consistent with protected fair use, such as parody, review, or commentary).

     All of these are in principle equivalent.

130. Dangerous territory. What happens when the author comes out with a prequel or sequel? Where do the fanfic stories stand then?

     They stand where they’ve always stood. They’re alternatives to the original work, not replacements. At the heart of it, I’m an imitator, an Elvis impersonator. My work will never stand on the bookshelf next to Othello because that’s not what I’m obtaining for. I don’t want equality because we’re inherently not equal.

     Original writing involves world creation while fan writing mostly doesn’t unless you’re talking about truly transformative work which we’re not.

     Do news blogs want to be held in the same regard as newspapers? Perhaps some do but I think that most recognize that different niches are being met.

     Lets face it: any community will be known to the rest of the world by it’s most outre members, no matter how small and unrepresentative they may be.

     That’s true, but so what? That’s like saying free speech is a bad idea because there’s so much porn out there. If you look at the doujinshi phenomenon in Japan (fan manga that’s actually sold at conventions!), you’ll see that U.S. fan writers are much more constrained by comparison.

131. Oh, I missed a point I wanted to respond to.

     The question was how does it suddenly become moral when the work is no longer under copyright?

     Simple; you now have the authors permission. By publishing, he agreed to have exclusive copyright to his original works of authorship for a fixed and limited period of time. Once that time runs out, he agrees that his work is now open for the public to do with as they see fit.

     This is also why the various fair uses of copyrighted materials are morally acceptable. By publishing, the author agrees to the various fair use exceptions.

     If the author wanted to protect his work from ever being messed with in any way ever, he shouldn’t have published it.

     Ahhh the wonders of implied consent.

132. What is immoral is to use someone elses intellectual property without their permission; except in those instances recognized as fair use, where their permission is implied in the act of publishing.

     I don’t agree with that. As per my RJ example in the previous post, I don’t see it as a problem if I were to write the story. The immoral thing would be to feel ownership of what I had written. IE: bring a lawsuit against IP holder or attempt to make money off of it.

133. Vincent,

     See, that’s my point. You have every right (both legal and moral) to create an alternative to an authors work using your own characters. You DON’T have the right to create an alternative using theirs; or rather you don’t have the right to create it and then release it to the world.

     If you do, you have now created a competing good; which may devalue the original authors works. Even if in reality it does not, it may, and you have to get permission for that sort of thing.

134. Jessie,

     Don’t you see the contradiction in that sentence?

     No, I don’t. I’m not telling you that you can’t fantasize about Kirk/Spock (or whatever), but the begin point of this thread was the OTW mission statement of giving fanfic (and by extension, the fanfic community) some sort of recognition. What kind exactly remains to be seen.

     When you have canon characters doinking each other, I don’t want to see it. Since I’m not hanging out in slash sites it’s not likely I’ll run across it, and if for some reason I do then I’ll hit the Back button. Repeatedly. But when there’s a sanctioned body of work that quite clearly shows that neither Kirk nor Spock are gay, and they’re just good friends, you gotta wonder why the stuff is so popular.

     Let’s call it what it is. Fetishism. No different than Furries. And it should be treated as such.

135. Patrick,

     In the act of writing for characters that are anothers original works of authorship; you are asserting control over them without permission.

     You are depriving the original author of their right to control how their characters are presented and portrayed.

     Even if you attempt to assert no rights over the derivative work you have created, you are diminishing the original authors rights.

136. Chris, are you saying a writer could read a book like Starship Troopers and then write a book with vague similarities and then get paid to publish it? Is that legal? Dear god, I can’t imagine someone would do such a thing…

137. Chris, I don’t think you and I are disagreeing on the legal front of the authors rights. I disagree on the immorality of it. I view it in the same way I would if I were writing a story that included a Cola company based out of Atlanta. As long as I say nice things or essentially don’t say bad things and make the company a nefarious villain hell bent on mind controlling the world, I can probably call it Coke. Though that still wouldn’t make me immune from lawsuits.

138. uhh, meaning it isn’t immoral to have a cola company named Coke in my story, but that doesn’t mean I have a right to.

139. Patrick, what you’resaying is something like

     “Sure, it’s kinda wrong legally, but as long as it isn’t hurting anybody it’s morally OK” ?

     By this do you believe that there is a legal right being enforce that is not also a moral right? Don’t authors have the moral rights to control their own works?

140. Ed,

     What I am hearing from you is a contradiction. You have a personal objection to slash, which is a big part of why you are concerned about whatever legitimacy or recognition that may or may not be conferred by the OTW. Not that you want to police anyone’s sexuality!

     What you call “fetishism”, I like to call “reading”, per Kristina Busse’s excellent comments above (number 58): the power of literary texts is that it purposefully does not intend to do so, that it has enough openings and gaps for readers to play in the interstices and margins of the text.

141. Chris, legally it is wrong, by my limited understanding of the law. I’m not saying kinda, though I guess the IANAL qualifications makes it a kinda.

     Morals are a little more fluid. For example say Bob likes marijuana. Ok, it’s illegal for Bob to have and smoke it. I wouldn’t say it is immoral just because it is illegal. I would say it is immoral for him to give it to his 5 year old niece. But that’s just my morals, your morals may vary.

142. Jessie,

     I don’t care if someone is gay, straight, bi, or anything else. I don’t care if they’re into S&M, B&D, feathers, candle wax, or whatever. And believe it or not I don’t have a problem with erotica, no matter what stripe, even though it’s not my thing.

     But if slash is in fact erotica and not fetishism, answer me one question: why is it specifically about Fantasy/SF characters as opposed to just regular people?

     Again, a small point, but an important one.

143. You’ve never read Chandler/Joey slash?

     Me neither.

144. Ed,

     I don’t really understand your point about regular people, but it seems to me that you don’t have much familiarity with slash or fanfiction communities as a whole. Slash is about relationships between same-sex characters. Erotica is an important, but not sufficient, part of that. Furthermore, not all slash — or fanfiction, or other fan work–is created around texts that fall into the SF/Fantasy genre; House MD is a big fandom at the moment, for example.

145. Patrick,

     Again, I am not saying that morality is derived from legality.

     Moral and legal are neither equivalent nor transitive.

     The moral right of an author to control their own original work of authorship is inherent to the act of creation.

146. Chris,

     How is it a competing good? They’re not competing for money. Maybe they’re competing for attention? But you can only get attention if people know what you’re referencing. It’s like trying to watch the Daily Show without reading the news first. It doesn’t make sense without the context. So what is being competed for? The people who read fanfic are those who’ve read the original work in the first place.

     As for diminishing the original author’s rights… this could take a while. First, you say that ideas are property. My Property professor would disagree with you. Ideas are non-rivalrous in nature. My use of your idea does not deprive you of the right to possess, use, sell, or destroy your property which is why theft is a bad analogy because you’re not denied access to your original idea. What you have a right to with your copyright is the marketability of your idea in its particular form (e.g. trademarks, patents, etc.).

     The difference between copyright and trademark, according to Wikipedia, is:

     Exclusive rights are generally divided into two categories: those that grant exclusive rights only on copying/reproduction of the item or act protected (e.g. copyright) and those that grant a right to prevent others from doing something. The difference between these is that a copyright would prevent someone from copying the material form of expression of an idea, but could not stop them from expressing the same idea in a different form, nor from using the same form of expression if they had no knowledge of the original held by the copyright holder. Patents and trade marks on the other hand, can be used to prevent that second person from making the same design even if they had never heard of or seen the claimed “property”.

     End of quote. My point is that authors certainly have a moral right to prevent the exploitation of their labor but not the right to exercise creative control over hobbyists. They can control their own works, but they’re not Coca-Cola. They can’t stop someone else from using their ‘brand’ especially when there’s no financial competition going on.

147. Or in other words, outside of the economic marketplace context there is no such thing as intellectual property. That’s why I don’t have a problem with your digital remastering of a song example. Ideas are not a finite resource that can be analogized to real property rights that people say are inherent rights.

     I think we’re going to have to disagree, Chris. I think you’re right that our first principles on what the nature of intellectual property is differ too much. We’re just talking past each other.

148. The moral right of an author to control their own original work of authorship is inherent to the act of creation.

     I disagree for the context we are using in fanfic. Once it is published, you have legal rights, not moral rights.

     By saying it is a ‘moral right’ then I would interpret that to mean all the times I played with star wars figures(growing up) I was being immoral, since Lucas was not controlling the actions of the characters. ’cause Vader won a lot when I was growing up….

149. “Once it is published” by this, I mean the original work.

150. Did someone mention Othello? You mean that English guy’s ripoff of the 1565 story by Cinthio?

     See, that’s my issue. I don’t write fanfic. I don’t read fanfic. But the anti-fanfic crowd here seems to have what I would consider a constipated view of the significance of derivative works. As much as a derivative work might offend your sensibilities, it’s completely possible it might be an improvement over the original, and unlikely (given the current copyright regime) that it could see mass-publication.

     In a healthy public domain setting, artistic works are allowed to compete–if Shakespeare’s version is better than Cinthio’s, Shakespeare’s becomes the enduring version. Of course, this might be bad for Cinthio: we feel sorry for Cinthio, and we should. So let’s give Cinthio a limited legal right to limit piracy of his book so that he at least gets royalties from it before Shakespeare’s version sends it into obscurity.

     * * *

     The idea that the morality of a derivative work depends on whether the author is dead or not is frankly silly. Something that insults you to your face is perfectly okay when it’s behind your back? As long as you don’t know about it, it’s fair game?

151. My point is that authors certainly have a moral right to prevent the exploitation of their labor but not the right to exercise creative control over hobbyists.

     Until the ‘hobbyist’ becomes a plaintiff…

152. I have copied a large collection of quotes here; please bear with me.

     Ed Bartlett: I’m not putting down struggling writers, hell, I’m one myself.

     We’re not struggling; we’re flourishing, as evinced by the existence of the OTW.

     Tor: How about instead, working with them to take what they’ve learned in fanfic, and helping them to become freelance/published authors, using their own IP.

     Because most fanfiction writers don’t want to become freelance/published authors. The assumption that fanfiction is a “training ground” for professional (read: paid) authors is, frankly, insulting. Why is something only legitimate if one is paid for doing it?

     Elfwreck: It was a reply to Adela’s comment mentioning “If the average Joe can recognize it on first glance it’s not transformative. The more famous and well know something is the harder it is to truly transform it.”

     Wicked, from The Wizard of Oz. March, from Little Women. The Wind Done Gone, from Gone With the Wind. Bride and Prejudice, from… well, you know. And all of these are professional and published, by the way. They are fanfiction, plain and simple–they are transformative versions of extremely well-known works.

     Chris Byrne: Also, how can you not see that Fanfic, and music downloading are, though not exactly the same, strongly similar? They are both the use of intellectual property without permission.

     I can’t see it because downloading music (I assume you mean illegally) keeps the music industry from getting my money. Fanfiction doesn’t keep anyone from getting my money.

     Ed Bartlett: If it’s compartmentalized, I doubt many people would object.

     Yes, the back of the bus is quite comfortable. But for whom?

     A big part of my problem with fanfic is slash. I’m not going to tell anyone who they should be sleeping with, or even fantasizing about, but Kirk/Spock is just freakin’ creepy. Call it a personality quirk of mine. If the fannish community could keep the slash-pile locked up in the basement somewhere, I imagine a lot of objections would disappear. But that ain’t gonna happen.

     Yes, the closet is quite comfortable. But for whom?

     Ed Bartlett: But when there’s a sanctioned body of work that quite clearly shows that neither Kirk nor Spock are gay, and they’re just good friends, you gotta wonder why the stuff is so popular. Let’s call it what it is. Fetishism. No different than Furries. And it should be treated as such.

     First of all, and not granting your argument that it is fetishism (which I don’t), what exactly is wrong with fetishism? What do you care if someone else has a fetish?

     I do grant your statement that there is a sanctioned body of work that neither Kirk nor Spock are gay. So? Really, I mean that sincerely. So? And why do you “have to wonder why the stuff is so popular”? Could it be because that particular transformation of the work strikes a chord with many, many people? And if that’s true, why do you care? I think the answer lies here:

     “Kirk/Spock is just freakin’ creepy. Call it a personality quirk of mine.”

     Are you saying that because lots of people enjoying the idea of Kirk and Spock being lovers makes you feel icky, it shouldn’t exist, on the internet or anywhere else? That’s not a personality quirk; that’s homophobia. Feel free to correct me if I’m wrong. Because those statements really have nothing to do with whether or not fanfiction qua fanfiction should be seen as a legitimate art form.

153. An Eric – Plots are not copyrighted. Derivative is different than transformative, too. “Romeo, Juliette, and Bob” isn’t derivative, it’s transformative. “Romo and Julie” is derivative and probably legal even on current works.

154. Also:

     Chris Byrne: publishing fanfic is both illegal and morally wrong

     You understand that morals are not universal concepts, but rather personal beliefs, right? Your morals are not mine; please don’t attempt to inflict them on me.

155. There are certain moral precepts which are universal. For example, it is never moral to deprive another of their property without just cause.

     What constitutes just cause could be debatable, but the precept is not.

156. It also depends on your definition of property (see post 146-47), but I’m tired of this.

     In a rather ironic turn of events, all this arguing has prevented me from getting any fanfic writing done today, so I’ll have to do my best to make the most of the rest of my night.

157. But if slash is in fact erotica and not fetishism, answer me one question: why is it specifically about Fantasy/SF characters as opposed to just regular people?

     I see you haven’t been reading the High School Musical 2 slash. (Neither have I, for that matter; I’m avoiding the original no matter how much my kid likes it, and I avoid slash from canon I don’t know. But it came up in a discussion about racism in fanfic.) How about Gilmore Girls femslash? Bible slash–the almost-canon David/Jonathan stuff, the edgy Jesus/Judas stories, or the fantasy-ish Lucifer/Gabriel stories?

     How about RPF: Real Person Fic? Orlando Bloom/Johnny Depp stories, anyone? (There are plenty. Those are on more solid legal ground than most fanfic, since Falwell’s case against Hustler was found against him.)

     Slash isn’t just written about fantastic characters in fantastic settings.

158. >Sigh. A big part of my problem with fanfic is slash. <

     Thank you! Time called at… comment 124.

     Yes, it really took 124 comments for anyone to stop dancing around the issue and admit that it’s the hot gay sexin’ that’s making you uncomfortable. Congratulations.

     Now get over it.

159. Sorry; that was me. Forgot I’d changed computers.

     Followup comment:
     No different than Furries. And it should be treated as such.

     Erm…. furries are legal. There’s no challenge to a person’s right to dress up in weird animal costumes. And seek out other people in weird animal costumes, should that be their desire, and perform various acts of depravity together, should the two of them both desire.

     Nobody’s saying “explicit slash has the right to be an in-your-face public presentation; my naked Kirk/Spock image manip should be the poster for next WorldCon.” They’re just saying “it’s not illegal to create slash. Nor any other fanfic.”

     Where and how it can be shared is a different issue.

160. Chris Byrne: There are certain moral precepts which are universal. For example, it is never moral to deprive another of their property without just cause.

     Wrong. It might be arguable that it is not ethical, but you cannot argue that it is moral. Morals are not, and never have been, universal. Some people consider homosexuality immoral. Some don’t. Some people consider the death penalty immoral. Some don’t. Morals are personal.

     Ed Bartlett: But if slash is in fact erotica and not fetishism, answer me one question: why is it specifically about Fantasy/SF characters as opposed to just regular people?

     There is Sports Night slash, and Homicide: Life on the Streets slash, and I Spy slash, Starsky and Hutch, and West Wing slash, and due South slash, and Ocean’s Eleven slash, Gone With the Wind slash… I could go on, but I believe I’ve made my point, which is this: it’s best not to speak in absolutes when you don’t know your subject well.

161. tzikeh,

     I can understand why you think I’m a homophobe, but I’m not. I’m not going to trot out the old “I have lots of gay friends” bit. I do, but that’s immaterial.

     As I said, I don’t have a problem with erotica; gay, straight, or otherwise. I’m not into it, but I won’t tell anyone they can’t read it. If they’re under 18 that does bring up certain legality issues, but I’m not the friggin’ book police. Not my concern.

     I grew up with SF. I’ve been reading it and watching it for as long as I can remember, and I’ve grown very fond of many characters over the years. Yes, this includes Kirk and Spock, and others. I won’t say I fell in love with them, not in the context of this conversation, but I do think of them as old friends. So I suppose part of my problem with slash is it feels like my friends are being betrayed.

     In fact (showing my inner geek here), it reminds me of the ST:TOS episode “Plato’s Stepchildren”; specifically the scene where Kirk, Spock, Uhura, and Nurse Chapel are forced to make out in order to amuse the Platonians. You can tell none of them enjoy being played like puppets, but they’re helpless. It’s rape, if not in deed then in intent.

     (Yes, I know it was the first inter-racial kiss on TV, and I give kudos to Gene Roddenberry for having the courage to do it. The guy was a visionary. But that’s not germane to this conversation.)

     The fannish communities did not create, nor do they own, the characters involved in slash. Which is why it doesn’t feel like erotica to me, but forced buggery.

     Which brings me to the question, “Why?”

     I think it’s because there’s a dearth of gay characters in media. There’s the occasional Will & Grace, but other than that they’re relegated (if they appear at all) to the status of whacky neighbor. Not too many rolemodels to be found.

     So why not simply create new and original rolemodels, instead of a cut and paste? That’s what I want to know.

     That’s as good as I can explain it. Maybe I’m not being fair. Maybe I am a bigot. I hope not, but I’ve been wrong before. These characters don’t belong to you, they belong to us all. And I simply don’t like people messing with my friends.

     There, I’ve said my piece. Lambast me if you must.

162. Patrick M.:

     While I don’t practice property law and it’s been a very long time since law school, as far as I know “transformative works” would be included in the legal definition of “derivative works.”

     (IAAL-BNAIPL? I am a lawyer-but not an IP lawyer? Lousy acronym. Anyway, I certainly could be wrong.)

     Any original idea that’s fixed in a medium of expression–e.g. written down on paper–can be copyrighted. You may mean that a “plot” can’t be copyrighted in the sense that you can’t get a monopoly about “man vs. nature” stories or “stories in which a man is haunted by his father’s ghost.”

     However, for instance, closely following another author’s story with your own almost-identical story will land you in court. (Consider, for instance, Harlan Ellison’s lawsuit against James Cameron in the ’80s, which stemmed from the fact that Cameron closely followed the plots of the Ellison-penned Outer Limits episodes “Soldier” and “Demon With A Glass Hand”; the suit was settled out of court, with Ellison receiving money and a credit in subsequent prints of the movie.) Shakespeare’s theft of the plots of Othello, Romeo And Juliet, Hamlet et al. would absolutely have landed him in court if there had been any such thing as international copyright law in the 16th century, and he would have lost.

163. Ed,

     Are you really saying that writing erotic fiction about fiction characters is like rape? Really? Really??????

164. For all the reason that get thrown around for why people create fanfic no one has given a damn good reason why the need to distribute it and show it to everyone.
     What goes on in your own head fine but it seems too much to me like ridding on the coattails of someone else’s hard work when you want the whole world to look at it.

     Fanfic is like rushing the stage to grab the actors for your own production before the play is finished.

165. Ed and Adela,

     Wikipedia is your friend. Seriously. Please try and learn a bit about the communities you are trashing before you trash them.

     Adela,
     I don’t know if you’ve bothered to read the preceding hundred and fifty or so comments but the point has been made over and over that fanfiction is shared in a community of like-minded people who get a pleasure out of writing and reading and talking together. You may not understand that pleasure. No-one is forcing you to join. By your analogy, no-one could ever produce any creative text unless it was completely original. It has been repeatedly argued above that this idea is total bollocks.

166. Adela:

     I’m only speculating, but I’d guess people want to share their fanfic for the same reasons people like sharing other things they make–we’re social creatures. I imagine their are people who write fanfic who are shy about it, and others who want to be part of a community of like-minded individuals.

     There seems to be a strong presumption from some that adapting an earlier work is the equivalent of piracy–that is, reproducing a facsimile of a work and distributing it. To cite a bad example from above, it’s as if people are equating Peter Schilling writing a Bowie-inspired song called “Major Tom” with Schilling ripping “Space Oddity” to MP3 and uploading it to Kazaa. Or writing an unlicensed sequel to Star Trek VI with making 100 copies of the Star Trek VI DVD and selling it at the flea market. I fail to see the similarities. Moreover, I can cite instances in which the only difference between “fanfic” and pastiche or homage is the copyright status of the work, which suggests a legal not a moral difference: i.e. the sole reason Chabon’s The Final Solution or Meyer’s The Seven Per-Cent Solution are literary explorations and not fanfic infringements is that the Arthur Conan Doyle estate’s copyrights have expired. I haven’t seen any merit in the other distinctions offered here.

167. I’m not going to get into the “why slash” argument. Quite frankly, someone dredges it up every six months or so, so those of us who’ve been here a while just roll our eyes and move on. The short answer is, “why not?”

     Homophobia isn’t exactly an “either/or” construct. Straight privilege exists just the same as white privilege, and having gay friends is not the same as being okay with your son marrying a man is not the same as accepting that people view characters that you love as gay.

     >These characters don’t belong to you, they belong to us all.<

     And if I turn the character you love into an angry clown, an AI created by the government, or a guy exactly like the one you know, except secretly in the closet, it doesn’t affect your relationship to the character. It doesn’t hurt the character at *all,* and next week the angry clown is raising six kids in the far north and the AI is secretly a fairy (no, literally this time) in human form.

     (Bonus points to everyone who can identify all four fics. *g*)

     I’m an avid slasher, and there are still characters that I absolutely won’t read, because I just can’t find the subtext. I’ve read characterizations that I just can’t get behind, turning characters motivations in disturbing (to me) directions. But I don’t see how it hurts that people see something there that I don’t.

     And the fact that I don’t like (or am disgusted) by something doesn’t mean that it isn’t valid. I once read an incredibly disturbing fic where Superman takes over the world, and Lex is the leader of the underground rebellion. Uncomfortable as it made me, it was absolutely brilliant.

     Nobody’s going to cater to your vision of the characters. They belong to all of us. Get over it.

168. Oooh! Oooh! With Six You Get Eggroll!

     (I accidentally wrote sex instead of six. Slashers are such perverts.)

169. And Juggling Act!

     Yes, Speranza was my initiation into DS, how did you know?

170. Ces is *everyone’s* initiation into DS. ;)

171. Jessie if fanfic is a contained community then why the need to legitimize it into law and public acceptance. Why does it need legal protection and status if it’s not going beyond the communities of interest into the world at large.
     No one is forcing to me to join those communities but some one is lobbying to get my potential rights redefined on behalf of those communities. So I get as much of a say in it as you do.

172. It’s rape, if not in deed then in intent.

     Was it “murder,” when JKR killed off Sirius Black? Was it “rape” when the nameless protagonist in Atwood’s The Handmaid’s Tale was forced to have sex against her will? Was it child endangerment when Baum planted little Dorothy in a land far from Kansas, surrounded by hostile strangers? If so, why weren’t those authors prosecuted?

     Of course it’s not. Not because “those were the original authors,” but because those are fictional characters. They are ideas, not people. They cannot be raped, murdered, assaulted, stolen from, or endangered… because those are legal conditions that only apply to living human beings.

     We talk about them being subjected to those things, but only because the meta-discussion gets ridiculous otherwise: “Check out the TV: the thought-form of a police officer has been drawn in the position of a man aiming a gun, and a drawing of what looks like a bullet has moved into the drawing that’s supposed to represent a young child from a poor family.”

     Nobody says that. Instead, we say, “Omigod–they killed Kenny! Those bastards!”

     Kenny is not dead, no matter how many times the authors of South Park kill him. And Harry is not debauched, no matter how many times fanficcers pair him with Draco. Neither is a person; neither has any legal or moral rights.

     The author has some rights. The readers have some rights (like, perhaps, the right to enjoy the original work without wanting to bleach their brains from the story of the Ghosts of Christmas Threesomes). The publisher and various other people or corporate entities may have some rights… but the characters do not share in those rights.

     You may have a right to read stories or watch TV shows without wanting to reach for mental floss. Don’t conflate that with fictional characters’ “right” to direct their own destiny… as chosen by the original author or his or her authorized agent.

173. Ed Bartlett: Which brings me to the question, “Why?”

     Which brings me to the question, “Why not?”

     I do not mean that as a snide retort. Seriously – why not? Obviously it pleases an awful lot of people. If you don’t like it, don’t read it, and don’t worry about it.

     So why not simply create new and original rolemodels, instead of a cut and paste? That’s what I want to know. That’s as good as I can explain it.

     Your question is one fanfiction writers have been getting for ages. The simple answer is, because we want to play in a universe we know. I want to go swimming. Why should I build a whole new swimming pool if there’s one in my backyard?

     The more complex answer takes up quite a bit of text space, but I’ll try to summarize.

     When fanfiction started (at least, media fanfiction), we wrote it because we wanted to see more of the characters than we were given in the television show. We wanted more plots, more adventures, more stories. In a sense, we were writing our own episodes for ourselves. Imagining Kirk and Spock and McCoy and so on doing something that would easily work within the Star Trek universe, but that the show hadn’t given us.

     Slash wasn’t so much a reaction to the dearth of gay characters on television (as evinced by the fact that, as the number of gay characters on television has grown exponentially, so has the amount of slash fiction) as it was a reaction to many other things. This list is by no means comprehensive, but–many women saw the close male friendships on the television shows as homoerotic, or at least homosocial. So many “buddy” shows (cop partners, detectives, spies, etc.) would have a “girlfriend of the week” for one of the two male leads, but he always left her at the end of the episode–but would never abandon his partner. They would also choose their close friendship over a woman any day. It certainly leaves room for interpretation that they might have had feelings for one another that ran deeper than they were willing to admit, which in a male/female fictional fictional relationship would always lead to the two of them falling in love in the end. Why not for two men? We know the show won’t go there, so we go there for them.

     Women’s friendships are (generalizing here) very physically and emotionally open; we hug, kiss, cry on one anothers’ shoulders, etc. When we look at male friendships, we see none of this. Some of us want to see that barrier break down. Some of us want to explore the idea that social indoctrination is what has restricted these characters from further exploring their very, very close friendships. Sometimes it’s so blatantly there that we can’t imagine why other people can’t see it. And sometimes, we just like the idea of two very handsome men having sex together. If you can’t understand that, think of the very common female/female sex scenes in pornography aimed at men. If men are turned on by two women together, why on earth would you assume that the opposite isn’t true for women?

     I want to go on a slight tangent here from your “why not just create your own characters” question. Writing fanfiction takes an entirely different skillset than writing original fiction; think of it, if you will, of painting with oils vs. painting with watercolors. They both require brushes and a surface to paint on, but the brushes are different, the surfaces are different, the colors are different, the proper use of tools is different, and the finished product is different. To write a good fanfiction story, the author must be able to convey the sense of the fictional world she is playing in; if she cannot give the reader a realistic sense of the environment, the story will not “feel” like the tv show, or movie, or book, or what-have-you. In original fiction, the author creates their own environment, and if it is cohesive, the reader takes it on. In fanfiction, the writer has to tap into an environment with which her audience is intimately familiar, and do it more than justice, or her story will not hit the right notes. In this same vein, the dialog must sound as if it is coming from the characters in the source material. To be able to write dialog in a voice and a style which is not what you might write left to your own devices is not easy–but for those who do this, getting it right is incredibly rewarding, creatively. Writing your own television series, and writing for a television series which already exists, are very different types of writing–do you think the person who made up the show is, by default, a better writer than the person who writes Episode 3? They didn’t make up that universe, or those characters, so does that mean that their episodes are just fanfiction that gets on the air?

     An example – after Aaron Sorkin left The West Wing, the show foundered because he had such a distinct voice that the next season didn’t feel, or sound, like The West Wing, until an episode called “The Supremes”, written by Debora Cahn. She understood Sorkin’s writing style, she understood the characters, she understood the pacing and the feeling and the atmosphere of the show, and after it aired, all of the West Wing fans got online and raved about how good it was. What she did? Was HARD. And the viewers reacted to it because she got it. That’s what a good fanfiction writer can do. And they get great joy out of it, because they love the characters they’re playing with, and they love the world they’re playing in, and when they get it, it is as rewarding to them as you seem to believe creating their own original fiction should be rewarding to them. But that’s as meaningless as saying “I don’t understand why you play baseball when it’s so much more rewarding to play tennis.” To you, maybe, but not to me. And baseball takes an entirely different collection of abilities, whether your believe that or not.

     These characters don’t belong to you, they belong to us all.

     Do you not see that that’s our argument too? They belong to all of us, to think about and do with as we wish.

     And I simply don’t like people messing with my friends.

     But you just said it yourself; they’re not only yours friends. They’re mine, too. You don’t own them and I don’t own them. I’ll play with my G.I. Joe over here, and you play with yours over there. What I do with my G.I. Joe has no bearing on what you think of G.I. Joe — unless you let it. We’re not trying to convince you of anything. We’re playing what we want to play.

174. Because if the communities are prohibited from being public and allowing new members to find them, they’re as precarious as Moranos in 16th century Spain?

     I’m also curious about the position of people on Bertie Wooster & Lord Peter Whimsy crossover fic. Both works are still under copyright, but the authors have been dead for many decades. Hard to get morally outraged about the author’s sensibilities there.

     Finally, I’m going to reference a particular fanfic, Benevolent Sibling. (Spoilers up through episode “Final Cut”) It’s a Battlestar Galactica (new series) story where the Cylons are watching surveillance cameras implanted on the Battlestar as in an episode of the TV show “Big Brother”. The characters are all pretty much true to form, if slightly exaggerated for comic effect. It’s also a remarkable work of criticism in my opinion, touching quite well on the foibles and characteristics of the cast on the Galactica. The drinking game is hilarious, and quite tempting for me to play along on my own while watching an episode. Finally, whose moral rights are we concerned with violating with this? The producer’s? Scriptwriter’s? Director’s? Actor’s?

175. Adela,

     No-one is lobbying to do anything. No-one is trying to take anything away from you, be it your enjoyment of a novel or your potential income as a published author.

     Although fanfiction, fanvid and fanart communities as we understand them (I am not referring to folk traditions, or anything) have historically been quite closed, these days they are not. However, these communities still share language, practices, genre expectations, pleasures, aesthetics and so on that outsiders may misunderstand, misconstrue, or object to. The OTW is, in part, intended to be a mechanism to argue for the legitimacy of these practices.

     You may, like Chris B, deny the arguments about whether such fan activity is transformative and legally and morally acceptable. That is your choice, and I am sure that many corporations would agree with you. I, however, would not.

176. “mechanism to argue for the legitimacy of these practices.”
     And how is that not lobbying.
     Did I say something was being taken away from me. No I said something I have a stake in is being redefined.
     “your potential income as a published author.” Is an assumption. Your crystal ball does not have any more of a scry bonus than mine.

177. Something that has been bothering me throughout this whole discussion is the insistence, particularly on Chris’s part, that IP functions the same way as physical property – that is, if I use your IP in a way currently not defined as fair use, I’m depriving you of a right over it *necessarily*. This would be true if I were distributing a copy of your work without your permission, accepting money for an unlicensed derivative, or attempting to obtain it, or some other venture that actually prevented you from receiving proper compensation for your work either directly (like pirating music or film, in which a product identical (or close to identical and attempting to be identical) to yours is distributed either without money changing hands or with all money going to someone who does not own the rights, and none to those who do) or by marketing my derivative work as an(official) alternative, rather than optional, unofficial addition to your work, or by somehow blocking your ability to represent your work to the public at large as you see fit (people who read fanfiction are not the public at large – no matter how big your fandom is, you probably make more money in total off people who have no idea that fanfic even exists than you do off fic-fandom, even if we do buy ridiculous amounts of merchandise and all the special edition thingymabobs). Fanfiction does none of this, primarily because it is incomplete without the original source. Most fanfiction makes very little sense without a working knowledge of what it is riffing on. It’s not like building a house on a part of your property that you’re not currently using, because doing so prevents you from then using that part of your property without knocking down my house, and no matter how much fanfic I write, it doesn’t stop you from doing anything with the original work. Fanfic is more like a third-party tech accessory, like a speaker for your iPod – no matter how nice it is, it doesn’t function without your original gadget, and that means that somebody who wants to use the accessory (maybe they really liked accessories that company made for other products) has to buy your product first. The consumer may decide that I like the accessory better than they do the original product – but by that time they’ve already invested in your product and that they no longer like it doesn’t harm you. (I have never ever heard of anyone treating fanfic as an equivalent alternative to the original work – while there are people who continue to read fic after they have ceased to be a fan of the original work, it’s out of affection for fellow fans and/or how the original work was before it went in a direction they didn’t like and not because it’s replaced the original as if one were an iPod and the other a Zune.)

     Also, there seems to be a prevalent idea that fic authors necessarily want to be professional authors of original fiction. Stop thinking like that, because it’s not true. Fic authors who seriously want to be published are already working on original works. The rest of us are just indulging in a hobby, sometimes just for fun and sometimes as an alternative to non-fiction explorations of the text, such as essays. (I write a lot more of those than I do fanfic, but some ideas are more effectively expressed in a work of fiction than in a critical essay, or at least, more interestingly.)

178. Adele,

     Your potential income as an author is what I assumed you meant when you said “get my potential rights redefined.” What is your stake in this, then?

     And perhaps we were talking past each other: when I say no-one is lobbying, I mean that (bearing in mind I am not on the OTW Board — I have just followed their progress) no-one is writing to governmental representatives to get laws changed, mitigated etc; no-one is being bribed, no-one is sitting on the steps of the Capitol. This is not the NRA.

     But perhaps you count the promulgation of scholarship on fandom lobbying; perhaps you count establishing a legal defense fund lobbying; perhaps you count standing up for something you believe in lobbying. In that case, I cannot argue with you.

179. Must go read the OTW’s FAQ in near future — and even then I suspect I won’t want to commit to any one viewpoint, if for no better reason than a personal preference for law which is consistent over law which is complete. (Consider application of Gödel’s Incompleteness Theorem to legal systems as well as formal [systems of logic].) Nevertheless, I offer a question in two parts which I have not read in the preceding 170+ comments:

     Say you have penned and distributed a derivative transformative work of fiction, in accordance with OTW principles. How will you react to the discovery that another person has, with intent similar to your own, written and released a transformative work of fiction which is recognizably based on your first-order transformative creativity?
     Will the guidelines proposed by OTW view all works of transformative order N (for all N > 0) on an equal footing, or is there a hierarchy determined by the relative degree of transformation (if any) between any two works?

180. Julie:

     It’s frustrating to see so many talented women writers sideline themselves into a grayland of questionable legitmacy by not exploring their own imaginations in avenues that aren’t limited to fandom. Fandom is by its nature a limited audience. But, better to be a big fish in a small pond? Is Novik helping female fanfic writers by trying to legitimize fanfic in the eyes of the law?

     This makes me wonder exactly why the ideal of creativity in writing seems to be publishing, or that publishing (or writing original fiction) is the best way to do so. Some of us aren’t that interested in being published or turning writing into a career, any more than I’m interested in making money off my crochet or my cooking. Neither of these things can be called original; I use patterns from books for the first, recipes (with variations on a theme, one might call fanrecipes perhaps) for the second; it’s just fun.

     I really can’t see how legitimizing it–in this case, giving us protection from take-down notices or lawsuits on non-commerical reinvention of a copyrighted work–would act as ‘sidelining’. Those that wish to publish will eventually take the steps to do so, fanfic or not; those that do not, they simply don’t.

181. Christopher @ 179

     The question of fanfic-of-fanfic (not so much other derivative works – there are very few arguments over fanart for someone else’s fic) does come up occasionally, and I believe that the generally accepted answer is that it is polite and expected that one will ask the original fic author before using their OC/writing a sequel/finishing an abandoned work. This is for a couple of reasons :
     1) fanfic is primarily a social endeavor, and because there is no (and no wish for) monetary compensations, compensation for effort comes in the form of recognition, feedback, and popularity (this is one of the reasons that fanart of fic is not objected to – it’s a form of “payment”). Therefore, writers and readers tend to interact a lot more than in the sphere or professionally produced entertainment, and not asking is seen as brushing off interaction, and possibly diverting recognition (primarily in the case of borrowing an original character) from the first author.
     2) Relating to the last bit of the previous – it’s a much stronger possibility within the fan community that a derivative work will dilute or confuse your recognition. Because there’s no real marketing within fandom and there’s a good chance someone will read someone’s continuation of your fic without realizing that either you didn’t write the latter part or that the second author did not write all of it (or didn’t come up with a fairly unique concept, or character), you stand a chance of losing your fandom compensation – your reputation might be damaged if people think you wrote what the second person actually wrote (or even that you allowed them to write it), or people may begin to think that the second author is actually responsible for the whole thing. This scenario is *immensely* unlikely with professional fiction, because the original is going to stand alone as a published object (if it’s even a text and not a film, television program, or comic), known to the public at large (or at least presented to them, even if they ignore it) and because, for any given work of fiction, it’s not necessary that I know who the author is for them to be compensated, because I’m going to pay for the work.

182. Christopher,

     I hope I understand you correctly when I reply that there is a line between plagiarism and fanfiction/transformative works, that is policed, often aggressively, by the communities themselves. Plagiarism is not tolerated, and I doubt (although I certainly cannot speak for) the OTW would even have a policy regarding it.

     However, the “second-order” transformative works you mention already exist. They are called remixes, and they are when one author takes the story of another and re-writes it, keeping some elements (perhaps thematic or the setting) and completely twisting others. They are often written in fandom-wide challenges and ficathons. I’m not precisely sure of the etiquette involved but the result is considered a piece of fanfiction just the same as the original. I highly doubt the OTW would see the need to make specific comment on them.

183. Chris:

     Will the guidelines proposed by OTW view all works of transformative order N (for all N > 0) on an equal footing, or is there a hierarchy determined by the relative degree of transformation (if any) between any two works?

     Interesting question, since the communities themselves have different standards applied at different times; general SOP, at least in my experience, is ask the author and cite the story, similar to how we label for show or book, etc. I agree with Jessie that I’m not sure it requires a specific comment, though I can see the OTW might require a minimum of citation of the story/author being used, which would help prevent confusion for readers, especially for works-in-progress or series.

184. Kerry @ 181:

     “it is polite and expected that one will ask the original fic author before using their…work”

     Could someone explain to me why this is polite and expected, but it’s not “polite and expected” to ask the copyright holder before using their work?

185. Phil,

     One reason, I suspect, is because it is too impractical; how does one ask JK Rowling? Another reason might be to avoid the possibility of it being refused. But mostly, I suspect, because the copyright holder is not part of the community being written for. It’s just not how the communities are set up in relation to the producer of the text. Analogies have proven risky so far, but: you don’t ask Coke if it’s okay for you to consume their product; you do, however, ask if it’s okay to take a sip of your friend’s Coke.

186. Jessie:

     Transformatively rewriting your analogy, this might be closer: You don’t ask Coke if it’s okay to make up a recipe using their product; you do, however, tell people where the recipe came from if you get it from a friend and people compliment you on the result.

187. I like it, Mary! I need to leave these babies to the professionals.

188. Jessie @ 185:

     How does one ask JK Rowling? Less than two minutes on Google turned up her agent’s contact details, her UK publisher’s details, and her US publisher’s details.

     You think you may be denied permission to take, so you don’t ask and just take anyway. Isn’t that generally referred to as ‘theft’?

     No, you don’t need to ask Coke for permission to drink their product. You do, however, need to purchase their product in order to do so, and you must pay each time you use it.

     The general gist of your arguments seems to be that the copyright holder is so remote there is little chance of them noticing and making an issue of what you’re doing. The fanfic community is small enough, however, that the original fic author is likely to notice you’ve appropriated their work, so it’s best to get their permission first. It boils down to what you feel you can get away with.

     Mary Lou @ 186:

     An even closer analogy would be using Coke’s flavour formula to make your own soft drink. I’m fairly certain that’s illegal without a licensing agreement, and Coke would expect compensation for letting you use their formula. What you’re proposing here is to make the same type of product (a story) and use JK Rowling’s formula (characters and setting) to give your product the same flavour as hers.

189. John wrote: “on the other hand I rather strongly suspect that amateur ethos will change if fanwork were to get a blanket fair use pass.”

     I can totally imagine a vast, low building on a smoky Chinese industrial estate getting some new signage: “SHENZEN FANWORK INDUSTRY” as legions of low-paid workers, which the company calls “fans”, roll out of their squalid dormitories every morning and churn out stories, novels, and even produce cheaply-animated DVDs.

     Then what fun would be had in international courts trying to prove that Shenzen Fanwork doesn’t actually fall under the umbrella of OTW.

190. Phil:

     Actually it’s more like I drink a Coke and then spend a lot of time tinkering with various ingredients, trying to come up with something that tastes like that except for one element that would make it even more appealing to me and my friends. I don’t have access to their formula any more than I have access to JK Rowling’s writing skills or thought process (nor do I have access to either one’s massive marketing machine); but Rowling put her stories out there in the world just like Coke put their beverage, and as a consumer of either one I feel that I have some right to be inspired by their work. If I start trying to sell the results I will probably run into problems, yeah, but all I really want is to know that the cops aren’t about to kick down the door while I’m playing in my kitchen and sharing the results with my friends.

     Jon H:

     What, another generation of gold farmers? MMORPGs seems to be surviving.

191. Phil,

     You think you may be denied permission to take, so you don’t ask and just take anyway. Isn’t that generally referred to as ‘theft’?
     “Take” what, exactly? I think this argument, about the differences between IP and physical property, have been covered extensively above (most recently, Kerry at 177), and I don’t have much more to contribute to it.

     As for contacting the CR holder, JKR’s people probably would get to my request. Eventually. Joss Whedon’s people too; or whoever owns the copyright for that. Mutant Enemy? Time-Warner? Whatever. Certainly, some authors are contactable (like John Scalzi. Well, except that he doesn’t want to be told about fic).

     The gist of my argument with regards to the question you posed at 184 is not about remoteness or about how likely being “caught out” is. The gist is about community. The codes of etiquette and politeness (and, further, the languages, aesthetics, pleasures, etc etc) are specific to it, hold within it, and do not necessarily extend further.

     (Sometimes they do. When fiction writers do ask that people don’t play in their worlds, many fans choose not to out of respect (Anne Rice is a case in point; she doesn’t have much of a fanfic base at all, although I’m not sure if that’s a case of respect, per se…). Many fans don’t, and I would argue that’s fair enough.)

192. Phil:

     No, you don’t need to ask Coke for permission to drink their product. You do, however, need to purchase their product in order to do so, and you must pay each time you use it.

     And that’s why analogies between intellectual property and physical property break down. A story is not a beverage, it is not consumed – in the sense of being used up or destroyed – when I read it or think about it.

     But for what it’s worth, everybody I know who writes Harry Potter fanfic made plans to buy the books at midnight on the release date. JK Rowling got my money for her books, and she got my money and the money of a lot of fan writers for tickets to the movies, DVDs of the movies, and a vast array of other merchandise. Fan writers are first and foremost very devoted fans, in the sense that also means paying customers. That makes me uncomfortable with calling what fan writers are doing theft. It’s not the same thing.

193. Mary Lou @ 190

     One big difference: the ingredients for your soft drink are likely to be found in a number of different soft drinks, so Coke has no claim to them. If you were to use an ingredient unique to Coke, one that Coke had invested a lot of time and resources developing and had patented (thereby claiming ownership), you would have to get Coke’s permission. The characters and setting of the Harry Potter novels are ingredients unique to that series, and JK Rowling has the copyright (thereby claiming ownership).

     If you want to make a similar product, use common ingredients or develop your own unique ones. If you wish to use a proprietary ingredient, get permission from the owner.

194. An Eric – IANAL-BIHANBH(I am not a lawyer- but I have a nolo book handy)

     “Plot constitutes a protectible expression only to the extent it was independently created.”

     So, you’re right.

     BUT

     “Plots are rarely protectible, because there are very few independently created plots.”

     “Authors spin their plots from a relatively small number of ‘basic situations’.”

195. My question to the FanFic/OTW people is – How would you feel if your story became real? The author/owner of the IP writes basically the same exact thing as you, yet you get no credit or compensation? What rights should you be entitled to at that point?

196. Just for the record, there are plenty of fans who don’t support OTW at all. We prefer to keep fandom out of the mainstream and prefer to stay in a legal gray area, rather than threaten our very existence by waging a quixotic battle against copyright. We don’t think that fandom is limited to just women, and we don’t consider ourselves part of the specific history that they invoke on their website.

     OTW is a very narrow organization with very ambitious and problematic values and goals. That’s fine, but the problem is that they have positioned themselves as an advocacy group that speaks for fandom, without actually being interested or responsive to opinions that don’t match theirs. They may represent themselves as the voice of fandom, but they’re fighting a battle that not many in fandom support, or care to join.

197. Phil @ 193:

     You’re setting up a straw man, here. Like I said, I don’t have their formula: in your new version of the analogy, there’s a secret ingredient, but I don’t have that either. I have Coke, the kind I bought off the shelf at the grocery store, and I have the contents of my kitchen and the rest of the grocery store. Those are common ingredients. If I got access to Coke’s secret ingredient or formula through some kind of corporate espionage–if I stole JK Rowling’s hard drive or compelled her to tell me the whole backstory of her novels, or if I misrepresented myself as as JK Rowling to take advantage of her fame–then, yes, I would be stealing something. But all I’m doing is taking the product she sells, using it as I’m supposed to use it by reading her story and becoming attached to that narrative and those characters (something I think all writers want readers to do), and then turning around and creating my own thing that builds on that, or uses the pieces of it that I like and not the pieces that I don’t. As long as I’m not using my product to compete with Rowling or Coca-Cola, my actions don’t affect them in any way, and I don’t see why I need either one’s permission.

     Also, as others have said, when writers explicitly forbid fan fiction of their works, very little tends to be written about them. Rowling is in fact fairly supportive of fan fiction, and that fact is likely related to why there is so much of it based on her work.

198. Phil B @ 184 — keep in mind that “fandom” is not a monolithic entity. Different people who happen to be members of one or more of the many different communities which make up “fanfic fandom” can explain what they think, what their friends think, what the norms are in their community, but you’ll never get everyone to agree, so you’re not arguing against “fandom’s” point of view here because there is no single point of view which comes from fandom as a whole.

     Personally, I don’t see any difference between a fan writer and a pro writer so far as it being acceptable to riff off of the work of one but not the other. I frankly think that people who believe it’s fine and dandy for them to write fanfic based on a professional work, but who turn around and flame someone who writes a fanfic of their (fan)work, to be hypocrites. I’ve said so publicly within fandom and there are a few people here and there who agree with me.

     My fanfic journal has a statement on its profile page saying that anyone is free to fic my stories, with some caveats (i.e., no commercial use, what you write isn’t my canon, etc.) and a link to a more extensive discussion post. I’ve recently published some original fiction and my view hasn’t changed — fanfic is still fine now that I’m on the other side. I’d feel like a hypocrite any other way.

     Angie

199. Phil:

     You don’t ask JKR because she’s not a part of your community, and she’s already received her compensation. There’s no chance anyone is going to be confused about authorship or “canonicity” of your work versus hers, and hence to reason for it to be necessary that she know you are doing it, because your work is not going to interfere with her in any way. No one within the community is going to look at your work and think it’s JKR’s or that she had a hand in it. (For the record, Rowling has already said “go ahead and write it; just keep the smutty stuff away from kids”.) If an author were actually an active member of the community, the same community standards would apply, but this is pretty rare.

     Patrick @ 195:
     It depends on whether there’s actually any evidence that they took specific ideas directly from me. If I’ve written a fic and posted it in some remote corner of the web, then I’ll be congratulating myself on having accurately predicted the future of the work. If I’m in regular contact with the author and know that they regularly read my work, and I’m the only person expressing those ideas (in larger fandoms especially, this is unusual – people tend to write on the same themes at any given time), then I’d expect fan-compensation – the recognition that those were my ideas. That means an acknowledgement somewhere in the text (or other medium), but not monetary compensation.

200. Mary Lou @ 197:

     Let’s get rid of analogies and get to facts. What you are proposing is to take something unique that someone has invested a lot of time and effort into creating (ie. characters and settings) and use them as if they were your own. And you are claiming ownership – why else would someone wanting to fanfic your fanfic be expected to ask your permission?

     Which brings me back to my original question: if it is polite and expected to ask the original fic author for permission to use their work, why shouldn’t it be equally polite and expected to ask the original author for their permission? So far, the direct answers I’ve read here (@ 191) seem to consist of “too much hassle, can’t be bothered” and “we make our own rules for our little clique, and anyone else be damned”.

201. AngiePen @ 198:

     I’m aware that fandom isn’t a united entity. It sounds as though Ms. Novik and her group are attempting to make it so.

     Kerry @ 199:

     I’m also aware of JKR’s position on fanfic. You have her permission (within limits). However, there are plenty of other published authors who haven’t made their position clear. If you wanted to write a piece of fanfic based on the Shannara series, would you make the effort to find out Terry Brook’s position on fanfiction? If not, why not? (By the way, his position can be found on his website if you look hard enough.)

     (That’s all from me for now. Sleep beckons. The discussion has been enjoyable.)

202. OTW suffers from the fact that the majority (if not the entirety) of the upper level (board +committees), as well as most of the supporters, are coming from extremely similar fannish backgrounds. Female-dominated media-based fandom (I should note that not all fanwork-producing fandom is “media fandom”, many of those of us who write RPF reject that label) focused on LiveJournal.

     Not that any of those are bad things. But the view and experiences at the core of OTW are a small fraction of overall fannish views and experiences, and as such they tend to misunderstand/misrepresent segments of fandom they’re not used to. Not necessarily with any ill intent – although I do question why their response to “this doesn’t apply to my experience” or “this excludes me” tends to be “no it’s not, because I say so” rather than an attempt to understand – but it happens all the same.

     And so as someone who falls outside their comfort zone, I have one main issue: if, in advocating for legitimacy, they succeed only in legitimizing that which they are currently presenting as fandom, those who are misrepresented are still out in the cold.

     I’m also troubled by their disregard for anything outside their paradigm; their contempt and/or ignorance of existing projects (I still have yet to get a good explanation why they intend to create a wiki, when one is already in existence, and fairly successful) has me thinking they are only out to legitimize fandom on their terms, done their way.

203. The author/owner of the IP writes basically the same exact thing as you, yet you get no credit or compensation?

     Patrick at 195:
     Happens all the time. It’s bound to happen if you’re working in an evolving canon and the show/books are the least bit bound by the rules of story-logic: some ficwriter is going to come up with roughly the same answer to the ongoing arc, or a character twist or whatever, that the show does. It doesn’t necessarily mean the creators are writing your stuff (although they may be), and in most circles it’s considered bad form to do more than squee about the overlap.

     What several of the commenters here seem to be missing is that any legitimacy fanwriters are looking for is derivative. I have no interest in claiming I invented the Supernatural universe or Farscape or whatever, and nor do any other (sane) fans. Derivative rights in the creative aspects of our work should not and cannot trump the rights of the original copyright owners.

     Phil at 200:
     if it is polite and expected to ask the original fic author for permission to use their work, why shouldn’t it be equally polite and expected to ask the original author for their permission?

     A couple of issues here–first, the number of individual (living) authors who are subject to this is vanishingly small: Rowling, Bujold, and Pratchett are the only ones I can think of where the stories written based on their work totals more than a couple dozen. Your average midlist or even best-selling novelist never gets the treatment, or again it’s rare enough to be a statistical anomaly. I know of no OMW fic, nor of any fic based on the work of Elizabeth Bear. I know of some Temeraire fic, but again, there’s not actually a lot of it.

     Second, fandom isn’t one entity. Fandom is a huge undefinable mass of communities and subcommunities, each with their own splinter factions, all with their own rules and etiquette. What norms control in one place may not in another. So yeah, there are communities where the desires of the original writer are taken into account and nobody writes (or posts publicly) fic for their work. There are also communities where nobody bothers to ask.

     Third, asking can put the writer in a bind. JKR is in a position where she can say anything she likes, pretty much, and she thinks that fanfiction does her no harm, so she can say so. However there is sufficient confusion within the publishing community about the legal status of fanfiction and the actual consequences of it that I suspect most writers are strongly discouraged from even acknowledging its existence. God forbid you indicate you know the content of it–some fan might claim you stole their story idea! Or, more likely, the lawyers are going to come down on the fans for “diluting the trademark”–thus pissing off the very readers and customers you want to attract. It’s much easier for a writer to just pretend fanfiction doesn’t exist–but you can’t do that if fans keep asking you about fic.

     So, no, it’s a bit more complicated than “too much hassle, can’t be bothered” or “anyone else be damned”. And really, we do think and talk about this stuff–endlessly, in fact. I don’t want to know what your mental image is of fanwriters, but I can pretty much guarantee it’s not accurate: the women I have met through fandom are the smartest, savviest, most generous people around. I’m proud to be a member of that community.

204. The closest analogy I can think of for fanfic made public (which includes putting it online) is playing in someone else’s yard. Which we did, when I was growing up, and I think it was a net benefit for the neighborhood but also had some pitfalls and potential problems, which were negotiated by social norms not unlike those used by fandom. (One of those norms was the right of any owner to ask kids to leave at any time for any reason, with no further grief or consequences on either side. Owners could also declare their yard a kid-free zone generally, but the default was that it was okay to play on other people’s land unless other wishes had been made known.)

     I talk more about how this worked over on my blog. And it seems to me that our host’s own fanfic policy is in much the same spirit.

205. Despite my support of more open IP and belief that creators of derivative works should have rights and protections, I’ve gotta say I’m underwhelmed by arguments about a community’s current standards or traditions. First, because they have no legal weight at all (even under a pre-Berne copyright regime, or under a hypothetically more open “unDisneyed” IP regime). Second, because community standards may vary between communities or evolve within a community–what’s polite here and now is no guide to what will be polite next year or over there.

     My personal view would be that a derivative (or “transformative,” if that nomenclature works better for you) ought to be subject to the same standards whether it’s based on an original work or another derived work. If it’s etiquette to ask permission of a fellow fanficer, than yes, it’s etiquette to ask the source author. And if it’s unnecessary (not merely inconvenient) to secure permission of an author, that also applies across the board. Anything else is a double standard and be damned, even if it is your particular community’s double standard.

206. the women I have met through fandom are the smartest, savviest, most generous people around.

     cofax, it’s not the smart, informed, good looking, rational fans writing fanfic that have anyone concerned, I suspect. It’s the dumb, naive, opportunistic slugs of humanity that ruin a good thing for everyone that would concern me.

207. As for “why ask other fic authors, but not the original creator, for permission to remix/add to a story?”

     Because what’s being requested is not “permission to use the story.” That’s a given… you have the right to make up any story you like. The question is whether you have the right to *share* that story in a semi-public or public venue.

     What’s being requested is not “may I use your story as an inspiration for one of my own?” but “may I post my commentary on your story in a place where you may be getting feedback about it? May I allow the possibility of people confusing your story for mine, or vice-versa? May I borrow some of your online recignition points?” and so on.

     Since JKR (1)Doesn’t participate in fanfic forums and (2)would never be confused with the author of “And Just Plain Wrong”, there’s no need to ask her in this setting. However, the half-a-dozen spinoffs & sequels to “And Just Plain Wrong” were written, some of them, by other authors… and since they are all published the same way (i.e. as websites with an author’s name buried in the credits on top), and often linked together, people could confuse the original with the spinoffs, and think they were written by the same person.

     Since the only payment for fanfic is in recognition credit, that means a fic-of-a-fanfic *is* potentially taking something from the original author. However, no amount of fanfic takes recognition credit away from JKR.

     By this logic, there’d be no need for a Star Trek fan to ask permission to “rework” a Harry Potter fic on the Enterprise… it’s only to avoid plagiarism (a different claim entirely) that she’d be obligated to mention the original fic author’s work. But, since fic is “paid for” in recognition, it’s polite to send a note to the first fic author saying, “I liked your work so much that I wrote fic inspired by it”–a payment that JKR is not privy to, as she’s not part of the fanfic community.

     Back to the Coke analogy:
     If I make a special holiday punch involving steaming hot Coke, grenadine and apple cider spices, I don’t ask Coke for permission. I can’t sell my recipe, but I can certainly serve it at parties and share it with friends.

     If one friend doesn’t like grenadine and wants to replace that with orange extract–but wants to keep using my mix of cider spices–it’d be polite for her to (a) mention it to me (although permission might not be necessary), and (b) agree to mention to other people where she got the idea for the recipe.

     And while it’d be near-psycho of me to say “no, you cannot make my Coke drink with oranges! Why, the very idea is an abomination!”, it’d be reasonable for me to say, “I don’t want you to offer it at parties where I’m already known for bringing mine.”

     This is not about legalities… it’s about social mores. There are no laws (and should not be any) requiring everyone to be polite. But that doesn’t mean politeness and rudeness are irrelevant… especially in a subcuture where payment is done by credit and name-recognition.

208. An Eric:

     My personal view would be that a derivative (or “transformative,” if that nomenclature works better for you) ought to be subject to the same standards whether it’s based on an original work or another derived work.

     Why exactly? One of the few things that make me wary about the concept of ‘legitimizing’ fanfic is the idea that we will be required to take on a culture that we’re not a part of instead of continuing to develop our own. A double standard applies to all walks of human interaction, so my interaction with my sister as opposed to a colleague from work is by nature a double standard; one can do/say things that the other cannot. Fandom drifts closer, most of the time, to interactions that are more personal than a professional relationship would be.

     In any case, the double standard is an illusion at best; etiquette may promote asking, but the is no consistent method of enforcement. Nor would many of us (though I do not speak for all or even most) be all that interested if there was a method.

209. An Eric: Elfwreck has got it right about what I meant as far as why it’s not a double standard to ask fan writers before you use their work as inspiration or borrow from it, but not ask pro authors – it’s to do with payment and the possibility of dilution. Fanfic has no power to take recognition away from pro fic, nor to take money away. Fanfic *does* have the power to take recognition and reputation away from other fanfic, and because there is no money involved in fanfic, recognition and reputation are all a fan author has. No one will think that JKR etc has agreed to affiliate with Random Fan-Author X, but even if it’s clear that RFA X wrote the original and RFA Y wrote the “re-mix”, there’s still an implicit assumption of not just permission but *approval* on the part of RFA X, which can damage their reputation if RFA Y does a bad job.

210. I’m not a fanficer, and I honestly have little-to-no interest in fanfic subculture. So matters of fanfic etiquette, community and culture are of little interest to me.

     My interest in the subject is a more generalized interest in intellectual property and the creative process. Who owns a work? What legal rights does an author have and what legal rights should he have? How are those rights limited? What are the rights of a creator of derivative work? What restrictions apply to derivative work? What is “healthy” for popular culture? Whither do we go?

     If fanficers want to stay in the back alleys of pop culture, trading their products between each other, following their own rules and indifferent to the legal or social status of their work, that’s frankly useless to me. I’m interested in whether or not Scholastic Books or Warner Pictures can close down your little tea party–because I think it has wider ramifications for art, lit and music–not in whether or not you plan to slink away and hold it in a different dive when the lawyers kick in your doors.

     I think your critics may be right about one thing: if your attitude is that you should just do as you’ve done without regard to the world outside your subculture, you’re being selfish and parochial, if not worse.

     I don’t believe the big picture is one where you can talk about situational ethics: “It’s okay to treat a Big Published Author differently from My Personal Internet Friend because with BPA it’s about ‘dilution’ and payment and with MPIA it’s about ‘reputation.'” Your critics don’t care about your friends’ reputations, they care about the reputations of the source authors. And you may not care about payment, but the copyright holders and their assigns do care. (And many of them are aggressively litigious or are becoming so, and some of them have very expensive lawyers who will own you if their masters unleash them on you.)

     You don’t want to take on a culture you’re not part of? Forget the OTW, you people need to be chipping in together for an abandoned oil rig in international lawyers where you can start your Free State Of Fandom–you don’t have a choice. Your subculture is embedded in the larger culture and you’re subject to that culture’s laws and mores. If that culture turns on you, then what? “Well, I know I put my story in plain view of six billion people, but it was really only meant for 150 of my friends, please don’t hurt me…”?

     Your writing fanfic doesn’t bug me one bit. Your indifference to law and society, on the other hand….

211. I don’t have to ask a writer if I have an opinion about their book.

     I don’t have to ask a writer if I want to write an essay about their book in my LJ. If in the course of the essay, I say, “this plot would have made a lot more sense if Frank had turned Peter into the cops, rather than going on the road with him, because the author doesn’t understand anything about criminal law,” I don’t have to ask permission.

     But if I go on to say, “and then Frank would have had to hire a lawyer, and — oh, wait, there’s that lawyer that Peter slept with in the first chapter, wouldn’t that be interesting to bring him back in, and then you could have some awesome snarky conversations between Frank and the lawyer–” do I have to ask permission for that?

     What if I offer three lines of dialog between Frank and the lawyer, or between Frank and Peter where Peter tries to explain why it’s a bad idea to hire the lawyer, and where it becomes clear exactly how badly the original author has misrepresented the law? Do I have to ask permission there? For a few paragraphs in my review?

     Fanfiction is often commentary, and the boundary between nonfiction analysis and fictional commentary can be more fluid than one expects. Additionally, fictional commentary can be far more effective at getting the point across than nonfiction, as well.

     By ruling out the legitimacy of fanfiction universally, one ends up ruling out the legitimacy of commentary, satire, parody, pastiche, and homage–and you can’t. Those art forms are protected in various ways. And no, not universally: there are almost always constraints.

     So the question becomes whether a court would agree that the public good is better served by allowing certain kinds of derivative creativity to flourish openly than by driving it underground* and punishing those perpetuating it.

     * Because you won’t stop it.

212. Your indifference to law and society, on the other hand….

     Oh, please.

     Broad brush, much? Nobody’s indifferent to law and society: we’re embedded in it.

     Failure to comply with some sort of undefined obligation that not even professional writers and publishers agree on is not being “indifferent to law and society”.

     For every writer who rants about ficwriters “raping my characters ohnoes”, I can point you to a professional writer who perpetuates Harry/Draco slash in her spare time. There is no more consistency in the law and the social context outside fandom about the appropriateness or legitimacy of fanfiction than there is consistency within fandom on any number of issues–including the etiquette of asking or not asking regarding fic or remixing.

     And the reason we’re having this unending argument (and I promise to stop contributing to its unendingness) is that the law is not clear on the issue. Full stop. In the absence of settled law, people make up their own rules, and they usually do so in furtherance of their own interests. What a surprise.

     Sorry, John, I got peeved. I promise to behave in the future.

213. An Eric:

     I think your critics may be right about one thing: if your attitude is that you should just do as you’ve done without regard to the world outside your subculture, you’re being selfish and parochial, if not worse.

     Howso? This is where I get confused. I don’t want money. I make no claim that I own the original intellectual property in question or that I created it, nor at any time do I represent any of these as true to others.

214. No, cofax, the question isn’t whether a court will agree about the public good, because judges are perfectly capable (and sometimes willing) to issue opinions that say something like, “While this court sympathizes with the defendant’s position that his work is commentary, and therefore covered by Fair Use doctrine, it is clear under present law that the defendant’s creation is a derivative work that violates the plaintiff’s copyrights.”

     See, that’s the thing about the rule of law. A judge can agree with you while he hands you your ass. (Personal side note: I just love it when a judge rules against me and then tells me he could be wrong and I’m welcome to appeal his decision. Thanks. That’s swell of you, Judge.)

     Commentary is traditionally protected by Fair Use doctrine (although Fair Use itself is under assault). Writing and publishing (in the broad sense, which includes posting online) a story using another author’s IP generally is not protected. I would not expect a fanficcer to prevail in court under the current state of the law. (Don’t accuse me of agreeing with the law in this case, I’m only sharing my understanding of it, not defending it.)

     And note that Fair Use is an affirmative defense: if you run out of money before TimeWarner, you can lose by default even if you did have a solid legal argument.

     Legitimacy and legality are different issues. Personally, I’d like to see them brought into some kind of accord. Fanficcers who thumb their noses and say they’ll just go further underground don’t really help that cause. And I don’t care if you don’t want my help: this isn’t about you and your fanfic, it’s about what copyright law should look like. The case that shuts down your fanfic site has a good chance of being precedent when a record label seeks an injunction against a mashup artist or a writer’s estate goes after an unauthorized sequel, satire or parody.

     Trying to rationalize fanfic community practices by describing fanfic as something it’s not isn’t going to win over any of your critics and it’s definitely not going to win over a judge. What it may do is get you in a world of trouble.

215. Strictly legal copyright aspects, in regards to fair use, hinge on four aspects. Two of those boil down to “money.” With the money issue out of the way, as it is for fanfic (or as it is for the vast majority of fanfic), the other two are “how much is being copied” and “what’s the purpose of the copying?”

     How much is being copied… character names, settings, occasional descriptive details. Fragments, in a literal sense. *Ideas* are being copied, such as “the concept of a four-house wizard school,” but actual *phrases* are not much copied. It’s unclear how much protection these literary fragments have… certainly, any reviewer is free to mention names, locations, and the plot structure of the original.

     The amount being copied in fanfic is well within the range of expected fair use–at least, if numbers of words are what’s being measured. If tone and style are counted… then each work must be judged separately (which is what copyright law requires anyway).

     Purpose of copying: personal enjoyment is in there, along with commentary on the original, and occasionally social or political commentary using the fanfiction as a medium. It’s rare that one can argue fanfic has “educational” purposes; rarely is it used for medical or scientific uses. (I have seen it used as a literary educational tool; cf. Snape: Wizard or Chicken?–but I admit that’s pretty rare.) Occasionally it can claim political value… but mostly, we’re dealing with “creative artwork for the pleasure of the writer & readers.”

     Which is less protected than “educational purposes,” and more protected than “to make money.”

     I’m not sure there’s ever been a successful case of copyright infringement prosecution that didn’t involve money, although with digital copying and distribution, I expect it to happen eventually. However, fanfic is not “copying” in any traditional sense; it’d be very hard to prove why fanfic is an infringement if a detailed review is not.

216. Seperis: because eventually someone will take you to court because they can or because they don’t like you. And if you lose, your case is going to make bad law. And that bad law may end up being used against other creative people.

     Because at some point TimeWarner or Disney or some other megacorp is going to go to their Congressman and ask for yet another statutory expansion of copyright and restriction of Fair Use, and the Big Evil Company is going to use your worst behavior to fuel the fires.

     Because there are people who might tolerate you, or agree with you, or even support what you do, but who are alienated by the way you’re doing it; some of them have written comments in this thread talking about their proprietary feelings towards their work. Friends are better than enemies.

     Because profit is not a dispositive element of IP violations–you don’t have to make money to violate an author’s copyright.

     There’s probably more, but I need to do some work now.

217. (Reads Elfwick’s post before heading out to court and begins beating head against the table….)

     You need to look at Fair Use again, and not just at the parts you like this time.

218. My lord, I started reading to catch up when it said there were only 169 comments!

     A few things (I’ve tried to read every word of the previous comments, but if I missed something or misunderstood a point, I apologize and will blame the volume):

     One issue that rarely comes up in regards to IP is the owner’s obligation – OBLIGATION – to take an active role in protecting their work. You can lose your control if you don’t. I believe that this was one of the things that John was referring to when he stated that others ‘should not send him their fanfic’. I’m sure he doesn’t want to be caught in the unenviable position of having to attack his fans.

     While he might like a particular piece, he doesn’t want to start down the slippery slope of giving others excuses to circumvent his control – nor does he want to get caught in a ‘you copied my idea (fanfic)’ suit.

     Very often, a creator (original content) is stuck between their need to protect and their desire to support fans. CC Copyrights go someway towards addressing this middle ground, but at least in my opinion they fall short of the desired goal (creative freedom in non-commercial activities, control in commercial activities).

     I ran across http://www.benedict.com in doing a little follow up on this issues. Amongst other things they have a nifty (not sure of the accuracy) ‘fair use visualizer’. Plug your variables in and it gives you an idea of how safe your activity is.

     Back in the day, fanfic, fanart, etc., was something that was shared with or without the original author’s consent, in a relatively limited environment and the tools for easily commercializing such things were not readily available. As such, if anyone was annoyed by the attention, it was relatively easy to ignore. Now of course things are different.

     If I were inclined to fanfic – I’d be asking permission first. If denied, I’d be disappointed – but I wouldn’t then go ahead and either attack the originator or write my illegal fanfic anyway.

     Whatever happened to asking for permission?

     Someone mentioned the differences between copyright and trademark. Its entirely possible for both to be applied in many circumstances. Old Man’s War is (c). The Old Man’s War Universe could be ™. It might prove that the combination is an effective way for creators to exert greater control in situations where they want to allow authorized fanfic, but still retain control of their works. Fanfic writers would get permission to work in the universe, which could be limited in any manner desired by the originator (you may not put the words ‘zoe’ and ‘tail/tale’ together in any manner whatsoever…). Authorized works would be immediately recognizable because they carry the trademark.

     I work in IP part time (mostly patents) and if you think this is issue is a kettle of fish, take a walk on over to the patent wild-side. Some folks are so disgusted with the whole thing that they are actually advocating foregoing patents.

     I will say that we’re definately in a watershed moment regarding IP of all kinds, this fanfic issue amongst others (the late Scribd issue for example) are only ripples in the greater scheme of things. I don’t think anyone has the answers yet, nor will they be for some time. Until things are reformulated to deal with the new and emerging technologies and capabilities, the soundest course of action is to figure out where you stand and then stick to your guns.

219. An Eric:

     Legitimacy and legality are different issues. Personally, I’d like to see them brought into some kind of accord. Fanficcers who thumb their noses and say they’ll just go further underground don’t really help that cause. And I don’t care if you don’t want my help: this isn’t about you and your fanfic, it’s about what copyright law should look like. The case that shuts down your fanfic site has a good chance of being precedent when a record label seeks an injunction against a mashup artist or a writer’s estate goes after an unauthorized sequel, satire or parody.

     Now this is interesting. The selfish comment completely flew over my head, so I assumed this was another random judgement; however, linking the cause of legitimacy in fanfic (a specific) with the entirety of the weight of legal copyright (in general), does change my reading of your comments up to now. I’ll re-read to see how much I agree with what you’re stating.

     I think the bigger problem that comes up in this is that we, fanficsters, need to change to accomodate the greater movement, and I’m not entirely sure how I feel about the idea of changing our various fannish cultures to better serve this. I’m not sure how much change would take us away from what we are *now*.

220. One issue that rarely comes up in regards to IP is the owner’s obligation – OBLIGATION – to take an active role in protecting their work.

     That’s trademark, not copyright.

     There is no obligation to defend one’s copyright: you can’t lose it via dilution.

221. Jessie Says:
     I hope I understand you correctly when I reply that there is a line between plagiarism and fanfiction/transformative works, that is policed, often aggressively, by the communities themselves. Plagiarism is not tolerated, and I doubt (although I certainly cannot speak for) the OTW would even have a policy regarding it.

     But one of OTW’s IP lawyers has been outed as a plagiarist, and has vehemently defended another plagiarist. I’m not seeing how fans and authors alike shouldn’t look at this and worry.

222. Fair use is tested against four factors
     NATURE OF USE–my claim is that fanfic is “transformative” use. It is also sometimes commentary, review, or parody, but I agree that the bulk of fanfic is not specifically those things. However, it’d be ridiculous to believe that parodic, mocking fanfic is acceptable but serious homages are not… yet that seems to be the current claim by people who dislike fanfic.

     (I always wonder if the people who think fanfic is “illegal” would prefer that only the most vicious parodic mockeries existed… because those are certainly legal. Very odd that the drive to stifle fanfic is aimed at the works with the best literary qualities.)

     It is also noncommercial, a strong point in its favor.

     NATURE OF WORK: Published fiction… published leans toward fair use; fiction leans toward “needs permission.”

     HOW MUCH IS USED: Individual words & small phrases… plus plot points and background concepts, but not literal words. Certainly the amount literally copied is within the range of fair use, or book reviews could not be written.

     Ideas are not copyrighted, only their expressions. The tangle of where the line is between “an idea” and “its expressed form” hasn’t been tackled by the courts. (If you know of cases, I really would like to hear them.)

     WHAT EFFECT ON ORIGINAL: Fanfic doesn’t take away readers or sales from the original. It doesn’t attempt to blur the identity of the author into including the fanfic. It doesn’t attempt to lower the original’s financial or social status.

     A solid argument can be made that fanfic has a strongly *beneficial* affect on the original, in terms of recognizability and marketability.

     So:
     Noncommercial, at least somewhat transformative work: point for fanfic.
     Original is Imaginative, not Factual, but is published: Middle ground.
     Usage is fragmentary only, but draws on original concepts: Blurry as hell.
     Affect on original: Neutral to positive. Point for fanfic.

     Two points for, two points in possible contention, with the charming addition that there’s no money to be made suing anyone.

     So… without money involved, without blurring the identity of the originals–what rights are being violated? The “right” of the author to feel comfortable with public reaction to his or her story?

223. STannig:

     But one of OTW’s IP lawyers has been outed as a plagiarist, and has vehemently defended another plagiarist. I’m not seeing how fans and authors alike shouldn’t look at this and worry.

     I can see why that would be a concern, if one decided that a single person was representative of a massive group of people. I won’t defend that particular person, nor do I wish to; those actions were against everything we believe and what we practice. We are not a homogenous single entity–from group to group, from person to person, community to community, practices, cultures, opinions are different and change rapidly with the influx of new people into it and the departure of more established people.

     But I do find it frustrating that the argument being made is because one will do it, all will do it. It’s equivalent to calling all sports fans obsessive stalkers because one is an obsessive stalker. No single fan can represent us all; OTW is as close as I think we can come to a singular uniting organization and I don’t think they claim to speak for all of us as a united whole.

224. tzikeh:

     Because most fanfiction writers don’t want to become freelance/published authors. The assumption that fanfiction is a “training ground” for professional (read: paid) authors is, frankly, insulting. Why is something only legitimate if one is paid for doing it?

     First, I was responding to Julie’s characterization of fanfic as ‘kiddie food’, but in any event, frankly, I don’t believe you. While legitimacy is irrelevant to pay, who does not want to get paid for doing what they love? That’s the dream of every working person in the world – what if I did ____? – something that I truly love to do.

     And since the vast majority of fanfic writers truly love what they do, I can’t imagine that there is a single one who has not lain awake at night, thinking that ‘if JK Rowling found my fic, and wanted to publish it in an anthology, do you think I could get paid for it? Enough that I could quit my job as a barrista, and just write for a living?’

     Fanfic Liberation Group:

     I love how every discussion about fanfic comes down to fanficcers saying, “But you just don’t understand us! We has a culture! And norms and understandings.”

     I’m sure you do. But as a lawyer, I don’t look at this in terms of you guys writing your fics, but five, ten or twenty years down the road. If you have some legal right to use the characters (that are another author’s IP) in your writing, you are presumed to have copyright in what you create, even if no one writes fic for money now, they will soon. And they will use that right to publish books against the wishes of Rowling et. al., who now have realized that this isn’t a cute harmless underground anymore, but a burgeoning book market, where the top ficcers who used to toil in obscurity are offsetting their ‘writing expenses’ by selling books through print on demand, and eventually bookstores.

     What the fanfic community has agreed on now is in no way binding upon them in five years. But the changes you seek will be permanent, barring new legislation. So you’re asking people to support a permanent change in how IP law is generally understood, in exchange for emphemeral protections for the authors. Sounds like a crappy deal to me.

225. Tor Said:

     And since the vast majority of fanfic writers truly love what they do, I can’t imagine that there is a single one who has not lain awake at night, thinking that ‘if JK Rowling found my fic, and wanted to publish it in an anthology, do you think I could get paid for it? Enough that I could quit my job as a barrista, and just write for a living?’

     We’re not all barristas, nor do we all hate our jobs. I love my job. For the most part. I’m in school again so I can do it even better, because my job is one of several creative outlets in my life. I wouldn’t quit my job to write full time because I actually am doing one of the things I love and because I feel what I do is important. Granted, that could change; three, five, ten years from now, I may find I want to do something else. That’s life, though; changing careers is common.

     I don’t write fanfic because I want to become a published author, because I’m hoping someone will stumble over my work and offer me a contract on the spot; people don’t play World of Warcraft in the secret hope they’ll suddenly be able to make money from it. I write because I love to write; I post to interact and participate in my community.

     Why is it hard to understand that?

226. I can hardly wait until someone writes about the *real* reason Longwings choose female aviators. And by “can hardly wait,” I mean “will studiously avoid looking for, but will collapse in a fit of giggles if (when) I discover it exists, penned at the hand of an OTW writer.”

227. Seperis:

     I can see why that would be a concern, if one decided that a single person was representative of a massive group of people.

     I imagine it’s a concern because it’s not merely ‘a single person’ out of a ‘massive group’–it’s one of the five people on OTW’s legal committee.

228. Seperis – it is hard to understand, because most people who do something solely for the love of doing something, and have to work to pay the bills would want to be able to combine the two. If you would turn down a book deal in order to be better able to concentrate on your work, leaving writing fanfic as a hobby, that’s great. I don’t think that’s true for most writers of fanfic, even if you are the exception.

229. Cofax,

     in general, you’re correct. I’ll go find cases if you want me to, but you can get into a situation where your rights to copyrighted materials are compromised (particularly in terms of recovery) if you have made no demonstrable effort to protect it in an environment where everyone us freely using it.

230. gerrymander – I had much the same thought, except mine involved the lack of details in the sex scenes between Temeraire and his Celestial lover. Did Novik leave blanks in the story for fanficcers to write erotic fiction about their trysts?

     Your idea is better.

231. Tor @ 224

     First, I was responding to Julie’s characterization of fanfic as ‘kiddie food’, but in any event, frankly, I don’t believe you.

     I know you were responding to Tzikeh, vis a vis Julie, and I’m not qualified or even interested in addressing the arguments of fair use or IP law (other than agreeing that Copyright law in the US is very, very broken and does less to inure individuals against economic loss than it does insure corporations manage to control more and more common space until the public can’t wiggle lest they be slapped with a fine or lawsuit) .

     I have an excellent job, that I love, that pays me quite well, to the effect that I very possibly love coming to work as much as other people like going on vacation.

     I also write fan fiction. I write original fiction as well, but even with that, if you want to get down to brass economic tacks, people who seek publication probably have a lot of reasons to do so, including economic (being paid to write which they do anyway) and recognition and hopeful commentary — review …feedback if you will. There’s nothing wrong with getting your ego stroked when you write something that makes people happy, be it OMW or Good Omens. A healthy writer, I think needs a healthy ego — very much like an actor. Disappointment is as much a part of the gig as determination and perseverance.

     So, if you take away the economic bounty — of which, let’s face it, the number of writers — genre writers especially — who are making more than a middle to upper middle class living at their writing with a few exceptions (what is it? 5% of the published writers make 95% of the money?) isn’t all that huge a number. That our host can make a comfortable living is a wonderful thing. That JKR could hit that magic mark of talent, appeal, timing, and luck to make enough money to support a small country is incredibly rare.

     I’m not saying I wouldn’t like to be published — I would, but I wouldn’t necessarily be doing it for the money — I would, absolutely be doing it for the recognition, for the feedback.

     In other words, aside from my relentless inner drive to tell a story be it my own from top to bottom, or with characters or situations from a favorite TV show or movie, I’m already getting from fan fiction what has always been more important to me than the money (be it a modest but comfortable income or a JKR success story) — I get to tell a story and other people get to enjoy it and then we get to talk about it, and lather, rinse, repeat.

     On bad days at work, I tell myself that working is the means by which I support my writing habit. On a bad day of writing (and yes, I write every day) I remind myself that I have neither a deadline or an economic imperative to finish and edit my 40,000 word Supernatural story, thank God — that I won’t have to worry about how to pay the mortgage if my third book isn’t picked up.

     I’ve got nothing but admiration for people who write for a living — because if you do, as much fun as it is, it’s still hard work, and like any other job, it requires that you actually put in the hours (or one would assume for most writers — I’d hazard that John is actually pretty representative of a successful writer with a solid work ethic.)

     But I make a good living, probably on par with most mid-list writer and I’m good at what I do and I love it, and I get to write too, and get all the stuff out of my writing both in the give and the take between writer and reader that I really, really want…

     …and I see no bad here. Being published is awesome, but it’s not the end all and be all for every single writer.

232. To ScrewtheDaisies:

     I imagine it’s a concern because it’s not merely ‘a single person’ out of a ‘massive group’–it’s one of the five people on OTW’s legal committee.

     True. The problem is, that still, at least to me, doesn’t justify painting the entirety of fandom on the strength of a single member of single committee.

     Saying everyone has flaws would be disingenuous to this argument; a person accused of plagiarism does sit on the legal counsel, there’s no way to deny it even if I wanted to, and I’d be the last to do so. Four people including the chairman weren’t and never have been accused.

     So yes, I do understand the concern; it’s a concern that’s shared by a large number of fen who have been following along with this.

233. There is no more consistency in the law and the social context outside fandom about the appropriateness or legitimacy of fanfiction than there is consistency within fandom on any number of issues–including the etiquette of asking or not asking regarding fic or remixing…. In the absence of settled law, people make up their own rules, and they usually do so in furtherance of their own interests.

     I agree. I think I said almost as much regarding fandom/outside of fandom a hundred posts ago.

     When I wrote about “indifference to law and society,” it was a response to posts that at least appeared to take the position of “we’re our own subculture with our own rules and we don’t owe outsiders anything.” The problem that I have with that isn’t that it’s a scofflaw attitude–let me be explicit, if I haven’t been already: copyright law has become very broken and exceeded it’s original purpose as a compromise between an individual creator’s interests and the society’s interest in a healthy public domain.

     My concern isn’t that fanficcers might (note the emphasis) be breaking laws that I think should be changed. My concern is that a particularly indifferent fanficcer could end up being dragged into court (or used as an example on Capitol Hill) where his case makes bad law.

     People make their own rules in the absence of settled law, but eventually the law comes to the frontier. What happens when it does?

     I want fanficcers to keep doing what they’re doing–but I also want them to be good citizens of the creative world. I think fanfic is artistically legitimate but may not be legally legitimate–and I’d like to see that brought into accord. A member of the fanfic community who takes the attitude “We’re a subculture, we do our own thing and it works for us” is divorcing himself from citizenry and legitimacy, and (in my personal opinion) ultimately endangers the commons.

234. Tor:

     it is hard to understand, because most people who do something solely for the love of doing something, and have to work to pay the bills would want to be able to combine the two. If you would turn down a book deal in order to be better able to concentrate on your work, leaving writing fanfic as a hobby, that’s great. I don’t think that’s true for most writers of fanfic, even if you are the exception.

     I think we’re thinking of this in two separate ways; if someone wandered up and offered me a book deal out of the blue? Sure, I’d do it; I wouldn’t quit my job or stop school, however, so the likelihood of doing it would be problematic at best. If someone came up and offered me a deal to crochet blankets (another hobby)–again, yes. If one day I suddenly was attacked with the violetn urge to write something original and publish, I’d go for it. But these things aren’t goals, that fanfic is setting the stage for.

     The point being made is; those are incidental, sidebars, have nothing to do with what we’re actually doing. We’re engaging in our hobby, do so without any expectation of current or future gain. And I think a lot of what OTW wants is what we all want; the freedom to do what a gamer can do, a crocheter can do, a gardener can do without question.

     Now, having said that; why does it matter if it’s a hobby only or a hobby-with-a-goal? They’re equally legitimate reasons; both come from the same source, the same place, the same desire to tell a story. The only difference is an invisible and nebulous concept of a future goal.

235. The problem is, that still, at least to me, doesn’t justify painting the entirety of fandom on the strength of a single member of single committee.

     Please don’t be confusing OTW and fandom as a whole.

236. Phil B.@184:
     “Could someone explain to me why this is polite and expected, but it’s not “polite and expected” to ask the copyright holder before using their work?”

     I thought Kerry explained it pretty well, Phil — but let me take a stab at it, and make one additional point:

     The relationship between one fan and another within a fan community is different from the “relationship” that the fan or the community has to the rightsholder. (Indeed, I put that in quotes because it is not a given that there is any relationship beyond “we buy your books/watch your show”.) The fan relationship is much more small-scale and intimate, and it is commonly regarded as a relationship between peers — whereas, it is the rare fan who considers herself a *peer* of the rightsholder. (Ironically, fans and rightsholders often *are* peers in more substantive ways than either realizes.)

     The “currency” in a fan community consists of intangibles — reputation, feedback, popularity, status. Fans often liberally compensate the rightsholder commercially (by consuming their works), and they also often (though, let’s be frank, not always) compensate the rightsholder with (sometimes fanatically devoted) respect and status. Fans usually *don’t* compensate each other except with gifts — fic, art, or those other intangibles. (And in fact there’s a strong ethos against fans giving each other monetary compensation.)

     Please consider for a moment that every time a fan creates a fanwork and shares it publicly, she almost *always* trumpets the fanwork’s connection with the canon work. The rightsholders’ status is constantly reinforced, and indeed, can almost never *not* be, by virtue of the nature of the fanwork’s existence being dependent on the canon’s. I would argue that fans are strongly trained to give this acknowledgement to rightsholders, and can be subjected to significant negative (social) consequences if they fail to do it. But the fandom itself constitutes an umbrella of acknowledgement of the rightsholder’s status. You can’t *BE* in Harry Potter fandom without knowing that JK Rowling wrote the books.

     (A good example of times when a fan must learn, though, might be: say I decided to write a crossover fic using Harry Potter and, um… Milo and Tock from “The Phantom Tollbooth”. Fannish etiquette says that I must make very clear that it’s a crossover and identify the second canon property, especially if it is a semi-obscure one, in order to make it very clear that Milo and Tock and the wonderfully wacky world of TPT aren’t my own fecund creation. And that’s important because there have been HP fanfic authors who have done some fantastically imaginative creation using public-domain sources such as mythology as a leaping-off point. Give them their due, but if you borrow an imaginative world from a more obscure rightsholder, please don’t pretend it’s your own.)

     Therefore — the argued-for ethos that Fan A should always acknowledge that she is borrowing from or riffing on the work of Fan B is really just an extension of the bedrock fannish ethos that fanworks should always acknowledge when they are borrowing, period.

     Now… to be honest, the example that started off this whole mini-thread was, IMO, conflating two different ideas — a two-step process, that is. Acknowledgement is different from permission. Should Fan A always acknowledge if she is borrowing something from Fan B? Yes — to preserve Fan B’s status and to separate where Fan B’s work ends and Fan A’s begins (which is protective of the status of both). Must Fan A obtain Fan B’s *permission* to borrow or continue her work? Well… there, I’m afraid, you have hit upon a question that “the fannish community” is still grappling with. It would not be accurate to say that there is a firm conclusion one way or the other.

     It would probably be true to say that it *is* “polite and expected” — because of the fact that Fan A and Fan B are “peers”, while fans and rightsholders aren’t; and because Fan A and Fan B are within an intimate community, that the rightsholder is not a part of. And because the rightsholder’s originating status can NEVER be eclipsed… but Fan B’s can be.

     But… “polite and expected” is not the same thing as “it’s a rule”. There have been a number of kerfuffles in various fandoms over the version question of whether it ought to be a “rule”, and if so, why.

237. maygra – I don’t doubt that many, if not all, published and unpublished authors do what they do to primarily tell a story, and not for the financial gain. Absolutely, the core reason that most if not all of fiction and fanfic exists is because the author loved to write, and would do it without a paycheck.

     However, with regard to fanfic, if fiction written using other people’s characters and worlds (and specific plot) becomes legal to exist, it will necessarily be legal to sell. And that’s why I think the argument that fanfic is not written with financial gain in mind is hollow. Once there is a market where publishers can pay for it, there will be people willing to sell, as we’ve already seen.

     If I can write ‘The Sexual Adventures of Temeraire in China’ (or ‘Longwing Beast-Love!’) have have the right to do so, I can sell it as well. And while Novik may be comfortable with others writing material that is respectful, I have no doubt that she would object to the sale of either book I mentioned above. But if I have the right to use the characters, I have the right to sell the book.

238. Patrick M.@195:

     “My question to the FanFic/OTW people is – How would you feel if your story became real? The author/owner of the IP writes basically the same exact thing as you, yet you get no credit or compensation? What rights should you be entitled to at that point?”

     Well, one of the problems, Patrick, as you’ve probably guessed by now, is that even with the advent of OTW, it’s incredibly difficult to say that fans speak with a single voice. So, trying to speak in a limited way: for myself? I have always strongly believed in the idea that should a rightsholder happen to later publish something awfully close to something I once came up with, I wouldn’t be entitled to any rights. That is, presuming that it wasn’t a plagiarism. It is difficult for me to imagine a case in which what the rightsholder wound up publishing wasn’t different in many ways (form and execution) from exactly what I did, anyway. I don’t want to get into any battles over “you stole my idea! … and executed it quite differently”. What’s the point? If I’m writing in their world and/or with their characters to begin with, the likelihood of both of us coming up with similar ideas is fairly high.

     In fact, the only way it would worry me is if my work preceded the canon work — and I stood in danger within the fannish community of being thought to have written a too-close idea after the canon work is in circulation for a while. That is — folks might come to me and say, “did you see the latest book? it’s way similar to that fic you wrote!” And I’d say, “Yeah, isn’t that wacky? But they’re pretty different takes on the same thing, really.” But I’d be distressed if people came to me and said, “Hey, this fic seems like a direct rip-off of the latest book”, if in fact I had the idea “first”. (I put that in quotation marks because it can be impossible to tell when a rightholder conceived of an idea in relation to when they got around to writing and publishing a book about it.)

     In other words: I would be most concerned about my reputation *within the community*. If I felt that the shared idea was a good one, then I’d want some recognition within the community that, hey, I happened to come up with it on my own! Indeed, the fact that a rightsholder independently came up with the same idea might lend my reputation a certain additional shine (I must be doing something right, in my approach to this world, if my brain is running along such close lines to the rightsholder’s!). If I originally came up with my idea in order to make a splash within the community (that is, if I’m chuffed about my originality within the framework of the greater world of the fandom), then later I’d want to be sure people knew about that originality, rather than them thinking me terribly derivative (note that within a fandom, there are levels of derivation that are understood and that become transparent, or else desireable, allowing a relative appreciation of originality).

     But I don’t need the rightsholder to give me credit or compensation or rights, in order for what’s important to me (my fannish reputation) to remain intact. I personally am not into the idea of the rightsholder conferring status upon me with any sort of recognition. So it wouldn’t really matter to me; indeed, if I’m a fan of the rightsholder’s work, then I won’t mind at all if what they do with the idea ends up being better (IMO or in others’) than what I did.

     Caveats abound, though. This is just me. I know there are people in almost every fandom who put a great deal of value on recognition from the rightsholder/s, and who feel that status is conferred by that. Such people might desire credit (even informal) from the rightsholder, or even just acknowledgement. And of course, others in this very long comment thread have already alluded that there have been regrettable cases in the past where fans wanted rights and compensation when they felt that rightsholders used their work in some form (whether they truly had a case or not).

     I can’t do anything about the former type of fan. There will always be disagreement within the fannish community about whether contact with and recognition by the rightsholder/s is a good thing or a bad thing, desireable or to be avoided. About the latter, I would say that that type of fan has always been in a distinct minority — but I don’t think Scalzi is necessarily paranoid to muse about whether there’d be an increase in that type of fan if the status of fanworks was changed. (I’m an OldSkoolFan, having been in fandom for nearly 30 years; I was raised in a certain way in the mores of the fannish community. I can’t pretend that time doesn’t march on, and that successive generations won’t redefine “community standards”, or that I can successfully impose on them the mores that were standard when I was a wee thing.)

239. Seperis:

     Jessie (#182) painted the entirety of fandom with a broad brush when she/he said, “Plagiarism is not tolerated.” STannig (#221), by pointing out that heidi8 is on the legal team, showed that Jessie’s painting of fandom was overbroad. In other words, Jessie actually did what you’ve accused STanning of doing, not STanning.

     On a related note, however, how suprised would you be to find someone outside of fandom (particularly if they’re anti-fanfic) coming to this conclusion: “OTW has a plagiarist on their legal team–they must support plagiarism”? I wouldn’t be the least bit surprised. It doesn’t stand out as OTW’s best decision.

240. I can hardly wait until someone writes about the *real* reason Longwings choose female aviators. And by “can hardly wait,” I mean “will studiously avoid looking for, but will collapse in a fit of giggles if (when) I discover it exists, penned at the hand of an OTW writer.”

     Are you under the impression that Novik would object? People do write fanfic for Temeraire, and Novik has publicly stated that she’s thrilled that they do.

241. Seperis:

     I think we’re thinking of this in two separate ways; if someone wandered up and offered me a book deal out of the blue? Sure, I’d do it…

     Well, that’s really my point. If your fanfic has a right to be published on the internet, it also has a right to be published in a book/anthology. So if FanFic Publishing House finds your work, thinks it’s amazing, and offers you $0.10 a word to publish it, I imagine most, if not all, writers of fanfic would agree to do so. And that is the inevitable product of legitimizing fanfic – fanfic authors will be compensated for their work – and the person who created the characters and the world, did the work of marketing it and publicizing it (or at least their advance was prorated for these costs) so that there was a market for the fanfic, gets left out in the cold.

242. Cofax @203:

     “first, the number of individual (living) authors who are subject to this is vanishingly small: Rowling, Bujold, and Pratchett are the only ones I can think of where the stories written based on their work totals more than a couple dozen.”

     MZB (though, granted, it’s a good question whether Darkover fandom is *still* alive or not; does any fandom ever truly die?). McCaffrey (Pern fandom is alive and well, although it is an unusual case of an author largely managing early on to steer her fandom into “just use my world, never my canon characters” waters; I often wonder whether there isn’t canon-char Pernfic out there somplace, though, just as I’ve wondered that about Rice’s work). WaRP and ElfQuest (hey, that’s partly a written work, and partly a graphic work; there are/were commercially published prose novels; and anyway, it’s not a tv show or movie).

     (But that’s a modest number of additions, and while we could have interesting side discussions about their specific relationships to fandom, I don’t think it adversely impacts your point.)

243. Lydia:

     Yes – I have made that assumption, due to the way Novik seemed to intentionally avoid providing details as to what happened (sexually) between between the two dragons, nor do I think that Longwing/human sex is what she has in mind. For the first, I think she believes that Temeraire is entitled to his privacy, and for the second, well… there aren’t a lot of defenders of beastiality fiction out there. I just assume that Novik isn’t one of them.

     Nor do I think she would want me receiving advertising revenue from writing either book, or publishing it though print on demand. All of which would be direct consequences of my having the legal right to using her characters. And finally, I think that both books/stories would, in her opinion, not be according to canon.

244. To ScrewtheDaisies:

     On a related note, however, how suprised would you be to find someone outside of fandom (particularly if they’re anti-fanfic) coming to this conclusion: “OTW has a plagiarist on their legal team–they must support plagiarism”? I wouldn’t be the least bit surprised. It doesn’t stand out as OTW’s best decision.

     Surprised? No, I wouldn’t be, just like I’m not surprised by any person creating stereotypes based on inadequate information. The same concept, though, is in effect when someone anti-fanfic stumbles across *anything*–be it pairing, slash, underaged, whatever the flavor. They aren’t going to like it anyway. OTW’s legal team isn’t a *reason*; it can, however, be an excuse.

     Jessie (#182) painted the entirety of fandom with a broad brush when she/he said, “Plagiarism is not tolerated.” STannig (#221), by pointing out that heidi8 is on the legal team, showed that Jessie’s painting of fandom was overbroad.

     How overbroad? Fandom does not tolerate plagiarism. That doesn’t mean that every individual in every part of it actually *obeys* that. Just like any organization on earth, there are people that don’t, for whatever reason, follow the conventions of their organization, breaks them. So yes, we can say comfortably that plagiarism isnt’ tolerated; like any group, we have exceptions.

245. there aren’t a lot of defenders of beastiality fiction out there. I just assume that Novik isn’t one of them.

     You don’t have to defend the content of a story to defend a person’s right to write it. I imagine her response would be along the lines of, “Wow, really not my cuppa, and I won’t be reading it, but have fun and I’m glad you like the books!”

     But perhaps she’ll come back and let us know herself. Anyway, it would be nice of you not to just assume that a person’s a hypocrite.

246. However, with regard to fanfic, if fiction written using other people’s characters and worlds (and specific plot) becomes legal to exist, it will necessarily be legal to sell.

     Why? You’ve stated this several times.

     How is this a necessary corollary to allowing fanfiction to be allowed to be produced?

     I can make beer in my garage. I can’t sell it without jumping through quite a number of legal hoops.

     The rights associated with fanfiction are derivative, and it’s entirely possible to create a structure by which derivative works can only be sold for profit with the original creator’s permission–oh, wait, that’s what we have now! Fancy that.

     Getting paid for fanworks is not in the cards, and it’s not on OTW’s platform.

247. Tor @224:

     “First, I was responding to Julie’s characterization of fanfic as ‘kiddie food’, but in any event, frankly, I don’t believe you. While legitimacy is irrelevant to pay, who does not want to get paid for doing what they love? That’s the dream of every working person in the world – what if I did ____? – something that I truly love to do.

     And since the vast majority of fanfic writers truly love what they do, I can’t imagine that there is a single one who has not lain awake at night, thinking that ‘if JK Rowling found my fic, and wanted to publish it in an anthology, do you think I could get paid for it? Enough that I could quit my job as a barrista, and just write for a living?’”

     Tsk. You have a terribly limited view of fans and why they do fanwork, Tor.

     There are fans who are *published authors* in their own right who do fanfic in other properties for fun, on the side. Some of them *did* get their start in fandom… maybe some didn’t. We applaud the ones who did; but that doesn’t mean the rest of us want to follow the same path.

     I’m a professional in the academy who loves her job (within reason). I’m an artist who has been paid to do commission and published work. I do fanart for free. I also write fanfic. If someone told me tomorrow that I could quite my professional job and take up *either* writing fiction full-time or doing art full-time, and be assured that I would make enough money to enjoy the same standard of living (and have the same amount of free-time to socialize and engage in hobbies!) that I now do… would I?

     I am being entirely honest with you, Tor, when I say: I’m not sure. I *have* been paid to do art on occasion. But the truth is — doing art for a living or writing for a living can also be a grind. Right now, it’s fun because I don’t *have* to do it.

     Maybe I truly do want to keep those activities FUN, and also continue to do the enjoyable and fulfilling professional work that I do for a living.

     Who are you to tell me that you KNOW I would do differently?

248. Lydia:

     Well, I don’t believe she is a hypocrite. I really don’t know what she’s said about fanfic, other than she is generally in favor of it. But I don’t know whether she has set any limits as to what she believes people should write, or what those limits are (i.e. she could have set McCaffrey type limits). Nor do I know whether she has set any limits on people profiting on work using her characters.

     I don’t think the purpose of OTW is for people to be able to sell works using other people’s characters – however, I think that it is a consequence. So Novik could disapprove and work to shut down my DragonSex books, while still not being a hypocrite, so far as I know.

249. Stop using Rowling as the economic impact example. Most authors do not make millions in sales on the release day. That far end of that bell curve is useless. The ones at greatest risk of product confusion in the market are on the other end.

250. Tor @ 237 And while Novik may be comfortable with others writing material that is respectful, I have no doubt that she would object to the sale of either book I mentioned above. But if I have the right to use the characters, I have the right to sell the book.

     Except I don’t actually feel that way. Using the characters is not the same as owning them. Using them is very much along the lines of owning the cool Star Wars actions sets and acting out my own adventures. And I do own those figures, but I don’t own the right to make or manufacture more of them and sell them. But I can certainly share them.

     I feel like you entirely missed the point where a good many fans, in fact, most of those who I interact with on a regular basis, really are not in this for the money. Not that some fans haven’t been known to pursue that course — usually with a good deal of condemnation of their peers.

     So, honestly I don’t really agree that use = ownership, and I do think that ownership does confer economic rights.

     One of the key things I like about Creative Commons as a concept is that allows for non-commercial derivative rights and distribution, allowing the original “owner” to retain the economic viability of their work, but guaranteeing no such economic boon to those who want to play — to do so would require a different kind of contract, which one would hope would be mutually beneficial.

251. Sgaana:

     I addressed this again later – but my point wasn’t to say that you would absoposolutely quit your job – just that the thought has crossed your mind. If it hasn’t, I apologize.

252. Let me state this here:

     If someone from a publishing firm showed up and said, “Let us take your apocalyptic Stargate novel and publish it and pay you lots of money and we won’t change a word and you don’t have to do anything!”–well, I might accept that. That’s about the only circumstance I can think of where I would be interested in selling my fanfiction. (Assuming it were legal and authorized, of course.)

     Because real-world publishing? Is way too much work. You have agents and query letters and notes from editors; network/studio approval of the content; reset buttons and consistency with canon; contracts and lawyers and fees and royalty schedules; and deadlines.

     Gah! I have enough deadlines in my quite well-paid professional life. I have contracts and policy issues and constraints and editors and all the rest at work! Why should I subject myself to all of that as part of my hobby, when I can write stories and publish them immediately for the fun of sharing them?

     One of these days I might get around to writing something I’d like to sell. But that is in no way the point of what I’m doing now, and I really wish to god someone would believe it.

253. Seperis:

     Here we go again. You accuse people of “painting the entirety of fandom” when they point out a detail about a member of the legal team, and then you make your own blanket statement – “Fandom does not tolerate plagiarism.” It’s okay to speak for the entirety of fandom when you speak, is that it?

     This banging-my-head-against-a-rock-wall feeling has become all too familiar in OTW discussions these past few months.

254. Tor: I was addressing the sense I got from gerrymander’s comment (and your agreement with it) that it would serve Novik right if somebody wrote squicky Temeraire fanfic. Which, no, it really wouldn’t, because she is in favor of their right to do so. There’s just no irony there.

     The commercial aspects are a different question. Despite numerous assertions here, it’s not clear that legal status for noncommercial fanfic automatically equals legal status for selling it. As you say, that isn’t OTW’s position.

255. @ Seperis/232:

     True. The problem is, that still, at least to me, doesn’t justify painting the entirety of fandom on the strength of a single member of single committee.

     I didn’t read that as what she was saying.

     It is perfectly reasonable to assume that if an organization appoints someone to its legal team, it’s an acceptance of their past behavior re: legality.

     Maybe not. I’d like to think any organization would familiarize themselves with an individual’s policies and past behaviors where they relate to the area they intend to appoint that person to, but maybe they don’t. I’d also like to think that, assuming they are familiar, their reasoning is more sound than “well, their behavior in the past reflects attitudes we do not tolerate or encourage…but let’s just see”, but maybe not.

     However. I see nothing wrong with assuming a member of the legal team is an accurate representative of an organization’s legal attitudes; otherwise why appoint them to the committee?

256. Cofax – I believe you, and my point wasn’t that every fanfic writer is writing to get a book deal. Just that if it were legal to publish and sell fanfic without the author’s permission, many would do so.

     And CC is an excellent example. If Novik or any other author were to publish under a modified CC license which allowed for reuse of the characters, fanfic writers could play to their heart’s content.

     But my impression of the comments of many of the people here is not to push for this, but rather to have the freedom to do so without having a CC license in hand.

     Increased use of cc licenses by authors would solve many of the explicit goals mentioned here.

257. if fiction written using other people’s characters and worlds (and specific plot) becomes legal to exist, it will necessarily be legal to sell

     Why?

     Sex is legal between consenting adults. They’re not allowed to buy or sell it (except in very limited circumstances in one state).

     Having babies is legal. Selling them is not. (There are “host mothers”, paid for the efforts of pregnancy–but it’s a very important legal point that you cannot buy the baby; you’re purchasing some intangible rights to make decisions for the baby.)

     Giving your kids cough syrup is legal. Giving the neighbors’ kids cough syrup, also legal, presuming the neighbors don’t object. Selling cough syrup to kids in single doses? Practicing medicine w/o a license, very illegal.

     Helping your friend get over her breakup with That Creep? Legal.Offering to help strangers get over their breakups for $50/hour? Better have a counseling license.

     Plenty of activities are legal for private individuals to do, yet become illegal or bounded by complex business laws if they want to sell them. The idea that everything that’s legal, is legal to do for profit, is part of the ridiculous marketplace-ideology that fanfic exists outside of.

258. Wow, that was an elfwreck of analogies, none of which have to do with intellectual property.

     Even though IP has property right there in the name, it isn’t the same.

259. “However. I see nothing wrong with assuming a member of the legal team is an accurate representative of an organization’s legal attitudes; otherwise why appoint them to the committee?”

     The SFWA mess has the best example of that ever.

260. Just that if it were legal to publish and sell fanfic without the author’s permission, many would do so.

     Maybe: many would try, anyway, but as Sturgeon’s Law comes into play, few would succeed. But you keep assuming that making fanfic legal to sell is one of the community’s goals (inasmuch as there is a community), and I have to say, it’s really not.

     Fandom generally understands that keeping money out of the equation has been one of the reasons why we’ve been left alone by the copyright-owners for so long. Putting the commercialization of fanfic on the table would be counter to the entire intent of OTW’s existence, because it would put fans in opposition to copyright-holders rather than subordinate to them (in terms of derivative rights).

     And yes, CC licenses would be wonderful: pity more people don’t use them.

     And as I said before, selling writing is a lot of work; if we can get the feedback and the ego-strokes by publishing for free, as Maygra pointed out, why bother with trying to sell it?

261. Tor:
     So if FanFic Publishing House finds your work, thinks it’s amazing, and offers you $0.10 a word to publish it, I imagine most, if not all, writers of fanfic would agree to do so. And that is the inevitable product of legitimizing fanfic – fanfic authors will be compensated for their work – and the person who created the characters and the world, did the work of marketing it and publicizing it (or at least their advance was prorated for these costs) so that there was a market for the fanfic, gets left out in the cold.

     There are already venues for fanfic writers to appear in print (or on CD PDF format). Those venues are called “zines”, short for magazines generated by fans who compile, edit, format and print stories of various lengths by different fanfic writers. Some zines have single novel length, illustrated stories instead of anthologies.

     Is there profit in being a zine publisher? The contributers (as far as I know) do not get paid money. They are paid in copies, and the resultant status for appearing in print. And these zines, because of the cost of printing, paper, and ink and mailing and agents who take them to various conventions, can be very expensive. You can buy them on websites, eBay, and at conventions.

     I’ve never heard of a zine publisher getting rich on what they do – it is a labor of love, determination and very strong hair-roots. But the point is, there’s already an infrastructure there, or developing, for online for-profit fanwork.

262. Eric N, I sincerely doubt that any of the IP owners of fandoms Seperis writes in will take her to court, unless they are visited by self-destructivene impulses. Her past work is a gateway to several closed canon fandoms which have current economic viability largely because of the existence of quality fanworks and her current work made me, at least, hang on to a series still in production long enough for the writers to come up with episodes worth viewing on their own merits.

     There’s a key point many of the rabidly anti-fanwork people in this thread seem unaware of. The Powers That Be in media fandom are, for the most part, aware of fanfic, amused by stories of its loopier aspects, and view it as a form of free advertising which keeps dvd releases, action figures, comic books, and con appearances making money long after production ceases.

     With Six You Get Eggroll got mentioned above; it was my introduction to Due South fandom when it was recommended on Fourteen Valentines (an annual fanworks community on Live Journal which raises money for women’s charities and consciousness about women’s issues). This Christmas, the full series of Due South dvds are at the top of my Christmas list, along with Wilby Wonderful; I’m planning to go to BC to see Paul Gross’ movie Passchendael if it doesn’t get US distribution. Money flows toward the creators, in this case, soley because excellent fanfic writers “played in their yard.”

263. Well, if commercialization is *not* something that the fanfic community wants on the table, why not make the explicit purpose of OTW the promotion to publishers of CC licenses that explicitly allow for the non-commercial use of derivative works? Has such a cc license even been written? I imagine Novik would be an early adopter.

     You could work with Stross and Doctorow to show how their works have benefitted, and you could use all the arguments about fanfic being a net positive.

     After all, almost ALL of fanfic is written with the author’s permission (Rowling, Prachett, McCaffrey, etc.), so once you convince the publishers, the authors will surely agree. And the publishers will agree because it will make them more money!

     And you don’t have to change the definition of fair use to do it….

264. tzikeh,

     I had bowed out of this conversation last night, both because it was getting late and because the mood of the room had shifted. But after rereading your post (#173), I wanted to make a few comments.

     This list is by no means comprehensive, but–many women saw the close male friendships on the television shows as homoerotic, or at least homosocial.

     Men and women are different. I don’t think anyone will argue that point, at least I hope not. That’s a can of worms I really don’t want to open. We think differently, we react to situations differently, and we interact differently. Yes, you can find men that act like women, and vice versa, but I’m speaking as a whole. And because we are different, there can be misunderstandings.

     To take your first observation; the appearance of a homoerotic relationship in a cop buddy show, underscores this difference. Men relate to each other in ways that women don’t. If I’m feeling especially juvenile I might say “Pull my finger” to another man, but it’s a rare woman I’ll say that to, and it will only be after a long period of getting to know her and confirming that she’ll find it funny. With a man I can generally as rude and crude as I want to, while in a woman’s company I’m on my best behavior. There’s a great deal of freedom in such a relationship, since you can let your guard down without fear of consequences. It’s comfortable, nothing more, and I don’t understand why some women want to read more into it.

     As for it being homosocial, I’m not exactly sure what you mean by that. In fact I had to look the term up. If you mean that it seems like guys seem to like hanging out with other guys, then yeah, you’re right. We generally do. Like I said, it’s often easier. We often have similiar interests, tastes, and temperments, so it makes sense. If nothing else, it gives us a chance to vent about the women in our lives. It’s not like you ladies don’t do the same about us.

     So many “buddy” shows (cop partners, detectives, spies, etc.) would have a “girlfriend of the week” for one of the two male leads, but he always left her at the end of the episode–but would never abandon his partner. They would also choose their close friendship over a woman any day.

     I’d argue this has more to do with the show’s sticking to a proven formulae that works, as well as not wanting to add the cost of a recurring character to the budget, than anything else.

     Now I will admit there are many guys who will say; “Women may come and go, but friends are for life”. If you’re not in the market for a serious relationship this philosophy makes sense. I’m not sure I subscribe to it, but that’s me. You also have to factor in that a cop needs to know that his partner will have his back in a life-or-death situation, because the stakes are simply too high. Not homoerotic, just practical. The same holds true for a soldier, spy, or even an officer in Starfleet.

     It certainly leaves room for interpretation that they might have had feelings for one another that ran deeper than they were willing to admit, which in a male/female fictional fictional relationship would always lead to the two of them falling in love in the end. Why not for two men?

     I think this is a case of wanting to find something that isn’t really there. Like I said, men and women are just different. Sure if it was a male/female pairing they’d fall in love, but it’s not. That changes the dynamic of the story.

     Women’s friendships are (generalizing here) very physically and emotionally open; we hug, kiss, cry on one anothers’ shoulders, etc. When we look at male friendships, we see none of this. Some of us want to see that barrier break down.

     Why? I agree with your assessment of women’s friendships, but why should we males react the same way? It’s not who we are, and all the wishing in the world isn’t going to change that. It’s not about “breaking down barriers”, we simply don’t want to kiss and cry on each other’s shoulders. Now, we do occasionally hug, but never more than three seconds, and always patting the other guy on the back hard enough to leave a bruise.

     Hey, it’s in the guy rulebook. : )

     Besides, I would have thought that after the failed experiments of “The Sensitive Man” of the 80’s, and the “Metrosexual” of the 90’s, women would have had enough of trying to turn us into facsimilies of themselves. Can’t we just drink beer and watch football in peace?

     Some of us want to explore the idea that social indoctrination is what has restricted these characters from further exploring their very, very close friendships. Sometimes it’s so blatantly there that we can’t imagine why other people can’t see it.

     Can you give me a specific example?

     And sometimes, we just like the idea of two very handsome men having sex together.

     Now this I find a lttle surprising, because every time the topic has come up with female friends they’ve shuddered in disgust and said “Ooh, ick!”. Not once has a woman said to me “Yeah, I’d like to see that.”

     An example – after Aaron Sorkin left The West Wing, the show foundered because he had such a distinct voice that the next season didn’t feel, or sound, like The West Wing, until an episode called “The Supremes”, written by Debora Cahn. She understood Sorkin’s writing style, she understood the characters, she understood the pacing and the feeling and the atmosphere of the show, and after it aired, all of the West Wing fans got online and raved about how good it was. What she did? Was HARD.

     I’m a huge West Wing fan, and I agree with everything you’ve said. I’ll even agree that copying someone else’s style effectively is hard. In Ms. Cahn’s case, however, she was getting paid to do that, with the express permission of the creators. Yes, she did a great job. But that doesn’t make her a fanficcer, it makes her a staff writer.

     I’m sorry, but on this one point I will not budge. I have much more respect for someone who can create original fiction that I do someone who copies another’s works. It’s that simple.

     Your question is one fanfiction writers have been getting for ages. The simple answer is, because we want to play in a universe we know. I want to go swimming. Why should I build a whole new swimming pool if there’s one in my backyard?

     Because, to use your analogy, the swimming pool isn’t in your backyard. It’s across town and costs $7.50 to get in. Fanfic is no different than sneaking in after hours to go skinny-dipping. You can argue that no one is getting hurt, that the pool was just sitting there and no one was using it, and maybe you’re right. That doesn’t make it legal however, and doesn’t address the liability issues in case things go awry.

265. Ed Bartlett:

     Not once has a woman said to me “Yeah, I’d like to see that.”

     Yeah, I’d like to see that, and so would many of my women friends. Live and learn.

266. @ Ed Bartlett/264

     But that doesn’t make her a fanficcer, it makes her a staff writer.

     No one said it made her a fanficcer, tzikeh said it was analogous to what fanficcers do.

     Not once has a woman said to me “Yeah, I’d like to see that.”

     Yeah, I’d like to see that.

     And I’ve never understood people who feel the need to treat male and female friends differently.

267. Heidi,

     And I’ve never understood people who feel the need to treat male and female friends differently.

     Because (and yes, I’m generalizing here) what we call “guy talk”, i.e. putting each other down in that constant struggle for dominance, women take as mean or spiteful, even something as innocuous (to us guys) as “Hey asshole, what’s your problem?” Which could mean either A: “Hey buddy, what’s the matter?”, or B: “If you don’t knock it off I’m going to kick your butt”, depending on inflection and the situation.

     Now I’m not into the whole dominance thing myself, generally I just refuse to play. But I view it the same way I view a physical altercation: I may dislike fighting, but I dislike getting my ass kicked even more.

268. Ed:

     Because (and yes, I’m generalizing here) what we call “guy talk”, i.e. putting each other down in that constant struggle for dominance, women take as mean or spiteful, even something as innocuous (to us guys) as “Hey asshole, what’s your problem?” Which could mean either A: “Hey buddy, what’s the matter?”, or B: “If you don’t knock it off I’m going to kick your butt”, depending on inflection and the situation.

     At least you admit it’s a generalization.

     I’m very glad it isn’t actually true that women can’t handle innocuous put-downs; if it were, for the amount of times I refer to my closest friends as “whores” and “stupid sluts” and the like, I wouldn’t have any friends left.

269. Generalizations about men and women always fail, and are seldom useful or accurate.

     At least that’s one guys’ perspective.

270. I should add that particular stereotype, that women can’t take a joke if it’s got an insulting edge, is right up there with “don’t hit girls” and “women don’t like porn/sex” as stereotypes I really, really wish would just go away already.

271. Heidi,

     I should add that particular stereotype, that women can’t take a joke if it’s got an insulting edge, is right up there with “don’t hit girls” and “women don’t like porn/sex” as stereotypes I really, really wish would just go away already.

     I’m not talking stereotypes, I’m talking personal experience here. If I call a guy a bastard or an asshole, generally he’ll respond in kind. If I say the same to a woman either I’ll end up hurting her feelings or she’ll get pissed, and there will be payback. Either way it’s just not something I want to do.

     As to you calling your friends sluts or whores, these are your female friends (cause it just doesn’t make as much sense the other way). Do you make the same sort of comments to your male friends? Because rightly or wrongly, once you cross the gender barrier either way, the rules change.

     And I’d argue that hitting girls is not a stereotype, but simply civilized behavior. There are few women that I couldn’t seriously injure if I were to go that route, not because I’m some big scary guy (5’9″) but because most women lack the physical strength and fighting skills to compete physically in a fight.

     Besides, I’d go to jail. No thanks.

272. I mean not hitting girls. My bad.

273. Ed:

     It’s stereotyping when you say “women”.

     As to you calling your friends sluts or whores, these are your female friends (cause it just doesn’t make as much sense the other way). Do you make the same sort of comments to your male friends?

     Yes.

     but because most women lack the physical strength and fighting skills to compete physically in a fight.

     Stereotype.

274. No, documented fact. Look up the men and women’s Olympic records for any sporting event. And while there are definitely women out there who could clean my clock (I’ve met some), they are in the minority.

275. The Olympics have very little to do with socking someone in the nose.

     Assuming that any given woman you befriend will be unable to handle being called an asshole is a stereotype. Assuming any given woman you throw a punch at won’t be able to hit back is a stereotype.

     Sexist stereotypes that are ingrained in common thinking to the point they’re not questioned are still sexist stereotypes.

     And on a semi-related note, the men in my life who subscribe to these stereotypes generally see a slightly different side of me than men who don’t. So while it’s very possible no woman you’ve ever brought porn up with has liked the idea of m/m sex, it’s also possible it’s not something they felt your attitude warranted them sharing that with you.

276. she was getting paid to do that, with the express permission of the creators. Yes, she did a great job. But that doesn’t make her a fanficcer, it makes her a staff writer.

     I’m sorry, but on this one point I will not budge. I have much more respect for someone who can create original fiction that I do someone who copies another’s works. It’s that simple.

     First you say she did a great job that took skill. Then you say that creating original fiction is worth more respect… but what she did, wasn’t creating original fiction–it was copying someone else’s characters, settings, literary style, and story arcs.

     Does paying for it make it legit? Is it okay to copy someone else’s works if you get paid for it, but it becomes immoral and less skillful if done for free for one’s own benefit?

     Also: you’re saying “copy,” as if there were no changes being made. I think we all agree that it takes no great skill to copy someone else’s work. But to build on it–to imitate their style and tone, to accurately portray their characters in a new setting–those take literary skills.

     Anyone can making a convincing original character who’s homeless and hungry and steals from random strangers. Making a convincing Legolas who’s a homeless thief takes a lot more skill.

     Do you make the same sort of comments to your male friends?

     Of course not.

     Men are fragile. They generally collapse when confronted with the sharp practicality that most women share amongst themselves. Gorram egos built on eggshells, most of ’em… women have learned to put up with lousy cooking and lousy sex because that’s a lot less hassle than telling them what it’d take to get them to actually improve.

     Men can take any level of insults if they think it’s entirely in jest. If he thinks she really considers him a bastard, a slut, a mediocre chef, in need of a few pointers in the bedroom… gaaaah.

     Women, I can relax with. Men, I handle with kid gloves; the meltdowns are too messy otherwise.

277. Heidi,

     The Olympics have very little to do with socking someone in the nose.

     I think the US Boxing team would disagree. It’s the very reason there are weight classes, to level the field. Otherwise you’d be pitting heavyweights and bantams in very lopsided matches.

     Assuming that any given woman you befriend will be unable to handle being called an asshole is a stereotype. Assuming any given woman you throw a punch at won’t be able to hit back is a stereotype.

     I prefer to err on the side of caution. If she’s my friend I don’t want to hurt her feelings or piss her off. Now if we’ve built up a relationship where we can banter like that, that’s different. But most women I know don’t care for it.

     As for hitting women, I don’t. Period. I have a sister who thinks of herself as quite the spitfire, and due to the steroids she takes for health reasons has biceps most men would envy (they also makes her a very angry person, but that’s a seperate issue). The last time we got into a physical altercation I simply bear-hugged her and waited until she tired herself out. Didn’t even work up a sweat. I did get a couple of bruises for my troubles, but that was incidental.

     So while it’s very possible no woman you’ve ever brought porn up with has liked the idea of m/m sex, it’s also possible it’s not something they felt your attitude warranted them sharing that with you.

     Maybe. I’m not a mind reader.

     Elfwreck,

     Men can take any level of insults if they think it’s entirely in jest. If he thinks she really considers him a bastard, a slut, a mediocre chef, in need of a few pointers in the bedroom… gaaaah.

     Women, I can relax with. Men, I handle with kid gloves; the meltdowns are too messy otherwise.

     For the simple reason the men and women communicate differently, and often mean entirely different things while using the same exact words. We complement each other, with different strengths and weaknesses. Which means that a comment coming from a guy has an entirely different context when it comes from a woman.

     For example. If I’m cooking dinner and my buddy says, “Man, this sucks,” I’ll generally shrug and admit I’m a lousy cook, because his comment I can usually take at face value. If a woman says it, she’s generally not simply saying my culinary skills leave something to be desired. There’s a great deal more subtext going on with her comment. She might be pissed at me because I didn’t do the laundry. Maybe she had a crappy day and is taking it out on my cooking. Or maybe she’s frustrated with me because she doesn’t think we’re communicating enough. Or, maybe she just doesn’t like the food, but I’ve learned the hard way not to assume that.

     Like I said, when you cross the gender barrier the rules change.

278. JESR, first of all, your doubts about whether an IP owner will take someone to court are irrelevant to the issue. Sorry. Whatever the status quo may be right now, that could change on any given day. Second, the history of IP owners acting in their long-term best interest is spotty at best–the RIAA certainly hasn’t gotten any good publicity from suing small children and grandmothers, but it hasn’t stopped them from doing it. At least one company with IP interests (Sony) has simultaneously sold IP-protecting and IP-violating hardware and software. Your assumption about what an IP-owner will do is purely hypothetical and assumes the IP-owners are more intelligent (or consistent, or self-aware) than recent history supports.

     In any case, you don’t buy car insurance because you plan on having a wreck, or carry a spare tire because you intend to have a flat. Putting yourself in a position where you have the strongest legal arguments possible just in case companies with a history of suing their customers turn on you is mere pragmatism; hopefully, you’re right and it’ll never actually end up in a courtroom. But if it does….

     Anonymous: you’re right that Rowling is a bad example because she blows the curve. But it’s also possible that marginal authors benefit from derivative works more than Rowling-end authors, since derivatives (including fanfic) may be a form of advertising. Naturally, this is a hypothesis that would need to be tested….

279. Ed:

     The weight classifications are based on more than just “you look kinda weak” or “you’re a ______ so you can’t possibly be as strong as this guy, who’s ______”. They’re based on, y’know, weight.

     “You have a vagina so you can’t fight back” is sexism, not on par with ensuring a sporting competition is a fair fight. It’s big-strong-man condescension.

     If a woman says it, she’s generally not simply saying my culinary skills leave something to be desired. There’s a great deal more subtext going on with her comment.

     Perhaps you should find women who know how to say what they mean. The fact that the company you keep fits your stereotypes and supports your sexist worldview doesn’t change that they are stereotypes and you keep spouting sexist bullshit.

280. Tor @ 251:

     “I addressed this again later – but my point wasn’t to say that you would absoposolutely quit your job – just that the thought has crossed your mind. If it hasn’t, I apologize.”

     The way you opened your statement was, “in any event, frankly, I don’t believe you. While legitimacy is irrelevant to pay, who does not want to get paid for doing what they love? That’s the dream of every working person in the world – what if I did ____? – something that I truly love to do.” — the “frankly, I don’t believe you” is pretty confrontational, while the rest misses the point that I was also trying to make: sometimes getting paid for doing something you love turns it into a grind, an obligation; into something not-fun. And then you made a crack about baristas… which isn’t very respectful to your audience.

     As to whether or not any producer of a fanwork has ever *daydreamed* about someone swooping in and offering them wider public recognition plus money for a thing that *at the time* they did without expectation of remuneration — what has that got to do with the overall argument? Might we agree that one is entitled to one’s daydreams, no matter what they may be (“… and I’d like to thank the Academy; and finally, Mom and Dad…”), without that being taken as evidence of what one *WILL DO*, in terms of real-world action?

     I mean, come on — have I engaged in the Academy Awards daydream? Of course. Have I made one iota of effort, ever, towards any career that might put me in the position of actually winning an Oscar? NO. The same may be said about any number of Olympics Gold Medal daydreams that I have had without possessing much of any athletic skill. So I don’t see how anyone’s daydreams threaten rightsholders.

     Some other things your analogy misses: in the daydreams you go on to describe in more detail in response to other posters, you set up a scenario with two key features. First, a rightsholder swoops down on the fan-writer and offers to publish the work; second, it’s an already-published work.

     Both of these details mean that the fan in your scenario isn’t necessarily setting out to become published, and the sense of competition with the rightsholder is lessened if the rightsholder herself is doing the seeking and making the offer. (It’s very different from what seems to be the unconscious nightmare scenario of some rightsholders: that a fan will solicit a publishing house to publish a fanwork in order to supplant the rightsholder’s legitimacy.)

     As a perhaps more instructive, real-world example: the Stargate franchise (owned by MGM) early on contracted with a writer to produce a series of tie-in novels. These can still be bought from places like Amazon, but they were not particularly well-received by the fandom, overall; they were considered to be good, but not great, and not necessarily worth spending money on, and that got around by word of mouth. MGM discontinued the series after 4 books.

     Several years later, a UK company called Fandemonium (www.stargatenovels.com) popped up and negotiated with MGM to start producing a series of tie-in novels for both Stargate shows. As the name implies, these novels are (mostly, but not entirely) written by fan-writers. While I don’t have anything like sales figures handy, the SG-1 series is up to 13 books, and the SGA series is up to 8, which at least suggests they enjoy greater success and popularity than the first run of tie-in novels.

     When Fandemonium got started, it solicited pitches from fans for gen works to fit into the series. I can’t tell you in more detail what went into making a successful pitch, because while I know some folks whose work was selected, I haven’t discussed the process in detail with them. But that’s kind of my point — Fandemonium, with MGM’s (the rightsholder’s) approval, gave Stargate fans the opportunity to do what they loved for money and “legitimate publishing”. Did Fandemonium receive a flood of pitches? Yes. But, did *every* Stargate fan-writer make a pitch? No.

     Why not? Many reasons. The novels are gen; some writers prefer slash, or “ship” (heavily romantically-slanted stories). Lots of writers may not have felt like trying to write a story that was novel-length, even though they knew they were capable of it. Maybe some writers didn’t feel they needed or wanted to jump through any hoops, or submit their work to a judgement of “legitimacy” like that. The reasons may be as various as the writers in the fandom. Including myself, I personally know of a number of writers, perfectly capable and willing to write novel-length gen stories in that universe, who eschewed the opportunity even to pitch an idea. (Though I support the series and purchase the novels.)

     But it does seem as if it’s a refutation of the idea you put forward: “While legitimacy is irrelevant to pay, who does not want to get paid for doing what they love?” Some just don’t, even when the opportunity *is* presented to them.

281. “derivatives (including fanfic) may be a form of advertising. ”

     Advertising you do not have control over and may not give the desired effect to the target consumer. It is a risk to test what are otherwise guesses in the real world and who gets to be the one to shoulder that risk. Should I as a rights holder be comfortable with that risk just so some one else can indulge a hobby.
     Copyright both in law and public perception affects all rights holders not just the ones with billion dollar bank accounts. Saying it doesn’t harm the filthy rich so that makes it ok does not reassure the rights holders living on pot noodles and two day jobs.

     If I self publish to the net all it takes is one piece of fanfic also posted to the net to create equal odds that a potential reader will find the other person’s work first. So you have two similar works with elements in common, how is that new reader to know which is the original authorized work. Cross fingers and hope they are an honourable fanficer that has a disclaimer leading them to my original. What if they are not; there is no shortage of scoundrels on the net.
     Sure if they like the fanfic they may search around for more and find my work but what if the fanfic turns them off then they don’t go looking for more and never find my work. What if a bad piece of fanfic creates word of mouth that a particular type of stories with such and such characters is not worth reading.
     Why should I accept risk to my opportunities to reap maximum benefit for my hard work of original material because some one else wants public accolades for playing with it.

282. Ed @264:

     “Now this I find a lttle surprising, because every time the topic has come up with female friends they’ve shuddered in disgust and said “Ooh, ick!”. Not once has a woman said to me “Yeah, I’d like to see that.””

     You’re hanging out with the wrong women, then.

     (At least, where “wrong” means “not the right women to give you insight into the conversation you’re trying to have”.)

     Maybe it’s self-selecting, and the group of women you know with whom you’re able to broach such a subject will have a negative reaction to it because *you* have a negative reaction to it. So — are you actually going to *listen* to those women who will tell you flat out that not only do they want to see it, they write it so that they can see it and share it? Or are you going to keep privileging the experience of the women you’ve talked to before over that of the experience of women who are talking to you *now*?

283. I realise this post is off-topic, but I feel it needs to be said. Nearly 300 posts on what’s obviously a controversial issue, mostly by people who feel very passionately about their position…

     …and not one personal attack that I could see. I’ve read the recent comments, yes, but “sexist bullshit” is a far cry from “scum-sucking woman-hater who should have his testicle torn off and fed to him”.

     This level of maturity in serious discussions is a large part of why I keep coming back to Whatever. Thank you, everyone!

284. @266: Heidi K.:

     And I’ve never understood people who feel the need to treat male and female friends differently.

     Amen. ¹

     As to the “it is / is not / could be about the money” subtopic (@206, 217, 222 ff.): There are exceptions and exceptional cases² to any of these stances – which suggests to me that perhaps the issue is ill-suited to legal codification.

     #include "StdDisclaimer.h"
     Ideas cited here and in #179 are almost entirely derived gleaned from other sources³, and are re-used without prior consent of said sources.

     Fortunately, ideas or memes best serve their purpose when adopted and [re-]used.
     ————————

     ¹ Of course, I’ve never understood people in general very well, either. At least, that’s what most people (the ones I can understand) tell me. :-)

     ² Consider Some Notes Concerning a Green Box by Alan Dean Foster, originally written as a joke in a letter to August Derleth. Its subsequent publication — after August and Alan arranged terms — was one of ADF’s first pro sales.
     (Paraphrased from memory here; see the intro to the story³ for the exact text, which I would quote if I could find my blasted copy amidst the shambles.)

     ³ Listed without implied order or completeness:
     • Harry G. Stein (aka Lee Correy): A Matter of Metalaw
     • Dougles R. Hofstadter: Gödel, Escher, Bach: An Eternal Golden Braid and sequelae
     • RMS: GNU Manifesto, GPL, copyleft
     • Alan Dean Foster, With Friends Like These… (Ballantine/Del Rey)

285. Phil:

     …and not one personal attack that I could see. I’ve read the recent comments, yes, but “sexist bullshit” is a far cry from “scum-sucking woman-hater who should have his testicle torn off and fed to him”.

     Damn, you used it before I could.

     I mean, what?

     ;)

286. Here’s an issue I haven’t seen yet.

     Since many of you only seem to be able to think with your wallets…

     I am a member of the grand sprawling entity known as Fandom. I buy a great number of books.

     And I boycott any author who I know to be anti-fanfiction.

     Robin Hobb; bought and enjoyed her first two books, will not be purchasing any more.

     Anne Rice; bought the first several of her Lestat series, will not be buying any more.

     This probably won’t affect any of the people here as I’ve never heard of most of you, and perhaps you don’t consider my market share to be large enough to worry about, but I guarantee you that I am not alone.

287. Regina,
     I’m getting a give us what we want or you’ll be sorry vibe out of you.
     Sulking and boycotting because some one said no you can not infringe my copyright is a rather childish tantrum.
     Did you scream I hate you mommy when she said no you can’t take a cookie as well. You’re not helping in giving me favorable perceptions of fandom. Fandom is not the center of the universe or the market.

288. Adela: If I self publish to the net all it takes is one piece of fanfic also posted to the net to create equal odds that a potential reader will find the other person’s work first. So you have two similar works with elements in common, how is that new reader to know which is the original authorized work.

     There’s no point in writing fic without identifying the fandom. Seriously: you lose half of the emotional impact and a good chunk of the plot if the reader doesn’t know the context. Now, I’ve seen trick stories written that hide the fandom until the end, in order to pull a gotcha, but those are rare (and hard to do successfully).

     I have never seen a story posted in a rare fandom that didn’t identify the source somehow–either by virtue of the forum where the story was posted (some LJ community for Frank’s Place stories, for instance), or explicitly in the headers or author’s notes or somewhere.

     Cross fingers and hope they are an honourable fanficer that has a disclaimer leading them to my original. What if they are not; there is no shortage of scoundrels on the net.

     There is no shortage–and scoundrels are not confined to fandom. And, yet, even if it were to happen, what would be the outcome? Some few people might read the story, go, “Huh, I didn’t get that,” and move on. A few others might go, “Oh, I know the story this references, neat, I should reread that,” and move on. And maybe a few foolish people might think, “Wow, I hope the original source isn’t that bad. Does Frank really do that to the dog?”

     In general, fans have no interest in misrepresenting themselves as creators of the source–because the entire point is to set the story in the context of the source. We spend a lot of time placing pointers in the text back to the source, triggering emotional moments and canonical plot-points, in order to get the reader response we’re shooting for. The point is the sharing of the fondness for (or frustration with) the source.

     And finally, the likelihood of someone writing fic based on one web-published story? Is vanishingly small. Fic is written based on series, mostly: books, movies, television. Long meaty stories with lots of arc and character development, lots of room for narrative gap-filling, lots of what-if moments, and preferably many opportunities for romance or sex between the characters. And generally a source needs a certain critical mass of popularity to start generating fic: because if nobody’s read the book or seen the show you’re writing about, nobody’s going to read it, either.

     Really, having someone write fic without disclaiming it and then having someone think the ficwriter originated it? Is not all that likely.

289. Adela @ 281

     What if a bad piece of fanfic creates word of mouth that a particular type of stories with such and such characters is not worth reading.

     The same could be said of a review — either from an online journal, or merely a blogger seeking out original works. That someone would put forth the effort to write fan fic about a work is generally (not in all cases) indicative that that something of worth was found in the original work.

     Granted, self-published original works whether online or in print start out at a disadvantage for any economic margin. With the advent of services like Lulu and Cafe Press, there may be a possibility that those margins may become less of a negative for the authors, but even so — your copyright still holds.

     Whether your work will hold up to criticism regardless or source is a whole other discussion. Laurel K Hamilton, Anne Rice, et al seem to be doing okay despite some rather vocal fannish opposition both to their works and their attitudes.

     It may be useful to remember that in the vast sea of a potential audience, people who write fan fic, be it of movies, TV, or literary works are still in the far, far minority of the consuming public.

290. (some LJ community for Frank’s Place stories, for instance)

     !!!

     Is that a real comm?

291. Heidi,

     According to the National Institute of Health Statistics, the average American male is 5′ 9″ and weighs 190lbs, whereas the average woman is 5′ 4″ and weighs 163lbs. Going by boxing weight classes, this makes him a Junior Heavyweight and her a Super Middleweight.

     The body of the average male is comprised of approx. 40-50% muscle tissue, whereas a female’s body is approx. 30-40%. That’s roughly a 25% difference.

     Those are documented facts, not “Sexist bullshit”. The average woman is at a physical disadvantage in a fight against the average man. Are there women out there that can beat up a man? Yes, which I’ve already said. Are there guys you could beat up? More than likely.

     Then there are the practical applications. How many fistfights does the average woman get into during her life, as opposed to the average man? Experience counts.

     As does training. Part of the reason I won’t hit a woman is because I was trained by the military. I’d be concerned I might react out of instinct and really hurt a woman if things got physical. I’m not claiming I’m an expert, because I’m not, but in a real fight you don’t break noses, you go for throats, kneecaps, kidneys, anything that will put your opponent down and keep them there.

     It has nothing to do with having a vagina, in fact women gain a point there because I can’t drop one to her knees with a well-aimed kick to the crotch like I can with a man.

     So please explain to me how not hitting a woman, given these facts, make me a sexist?

292. Sorry, Lydia, I made it up. But you know, there might be one! Heck, you could always start it up, and try to generate interest. Did they ever release the dvds?

293. Adela-

     I am merely presenting more data that affect a writer’s bottom line. What they do with that information is up to them. They are so worried that fanfiction will cause them to lose money but there’s another side to that argument.

     There are plenty of other books for me to buy.

     *shrug*

294. Cross fingers and hope they are an honourable fanficer that has a disclaimer leading them to my original. What if they are not; there is no shortage of scoundrels on the net.

     And no shortage of them IRL… yet authors allow their books to go onto shelves in towns known for theft problems.

     The standard in fanfic is that the more obscure the canon, the more detailed the credit & disclaimer. Harry Potter fanfics are often prefaced with “not mine, don’t sue;” rarefics are often prefaced with the author, title, and in-print status of the original. And sometimes a link to the author’s website, if any, or an Amazon page, or a Wikipedia page.

     A fanfic of a Lulu book should include a link to the original (‘cos hey, if I was inspired to write fic of it, maybe other people will be too; in any case, odds are my fic will make a lot more sense if they read the original.)

     And I second ReginaG’s statement: I don’t pay for books by authors who come out against fanfic. If they don’t want my filthy fingers on their characters, they can live without my filthy dollars in their wallets.

     I don’t buy books as ornaments to be looked at; I want them to inspire me. I don’t pay to be told my inspiration is illegal.

295. I have no idea, cofax. I hadn’t thought about that show in years. I was just charmed by the idea of there being an LJ comm for it. :)

296. 295 comments in and this is what I choose to contribute….

     I’m another fannish person who doesn’t buy the books of those who’ve explicitly requested that readers not produce fic of their work. I have a finite amount of money to spend on fiction and I read a pretty even split of literary and genre fiction. I tend to read in small bursts of time (two small children and full-time work as an academic researcher will do that to you) and so I prefer to read in paperback so I can rip books apart for the sake of portability (because I’m a philistine like that); I like short stories for the same reason. I know that another persistent preference of the way I like to interact with what I read, especially genre work, is to expand the universe through meta, fic, art – whatever the fannish mind has produced and whatever my own comes up with and wants to share. Why would I choose to buy a book that I’m not allowed to enjoy fully when another book is sitting right next to it without similar limitations?

297. @ Ed:

     So please explain to me how not hitting a woman, given these facts, make me a sexist?

     Because judging any given woman based on your impression of the average woman – even if your impression comes from facts – is sexist.

     “The average woman is weaker and less experienced than the average male” is (probably, I have no idea re: experience…in my experience the number of fistfights I know of involving females are about even with the number of fisfights without, but considering my female friends can take jokes, say what they mean, and handle themselves in fights I must be hanging out with freakish superwomen) a statement of fact.

     Applying that statement across the board, to all women, is sexist. Assuming that no given woman can take a punch as well as any given man perpetuates the stereotype of the weak, frail woman and the big strong man. That’s sexism, just as treating people differently based on gender is sexism.

     Currently, it’s culturally acceptable sexism that isn’t likely to become less acceptable anytime soon. Still sexist.

298. “the average American male is 5? 9? and weighs 190lbs, whereas the average woman is 5? 4? and weighs 163lbs. ”

     These average people are both fat and out of shape. Both need to do a little yoga booty ballet.

299. Heidi,

     Because judging any given woman based on your impression of the average woman – even if your impression comes from facts – is sexist.

     So the opinion that women are at a disadvantage in a fistfight, even if it’s backed up by facts, is sexist?

     Okay, got you. Why let a pesky little detail like a fact get in the way of a perceived slight? Because I’m automatically guilty of oppressing women by the simple virtue of being male, and anything I say must therefore be sexist on it’s face?

     And people say I have issues…

300. The whole I can’t enjoy a story as a reader unless I can fanfic on it afterwards bit presents fan fiction as a fetish again.
     So much for the we write it out of inspired love of the text part if your willing to boot your love out the door as soon as you are told there are boundaries.

301. Ed Bartlett:

     It’s sexist if you are judging an individual woman’s ability to match you physically based solely on the fact that she is a woman, and not her specific body size, type, and any skill or training you may know her to have. Yes, women in general are smaller with less relative muscle, that is a fact. Whether a woman is or is not capable of taking a punch is the result of more factors than what the average mass-to-muscle ratio of adult women is. (In fact, that it’s the average doesn’t even mean there are *any* women like that – while we know that things like height, weight, and muscle mass tend towards a normal curve, the simple statistic of “average” doesn’t tell you that. Half of women, based on that data, could be tiny little twigs, and the other half hulking tree-trunks.)

302. Adela: if I believe that there is nothing wrong with fanfic, that it does no harm to the author’s ability to profit from and control their IP, and may in fact help many authors gain a larger paying fanbase, and that it’s part of a long history of tale-telling and using popular mythology to tell new stories and interact with the old ones, how is it fetishistic to decide not to spend money on the work of a person who condemns fanfic out of, basically, a feeling of “MINE MINE MINE?” There are plenty of authors who have legitimate reasons for being wary of fic, but the most high-profile anti-fanfic authors seem do be doing it out of a strangely inflated ego, and I don’t appreciate that. I apply the same criteria to consumption of other media – if I feel I’m supporting an attitude I dislike, I boycott the relevant material.

303. I keep meaning to point this out, and keep getting tangled up in other discussion and forgetting.

     Anyone arguing that because no one charges for fanfic now, no one will if legality is established is ignoring something.

     Fandom, as has been said, is not a monolith, and just as one can’t paint all of fandom with the “they’re plagiarists”, “they’re uncreative”, “they’re idiots” brush, one can’t paint fandom with the “they have no interest in money” brush. What we know now is that fanfic is not charged for – we cannot know the reasons every ficcer doesn’t try for money, and thus it can’t be argued that no ficcer will try for compensation if they believe they legally can.

     (Elfwreck’s points in this regard have been valid: pushing for legalization to do it for free is not the same as pushing for legalization to earn money)

     People already charge for Real Person Fic, because while it may not be explicitly legal, it’s legal enough.

     So if OTW wants to make it clear they’re not after making it possible for ficcers to make money off their fic, they’ll need to be proactive about not leaving that “legal enough” space there.

     Simply saying “oh, no, fandom’s totally cool not charging money” is neither a solid defense nor necessarily a truth.

304. Ed:

     I’ve already said it, and Kerry also said it well – judging any given woman on the merits of the average woman is sexist. Even if the average is a statistical fact. You are using her gender, rather than anything about her specifically, to judge her. Sexist.

     Okay, got you. Why let a pesky little detail like a fact get in the way of a perceived slight? Because I’m automatically guilty of oppressing women by the simple virtue of being male, and anything I say must therefore be sexist on it’s face?

     You’re welcome to interpret “judging one person based on blanket statements about gender rather than on their merit as an individual is sexist” as “you’re sexist automatically because you’re male” if you choose. It’s not what I said, but in my experience males have poor reading comprehension so I never hold men responsible for understanding what they read.

     (And even though I know it’s women who can’t take jokes, I’ll point this out just in case: that was tongue-in-cheek)

305. Kristen Busse, I’m really interested in your wiki project. I have some questions… The statement regarding valuing the femaleness of fandom has me a bit concerned. Anime fandom on the whole, music, comics and sports fandom outside fic communities, parts of the cartoon fandom, fan fiction archiving has a long and deep male dominated or gender co-equal tradition. What steps will be taken to ensure lack of bias regarding the presenting of those histories? How do you plan to address histories outside of the personal experiences of people involved in the project where that is not the case?

     For a number of years, you’ve made statements in various locations in regards to with RockFic, FanFiction.Net, Quizilla and large swaths of bandom. They were labeled feral by you and people affiliated with this project. Is that still your position? How will that position be demonstrated in the history you plan to tell? If that is not the position you currently have, what steps will you take to ensure that bias does not creep in to your work?

     A number of the people involved with the Organization for Transformative Works have colorful fandom pasts. Will covering the history of people involved with the Organization for Tranforsmative Works be off limits? What steps are you planning to ensure a lack of bias and prevention of historical revisionism in regards to those members?

     I look forward to hearing your answers!

306. A “fetish”? Really? A preference, sure; the use of such a strong word here is inaccurate and inflammatory. I also like blue cheese, men with dark hair, and perfumes that smell of white flowers; are those preferences equally fraught? (And, for the record – none of these preferences are completely exclusive – after three years of “Jonathan Strange etc” riding the nightstand, I’ve finally finished the thing. So I DO venture outside my own preferences – but you can bet I didn’t buy other enormous hardcover books during that time.)

     For what it’s worth, I actually don’t think that fannish activity (or, for that matter, any human activity worth discussing) arises from a single motivator. I think that fandom is often as much about enjoying the activity of fannish behavior as it is about interest in the source material. For one thing, segments of fandom tend to rove; for a while we were all about Canadian shacks, and then we were in a castle in Scotland, and then a floating city in the Pegasus galaxy, and recently a whole group has relocated to… wherever those Winchester boys are, I guess. The activities, though, retain a similar character – and they’re fun!

     What motivates fannishness is far more complicated than a deep and abiding love for the One True Canon, mostly because we’re, you know, human and all that.

307. Heidi K @ 303

     I think the other thing that’s missing here is the discussion/assertion of fan fiction as an amateur endeavor, i.e. not professional.

     I tend to agree that it’s a distinction that needs to be made, even though it seems fairly obvious to *me*.

308. “but the most high-profile anti-fanfic authors seem do be doing it out of a strangely inflated ego, and I don’t appreciate that”

     Well Kerry I don’t appreciate thinly veiled attempts at threatening blacklisting for enforcing my copyright from the entitlement faction of fandom or accusations that I’m of the great dark evil empire for protecting what I created that gets thrown in authors faces from fandom.
     Ms.Rice despite some fans thinking they have enough clout to retaliate for her anti fanfic stand still seems to be able to pay the bills.
     If I was writing only for the money benefit I would have sold a cheap piece of hack work for the tasteless mass market decades ago.
     When I’m done with my creation others can play with it all they want but I won’t be done with it till I’m bones in the ground. My creation is the only thing I have of this life that is uniquely mine. My fanfic stance is keep it to yourself. What goes on in your head is your own business. I don’t have the superpowers to mess with that yet and when I do I will be busy out conquering the universe. It is the mass public distribution of fanfic that the internet made possible that I object to.
     Fanfic can be argued on 3 fronts, law, economics and philosophy. The philosophy front is always going to be a personal passion argument.

309. And let’s say I want to sell this novel, so I crank it up on Lulu and anyone can buy it from me. And then Allen and Ace Books show up and say “Uh, don’t do that.” And I say, but it’s fanwork. Because I’m a fan. And it’s transformative, since my main character didn’t exist before and I have her and her friends on a part of Coyote you never visited. So it’s fair use.

     I don’t have time to read through all the comments, so I apologize if someone’s brought this up, but neither “fair use” (which is not a law, precisely, but a set of fuzzy gray guidelines–fanfiction may be defensible under fair use, but fair use is *always* on a case-by-case basis, and museums and academic institutions have to worry about these issues as well, despite being all legitimate and socially acceptable) nor a work being “transformative” justify selling a piece of work created under the justification of fair use in order to make a profit. A teacher can use copyrighted images in a lesson plan for classroom teaching; the teacher cannot sell that lesson plan to a textbook company.

     As far as I know, no one at OTW is stupid enough to think fair use = okay to profit off of, and no one’s trying to establish that legally. Copyright law was originally established to balance the public interest (ability to reprint and create derivative works) and the author’s financial interest. Thanks to corporations, it’s swung heavily to the financial interest side. And this is a problem not just for fans who want to do what people have always done–modify and expand shared stories (it’s not our fault that cultural mythology now is largely copyright and trademarked by media conglomerates)–but for museums and cultural institutions and their ability to share the historic record. So long as fans are not profiting, I think it would be nearly impossible to prove that their activities are hurting the financial situation of creators. I suspect quite the opposite, given that fans buy media and encourage each other to buy media.

     Maybe this will be bad for fandom; I hope not. But I hope that regardless, people will start thinking about the drawbacks of copyright law.

310. @ magyra/307:

     I think the other thing that’s missing here is the discussion/assertion of fan fiction as an amateur endeavor, i.e. not professional.

     True! And I think making a clear assertion that they intend to legitimize fanfic as an amateur endeavor would fulfill what I mentioned as a proactive attempt to avoid that “legal enough” gap.

     @ Adele/308:

     Well Kerry I don’t appreciate thinly veiled attempts at threatening blacklisting for enforcing my copyright from the entitlement faction of fandom or accusations that I’m of the great dark evil empire for protecting what I created that gets thrown in authors faces from fandom.

     People have a right to purchase or not purchase any product for any given reason. There are people who boycott movies based on the actors’ political views, there are people who boycott cosmetic companies because of animal testing, and there are people who don’t buy books written by authors whose ideologies they don’t support. No one is threatening to blacklist you, people are stating “I won’t buy this product for this reason”.

     No consumer is required to buy your products. And no consumer is required to get your approval of their reasons for not buying.

311. Adela, I’m not blacklisting anybody. I don’t have the *power* to blacklist anybody. There are millions and billions of people out there who don’t even know fanfic exists who could be buying your work, and I’m not out to evangelize anybody into boycotting anything because I think the creator has a severe case of overblown ego. I’m just going to stop buying it if the creator doesn’t give a nice reasoned explanation for why he or she perceives fanfic as a threat. That’s something I have difficulty seeing – what threat do you see in fanfic as it exists now? It doesn’t interfere with your ability to profit from, distribute, and license your work. It doesn’t attempt to take control of your work, or to confuse yours with it, and as a general rule, fic authors are fans who support the creator and absolutely agree that it is your right to go after anybody who *does* attempt to interfere with your rights – but do not believe that your moral rights (and possibly not your legal rights, but that’s honestly something I only have minor knowledge of) extend to telling people in what non-profit, derivative, non-competing ways they may interact with your work. (Or my work, or anybody’s work.) Because no matter how much control you are afforded over the public presentation of your work, or what legal rights you have, once you release something to the public you no longer own it completely.

312. Heidi K. wrote :”What we know now is that fanfic is not charged for – we cannot know the reasons every ficcer doesn’t try for money, and thus it can’t be argued that no ficcer will try for compensation if they believe they legally can.”

     That’s kind of what I was getting at with my comment about a Shenzen fanfic sweatshop springing up.

     If the potential for profit opens up, whether intentionally or via an accidental loophole that can be exploited by crafty lawyers and accountants, it’s guaranteed that someone will move to extract whatever profit is possible.

     Case in point: Indian rupee coins are being turned into razor blades and sold in Bangladesh, because the metal in each rupee can provide 35 rupees’ worth of razors. This has caused a shortage of rupee coins in parts of India and people have resorted to using cardboard replacements.

313. Obviously, my refusal to by Rice and Hamilton novels has not had any great impact on them. Neither has my refusal to recommend that other people purchase them. *shrug* I’m not trying to bankrupt them.

     And I didn’t say I won’t read those authors’ works… just that I won’t buy them. Because I don’t support censorship with my dollars.

     Anyone who tells me, “you may not write about Subject X because that makes me feel horribly uncomfortable,” doesn’t get my money. Doesn’t matter whether Subject X is their original sci-fi series, or their pet political cause. I do not give money to people who tell me what I can’t write.

     If they believe that fanfic is an infringement on their legal copyrights, rather than something that just squicks them personally… they can take their fans to court. I notice that nobody has done this… either no court will take such a case (I’m told many law firms wouldn’t touch copyright where no monetary losses are being claimed; they’d fear it getting thrown out as “frivolous”), or they realize what a PR nightmare it would be to take legal action against the group likely to be their most devoted customers.

314. Jon:

     If the potential for profit opens up, whether intentionally or via an accidental loophole that can be exploited by crafty lawyers and accountants, it’s guaranteed that someone will move to extract whatever profit is possible.

     Exactly.

     I think what we have with the “ficcers are happy with fic as an unprofitable hobby” argument is people assuming what holds true for them and their friends holds true for everyone.

     The “why aren’t you writing professionally?” (translation: why on Earth would you do something for no money?) pov is at least equally flawed; the idea that the ultimate reward is financial as opposed to simply the enjoyment/enrichment one gets from a hobby is IMO a silly one. And it’s probably the basis for the indignation over the implication that any ficcer would want to *gasp* earn money – people who are constantly fielding that particular question are so used to explaining they’re perfectly happy not making money, and seeing their friends fielding that same question with that same explanation, it probably starts to feel like a basic truth of fandom: we’re happy not doing this for money, we’re not ever going to go after money.

     Aside from the fact I don’t think there are any universal truths when it comes to fannish attitudes – I already touched on the fact that because it’s true for you and possibly everyone you know it’s not necessarily true for fandom as a whole – no one is saying if fic is legitimized in the sense money can be made from it, everyone will be trying to make money.

     The argument here is if money can be made, some people – some in fandom right this minute, some not – will try. Where there is profit to be had, there will be profit-seekers, it doesn’t matter if you or your friends or even the majority of fandom will be among those profit-seekers.

     It doesn’t matter that OTW is not specifically after a situation where fanfic can be profitable. What causes the problem is they’re also not specifically after a situation where it can’t be, and all it takes is “legal enough” to get people testing the boundaries.

315. Elfwreck, “they realize what a PR nightmare it would be to take legal action against the group likely to be their most devoted customers.”

     In regards to that statement, has OTW considered that the focus on legality and the possible negative attention that they might bring to fan fiction community maintainers may alienate those maintainers, causing a PR nightmare for OTW by having those spokespeople for those communities condemn OTW to the group most likely to be OTW most devoted customers?

316. Heidi K. Says:
     there are people who don’t buy books written by authors whose ideologies they don’t support.

     *koff*OrsonScottCard*koff*

317. So maybe this is a stupid question, but no one seems to want to say why a cc license allowing for non-commercial transformative works would not satisfy your needs?

     The authors who’s work is used for fanfic already approve of fanfic, it will increase sales for the original author, and it’s a complement…

     Since I suggested this idea, we’ve had a number of mentions of ongoing boycotts of fanfic opposed authors.

     MINE MINE MINE

     is apparently offensive, despite the fact that other fanficcers acknowledge that the characters and IP do in fact belong to the author.

     Eh – the angrier you get, the less convincing you are.
     And the fact that Novik and the rest of the fanfic-entusiastic authors have NOT signed cc licenses allowing for non-commercial derivative use of the characters and backstory tells me that they don’t have the courage of their convictions the way Stross and Doctorow did. They put their asses and their publishing futures on the line when the published their novels under a cc license allowing for limitless copies to be made of their work (albeit non-commercial copies).

     Fanfic authors apparantly want the limitless freedom to play in other authors’ worlds, but not enough to go first, despite the fact that it is such a ‘great deal’ for the authors.

318. (Sidenote: I am not a member of OTW; I don’t speak for them. So this is my opinions; nothing official.)

     OTW doesn’t have “customers.” It has a group of people whose interests it wants to represent, some of whom may disagree with OTW’s understanding of their interests or their choice of how to pursue those goals–but that’s a different relationship from producer/consumer.

     I believe OTW was inspired to seek legal recognition because of the encroachment of profiteers seeking to make money from fanfic–groups like fanlib.org, that aren’t just “ad supported fanfic archives,” but actively seeking participation with media companies and producers to cultivate certain types of fanfic.

     While there have always been media contests that had mild fanfic aspects (“Write 250 words or less about Spiderman’s wedding; best entry gets a trip to Universal Studios; 5 runner-ups get multipack DVD sets”), the internet makes it possible for production companies to actively seek entire scripts and elaborate stories–and carries the risk that those companies will notice the types of fanfic they’d rather not have associated with their productions, and decide to prosecute for “copyright infringement” (or file a DMCA takedown demand) against any story that wouldn’t pass their TV standards.

     The combination of that risk, and the growing attempt to block access to fanfic that’s deemed “unsuitable for minors” (despite the fact that the US has no legal age restrictions on any other kind of text), and the RIAA’s flagrant implications that all uses not specifically intended by the creators (or their software designers) are some kind of infringment–has led the OTW to decide to take a stand, to state that many lawyers working in IP law agree that fanfiction and other fanworks are not categorically copyright infringement.

     Fanarchive maintainers who claim “well, it’s illegal but I’m gonna do it anyway” are not doing any favors to the fannish community. If they truly believe their hobby is illegal, I have no sympathy for the amount of attention they’ll get.

319. no one seems to want to say why a cc license allowing for non-commercial transformative works would not satisfy your needs?

     Because fanfic & other fanworks are not the full range of non-commercial transformative works, and authors who want to allow fanfic & other fanworks don’t have a CC license that matches that.

     Because many of us–Novik included, as far as I can tell–believe that fanfiction is included within fair use guidelines, and therefore doesn’t need any special licensing, any more than allowing reviews and critiques does. It’s silly to create a special permission for something that’s already legal.

     Because it’s important to establish this on a general legal plane, because a lot of publishers are probably unwilling to grant such licenses, even if the authors are–just like the RIAA controls a lot of music distribution even when the artists disagree.

     More CC licenses would be a good thing… but I don’t believe they’re necessary for fanfiction, any more than they’re required to allow parodies.

     And it is entirely ridiculous to claim that vicious insulting mockery is legal fair use, but an inspired homage is copyright infringement. There is something… very wrong, about the claim many people currently make, that critiques are more legally acceptable than compliments, that insults are more acceptable than praise.

320. Eh – the angrier you get, the less convincing you are.
     And the fact that Novik and the rest of the fanfic-entusiastic authors have NOT signed cc licenses allowing for non-commercial derivative use of the characters and backstory tells me that they don’t have the courage of their convictions the way Stross and Doctorow did.

     If fanfic falls under the category of fair use, as Novik and the OTW seem to be arguing, it’d be the height of pretention to “grant” the write to create transformative works. It’d be like me granting someone the right to breath; I don’t have the power to deny anyone that right in the first place. And to say that I’m hypocrite for thinking people should be allowed to breathe because I don’t explicitly grant others that right, when my entire argument is that I don’t have to grant it for them to have it is just the height of silliness.

321. Copyright is not there to protect us from honest fans it is there to protect us from dishonest fans and yes they are out there. That whole alternate universe POD Star Wars fanfic for sale on Amazon attempt proves there are those out there that if they believe they can do something they will try.

322. Tor: “Fanfic authors apparantly want the limitless freedom to play in other authors’ worlds, ”

     No, a lot of fanfic authors have no problems with limits. They play in officially sanctioned places like contests run on FanLib, on TokyoPop, on McCaffrey’s website. There are a number of us who believe if an author says no, it means no. There are some of us who won’t write fan fiction based on books because it can be seen as explicitly competing with professional authors because it involves competing in the same medium as them. We just are not necessarily as vocal because why should we have to be? We do what we do and we don’t need legitimacy, don’t need to try to bring it to any sort of attention to the professional authors because do they really want to hear that we aren’t writing it out of respect to them?

     Elfwreck: “It has a group of people whose interests it wants to represent, some of whom may disagree with OTW’s understanding of their interests or their choice of how to pursue those goals–but that’s a different relationship from producer/consumer.”

     Actually, my understanding is that OTW will be offering a service: Legal assistance. They will be offering another service: A fan fiction archive.

     Their potential customers are all of fandom. OTW is thus, whether they like it or not, a producer of fandom goods to be consumed by fandom.

     The indications are that OTW, as a producer of goods to be consumed by their fellow fandom based consumer, are doing a really poor job at courting their potential audience. The stance of OTW is one that is openly hostile to their fellow merchants, that is other producers of fandom goods. Rather than alleviate those concerns by going to their fellow producers and saying “Look, we’re not trying to get you shut down. We’re going to help you. Here is how we are going to do it. In fact, we’re actually going to help your business and your consumers. Here is how we will do it,” OTW seems to be ignoring the market, other producers. They are asking them, with out approaching them, to take increased legal risks through OTW’s own actions, risks that their fellow producers may not be willing to take on, especially as OTW has not reached out to them to offer their services to protect them from those additional legal risks.

     In doing what OTW is doing, they are thus creating a poor PR situation where they are alienating themselves amongst their fellow producers, that is those who produce goods and services consumed by fandom. OTW are risking alienating potential consumers, that is users who may utilize services that OW is offering by not reassuring their fellow producers that OTW’s actions will not adversely affect their ability to be producers.

     So please explain to me again how OTW is not a producer and its users are not consumers.

     Elfwreck, “Fanarchive maintainers who claim “well, it’s illegal but I’m gonna do it anyway” are not doing any favors to the fannish community.”

     This makes no sense to me. OTW is establishing a legal fund to do just this, by creating a complicated rational of legal theoriticals to justify what looks like copyright infringement. At least with FanFiction.Net and FanLib and almost every other fan fiction archive out there, the average consumer knows where they stand: They honor the requests of copyright holders when asked to remove material. OTW wants to change that. OTW gets no sympathy from this quarter for that, and according to what you said, they should get none from you.

323. And the fact that Novik and the rest of the fanfic-entusiastic authors have NOT signed cc licenses allowing for non-commercial derivative use of the characters and backstory tells me that they don’t have the courage of their convictions the way Stross and Doctorow did.

     Or, alternatively, that they don’t believe that they don’t believe a CC license is necessary for noncommercial fanfic.

324. …er, you know what I mean.

325. This makes no sense to me. OTW is establishing a legal fund to do just this, by creating a complicated rational of legal theoriticals to justify what looks like copyright infringement.

     OTW is establishing a legal fund to support the claim that fanfic is *not* copyright infringement, because OTW’s founders know that Paramount and Universal can hire a lot more legal experts than Suzy Q. Fanficcer, and that court battles are a modern “trial by combat” where whoever can best crush their opponent’s claims is considered to be right.

     OTW’s claim is not “we must create a justification for this illegal activity.” It’s, “this activity, which many people think is illegal, is not. The publishing companies and movie industry have a vested claim in convincing you that it’s illegal, and they’ve won a lot of public opinion with their methods. But just like homeschooling is legal, regardless of what your kid hears at school, fanfic is legal, regardless of what’s written inside the cover of your favorite novel.”

     The claim that the activity is generally legal doesn’t mean OTW is claiming that all forms of fanfic in all settings are legal–just like the fact that homeschooling is legal doesn’t mean every homeschooling family is following their state’s education laws.

     But I’m really baffled at this idea that creating a legal defense fund is seen as some kind of admission of illegal activity.

326. Elfwreck, “The claim that the activity is generally legal doesn’t mean OTW is claiming that all forms of fanfic in all settings are legal”

     How do the the consumers of fandom feel about OTW acting on their behalf given the possibility that OTW could very well find itself on the losing end of such a lawsuit? How do OTW’s co-producers feel about OTW willingness to put them at risk based on what OTW thinks is legal? Is there any indication that producers and consumers of fandom are in support of OTW in this regard? As producers of two fandom services, an archive and a legal defense fund, what sort of risk analysis has OTW done to show that one service, the legal defense fund proving that fan fiction is/is not a copyright violation, will not adversely affect their other service, a fan fiction archive?

327. Fandom is not a monolith and yet here this one group OTW is undertaking an action that could put all fandoms at legal risk. Maybe I should pop over to Journal Fen to see what the fandoms have to say about you exposing their buts for you untested interpretation of copyright.

328. An Eric, I was addressing what many IP owners with large fandoms are actually doing right now- which is giving tacit and sometimes explicit sanction to fanfiction writers and makers of fanart.

     I am not speaking speculatively, nor using analogies. I am reporting observable behavior, and in the case of some IP owners (Joss Whedon, for instance) their statements of record.

329. Tor@224: ” who does not want to get paid for doing what they love? That’s the dream of every working person in the world – what if I did ____? – something that I truly love to do.”

     I’m lucky. I love my day job. A lot. Fanfic is just, honest to God, A God Damn Hobby. No different from putting up Elizabethan preserves, or gardening, or baking, or reading social history, all of which I also do from time to time. Wouldn’t want to do *any* of them for a living; my vocation is, luckily for me, the thing I get paid for.

     For many fanfic writers, writing fanfic is a pleasure, a pleasure sufficient unto itself. My husband loves solving crossword puzzles. He doesn’t compete in professional crossword competitions; he doesn’t construct crossword puzzles; he just solves the Tuesday-Sunday Times puzzles (Monday being too easy) and throws them away. Nobody suggests that he is wasting his time or that he should become a professional; everybody understands that he is using his leisure time in a way that gives him pleasure.

     Same with me, and cofax, and Sepiris. We could be tatting, or speaking Esperanto, or hanging total strangers from the ceiling*, but we like writing fiction within a set of peculiar constraints and sharing it with like-minded friends. Sonnets have to be written within fourteen lines and using one of a small set of defined rhyme schemes. Fanfic has to be written using a preset list of characters and situations. Ready, set, go!

     * okay, I admit it. I do tat.

330. Any culture that would outlaw Houseplants Of Gor is a culture I don’t want to be part of.

     If that makes me a whore to culture, so be it.

331. “Nor do I think she would want me receiving advertising revenue from writing either book, or publishing it though print on demand. All of which would be direct consequences of my having the legal right to using her characters.”

     Yeah, good luck with that.

     Because after all, since money can be made by the pure will to write, it will be made. All wannabe authors worldwide are rolling in dough and have quit their day jobs, because making money — the be-all, end-all of putting thoughts into words and words onto paper/on the screen — is so gosh-darn easy.

     Self-publishing does not a millionaire make. There are reasons why thousands of manuscripts are received by publishers and only a couple dozen at best make it to print, and not all of it has to do with the quality of the writing or the skill of the storyteller.

     Publishing a book in the traditional sense takes moneymoneymoney to edit, print, market and distribute, and how many each year are relegated to the discount book market for a buck fifty, then tossed into the garbage with the front cover torn off?

     Publishing electronically for pay would be even harder, because actually finding anything worth reading in a fandom comes from word of mouth and reputation/recs, and you have to know where to look and who to ask, and that takes building relationships, partaking in communities, and you know, being social, which is part of the whole point of the ‘female space’ aspect of this segment of fandom.

     If all that stands between me (and thousands of other fan-ficcers) and a steady paycheck for writing anything is copyright law, well then… katie-bar-the-door. But believe me, anyone who would pay me to read my Enterprise slash fiction is already reading it — nay, they are beta-reading it. And on my very short Christmas card list.

     And I also wonder, why all the concern over my little old fan fiction, when fan films get to borrow actual props and actors from source material and get millions of downloads/views, and kudos from the media? Could it be that *gasp* they are from a male-dominated segment of fandom and holy crap that’s a more legitimate pursuit?

     I’m not even a hard-core feminist and that inequality hits me right between the eyes.

     Thank you, John, for a wonderful venue in which to discuss this stuff!

332. Tor @ 317

     So maybe this is a stupid question, but no one seems to want to say why a cc license allowing for non-commercial transformative works would not satisfy your needs?

     It does suit my needs for my original work, but I’m not courting the big publishing house for a contract to publish hardcover or mass market paperbacks for my work, who are mostly interested in first rights if not exclusive rights before they back a novelist with their investment dollars and distribution mechanism. No one is trying to bar authors from making a living, and right now that living is kind of tied to the publishing houses that have the bucks to move the product. I’m not entirely familiar with Doctorow’s entire history as a published author or if his success as a published author is adjunct to whatever else he may do to make a living — it would seem that he has enough to clout to dictate the terms of his releases, just as Anne Rice apparently has enough clout to keep a decent editor from touching her work before it hits the bookshelves.

     And also keeping in mind that while there a certainly a lot of people who are currently enjoying the heck out of writing fan fic about Harry Potter, at least as many if not more fans are having a good time writing their fan works not about creations of published book authors but of media properties coming out of the motion picture and television industry. What I write fanfiction-wise is exclusively in that realm — of visual rather than a text based source. Fan vidders also work in a far more visual than text based world.

     And I’m not sure who you are addressing, Tor, but I’m not angry about any of this.

     Copyright is and was always intended to be a mechanism to both ensure the rights of content providers to make money from their content and as a way to encourage more works to be produced. But in and of itself it doesn’t guarantee that anyone will make a single cent off what they do produce.

333. > Corporations will get bad press and ill will over such actions, but ask
     > the RIAA how much it minds being viewed as the bad guy.

     I think this is a fundamentally flawed comparision.

     The RIAA has no existence outside the enforcement of ‘artist rights’. It has to fight continuously to crush any moves away from the traditional model of music distribution, because if that model collapses then the RIAA will literally cease to exist. It creates nothing, sells nothing, has no direct commercial relationship with music fans. It’s a parasite on the music industry — or at best, a commensal.

     With some slight exceptions this isn’t the situation with the media and publishing corporations who own the IP for fanfic sources. They’re continuously creating and selling their own product, and there’s always going to be the consideration ‘is this actually losing us money?’ to be made before they start to piss off the people who spend money on their books and watch their shows. And it’s hard to see many instances where fanwork, even fanworks being sold for profit, will lose them money.

334. To Anonymous Observer

     I am a vidder. Vidding grew out of slash fiction back in the 70s. I love anime and machinima vids and deeply envy the relationship those fans have with their source creators. Those forms already have a sort of legitimacy. Those fan artists are, for the most part, not considered criminals by the industries they feed and feed off of.

     I don’t speak for OTW here but know many of the people directly involved and they also love those works. I am sure that part of the impetus behind OTW is the fact that we see that what we are doing is analogous to what the machinima and anime folks are doing and I don’t see why they get to be out in the open and I have to hide in the closet or risk losing my house.*

     *This has never actually happened to any vidder I know of but it could and the RIAA and MPAA may eventually run out of bigger fish and come after us.

335. Manna:

     The RIAA is working with the consent and direction of the corporations who are its members. It is not a parasite; it’s the coporations’ lobbying group and action arm. It does what it does because its members tell it to.

     The OTW’s argument regarding fanwork as fair use fundamentally alters the relationship between copyright holders and those folks who want to use the copyrighted work for their personal use, and in a way that could have significant economic consequences for copyright holders. My suspicion is that they will indeed ask “is this losing us money,” conclude that it will, and then move to deal with it.

336. For those of you who think a cc license is unnecessary, I wish you luck with that. Unless you file for a declaratory judgment, the legal precedent will be set by a fic involving extensive use star wars characters and background/backstory, han solo/chewbacca slash, in an alabama district court. Because that will give the copyright owner the best chance of a slam dunk success, and they will get it. No matter how big your legal defense fund. You *will* lose. And it will go from there – sympathetic courts across the nation with fic that is outside the community’s comfort level. It isn’t fair, but it simply is – and the only reason it hasn’t happened yet is that the copyright owners see fanfic as a voluntarily underground self policing society that is not trying to overstep.

     Your legal fund is going to encourage them to move first, before the initial fanfic precedent is set outside of their control.

     Not in the least part because it comes across as greedy. Japanese IP law, as well as its society, is different. You may like it better, but it isn’t our law.

     Doctorow, Stross, and others had an uphill battle to have their works sold under a cc license that allowed for unlimited copies, (they GAVE away books for free) and they won because they made the argument that it would make *more* money for the publisher. If they had just taken the position that everyone could copy their work, as well as everyone else’s work, for free, they would no longer have a contract with any publisher.

     Ask Watts if his latest book would have made it to a second printing, much less been nominated for a nebula with cc licenses.

     Ask Scalzi if Tor immediately leaped on the idea of distributing OMW to soldiers for free. I would imagine he had to talk them into it, on the basis that it was a good thing to do, AND it was likely to result in him selling *more* books. I’m sure that wasn’t Scalzi’s primary motivation, but it was very likely in his publisher’s top 2 motivations.

     Fanficcers have made a number of arguments as to why fanfic is a net positive for the copyright owner. Well, you could work with them, or you could just *take* by ‘right.’.

     If someone asks me for free legal advice, I sometimes say yes. If they show me how it will help *me* too, I’m much more likely to agree. If someone *tells* me they are entitled to it, my answer is always no.
     You have an opportunity to work *with* the copyright owners, or to set yourself up in what they will percieve as in opposition to them. My advice would be to find a series that is or has been loved by fanficcers, but is either out of print or close to it. Work the the author and his/her publisher (if they still have the rights) to create a vibrant fanfic community (contests, publicity, etc) and show how book sales increased. That will encourage more publishers to simply grant you a license, instead of having to fight tooth and nail for it.

     My impression is that you have more fun insisting you are an oppressed minority who is conducting a valient fight for your inalienable rights against the cruel oppression of the literary and media giants. Maybe all those individual boycotts will eventually work. Hobbs’ latest book,after all, was…. Oh, it will be out in january…

337. Ooops, re: Watts, that should be ‘without’ cc licenses.

     I typed that on my blackberry with little tiny keys, so sorry about all the typos.

338. My advice would be to find a series that is or has been loved by fanficcers, but is either out of print or close to it.

     Like Lovecraft’s Cthulhu mythos series before Chaosium licensed it for RPGs?

     I believe that the crossover between fanfic and role-playing games will be one of the key issues in the legal battles, and it’s been largely ignored. But there are several literary universes–including Tolkein–that are licensed as games; people are actively encouraged to make their own stories in those settings, sometimes using the original characters.

     Work the the author and his/her publisher (if they still have the rights) to create a vibrant fanfic community (contests, publicity, etc) and show how book sales increased.

     That’s exactly what we want to AVOID–the concept that active economic promotion is the “justification” for fanfic. The idea that “writing contests” are what fanfic is all about.

     Because inevitably, those writing contests have rules that boil down to “you may only interpret this original work within very strict lines; you may not show an understanding of it that’s drastically different from the athor’s intent and preference.”

339. The OTW’s argument regarding fanwork as fair use fundamentally alters the relationship between copyright holders and those folks who want to use the copyrighted work for their personal use

     How can an argument alter that relationship?

     The OTW’s claim is that the legal right to create fanfic already exists. They’re not trying to change the law–they’re trying to make people aware of some of the more complex aspects of copyright law.

     Like the fact that copyrights are not “lost” if they’re not protected. A lot of people think they need to “defend” copyright–but they don’t; that’s trademarks. Different category of IP.

     And the fact that “fair use” isn’t limited to educational purposes in a classroom–which some people think.

     The OTW isn’t planning on prosecuting any cases; they’re planning on being prepared in case, for example, the SFWA sends a takedown notice to Fanfiction.com similar to the one they sent to Scribd.

     If nobody files any whacko anti-fanfic lawsuits, nor attempts to shut down huge fanfic archives with a DMCA notice, then OTW’s legal defense fund will probably mostly be used to write printable FAQs about how the DMCA works, and explain the difference between plagiarism and copyright infringement.

340. The key phrase is ‘to create a vibrant fanfic community’ – I never mentioned money as a prize. Whatever administrators do, or could do, to encourage people to write fanfic.

     I’m not trying to change, interfere with, or tell you how to run your communit(ies). I’m trying to take what is prexisting and working with fanfic, whatever that is, and encourage you to work *with* current trends in publishing and media, instead of making what wil be interpreted as a land grab, and fought off accordingly and successfully.

     If you think that you can convince and Alabama district court that solo/bacca slash fic is a legal use of Lucas’ IP, I will get popcorn and soda for a ringside seat. And I’m putting the over/under on number of uses of the word ‘appalling’ in the decision awarding summary judgment to Lucas at 7.

341. Elfwreck

     “The OTW’s claim is that the legal right to create fanfic already exists. They’re not trying to change the law–they’re trying to make people aware of some of the more complex aspects of copyright law.”

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

     “If nobody files any whacko anti-fanfic lawsuits, nor attempts to shut down huge fanfic archives with a DMCA notice, then OTW’s legal defense fund will probably mostly be used to write printable FAQs about how the DMCA works, and explain the difference between plagiarism and copyright infringement.”

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

     In my opinion such an event is inevitable; I hope the OTW has the money and has the legal team to deal with it when it does.

342. OTW’s claim, however, appears predicated on a fairly expansive idea of what “transformative” means under the law, and also that all fanwork is transformative

     I believe their claim is that *most* fanworks are transformative–that the nature of fanworks is a transformative exercise. There can, of course, be fanworks that are merely derivative, just as a book review can violate copyright by quoting too much of the original, or a claimed parody may be merely satire.

     But those would be individual cases, not representative of fanworks as a whole.

     In my opinion such an event is inevitable; I hope the OTW has the money and has the legal team to deal with it when it does.

     I’m in agreement here.
     Sooner or later, some copyright owner is going to issue a massive DMCA takedown notice to some fic archive… and whether or not the OTW is ready to take the case, we’re going to see the legality of fanfiction dragged into court.

     I want the fanficcer’s side represented by someone who understands the history of fanworks, their place in everyday life (in kid’s games and adult “what-if” conversations), and the complexity of copyright law.

343. Tor@336: “My advice would be to find a series that is or has been loved by fanficcers, but is either out of print or close to it. ”

     But that’s not what the fight is about. I think you misunderstand the nature of modern fanfic. If you discount the Holmes pastiches written by the Baker Street Irregulars, modern fanfic starts with Star Wars and has continued to be predominantly media-based (with a small and continuing fiction-based community.) The overwhelming growth of Harry Potter fanfic took the existing community by surprise.

     And that particular author, J.K. Rowlings, has actually, in an act of enormous grace and courtesy, said that she is happy for her readers to write fanfic as long as it isn’t sexual. That precedent has been set: a wildly successful fiction author can allow fanfic.

     But that’s not really the point. The majority of fanfic is written about corporate works, works without a single author who is open to negotiation. You are never going to get Paramount to voluntarily give up anything, not even the right to, let us say, hold a Star Trek script reenactment party in your back yard. You can hold the Star Trek party, but you aren’t going to get authorization. While Gene Roddenberry was alive, you could write fanfic; he thought it was lovely, and held contests and published the best. When he died, that door slammed down.

     Your strategy is a nice hypothetical, but it doesn’t match what is actually going on. It is a great deal narrower than what the OTW is fighting for. The OTW wants people to be able to create vids, like Luminosity’s hilarious “Vogue”, or fanfic, or other transformative works commenting on the original.

344. Tor,
     You keep referring to fanfic with the example “han solo/chewbacca slash”. You’re doing committing the fallacy that a friend of mine calls “the naked guy at the gay pride parade.” There’s always one naked guy at the gay pride parade. There are also gay dads, briefcase drill teams, eighty-year-old lesbians, gay geeks, mothers of gay kids — and when the newspapers come out the next morning, what do they have a picture of? Yup. It’s always, ALWAYS the naked guy at the gay pride parade.

     Yeah. There’s Han Solo/Chewbacca slash. There’s Yoda/Chewbacca slash. There’s Care Bear S&M porn. (I’ve read it. It’s *hilarious*.) That is part of fanfic. It is by no means the whole. And it is easy to use the most offputting part of fanfic as a symbol for the whole. It is also cheap. No doubt that same cheap trick will be used in court, but that’s no excuse for using it here. Yeah. There’s a naked guy at the gay pride parade. We noticed. Now can we talk about gay pride?

345. I’ve never written fanfic, (though I’ve thought about it) nor am I a pro writer (though I’ve thought about it it), but what seems fair to me is that as long as the artist who created the original work is alive; they have final say. If they’re okay with it, then it’s nobody else’s business. If they’re not, then you need to stop putting it out in public whether money is involved or not.

346. Way way back in comment #78 when talking about public domain vs. copyright, An Eric says, “public domain can be bad for culture if authors refuse to publish because there’s no monetary incentive to do so. Humans are such creative creatures and such natural sharers, that this might be a marginal problem.”

     “Creative creatures and natural sharers”. Hmmm, sounds a lot like fandom to me.

     Fanfiction will never go away. As long as people are inspired by what they view or read (and can anyone here claim that they can control what inspires them?) and have friends who are inspired by the same source, they will be compelled (and again, can anyone here control the urge to write? or control their flow of ideas?) to write down and share those inspirations. Especially when they are rewarded by the love and admiration of their friends. (Note the lack of *monetary* reward in that statement.)

     It’s just human nature.

347. Slightly OT in this particular contest, but not too much: I was surprised by the lack of citations of the 1632 series/shared universe, who not only prospered with the help of the so-called “fan-fiction”, but who managed to send a couple of “former fan-fiction authors” into the NYT bestseller list…

348. Rigel@345: what seems fair to me is that as long as the artist who created the original work is alive; they have final say.

     Again, how does this apply to mediafic?

     It seems to me personally that as a matter of courtesy, at least, to living authors, that when said living author says “Back off”, you back off. There’s a real human being out there with feelings to be hurt. Enough said.

349. Psst:
     If you discount the Holmes pastiches written by the Baker Street Irregulars, modern fanfic starts with Star Wars

     Star TREK. Predates Star Wars by more than 10 years. Otherwise accurate concepts.

350. @345: as long as the artist who created the original work is alive; they have final say

     Final say over what? How people can interpret and write about their work?

     But I can post a scathing review trashing a new book. I can post a parody of it–Mad Magazine’s movie descriptions are legal, even when they go into “fanfic” elements, dragging in characters from other movies and having conversations with them. I can create a mocking re-write of the whole thing (cf. The Wind Done Gone).

     I can post an analysis claiming that Character A symbolizes the author’s latent homosexuality, and that Situation B shows the rape he wants to commit.

     Why is it only some forms of creative expression that draws on the original source are “forbidden?” Why is parody protected speech, but people don’t think the creation of a missing scene is protected? Aren’t they both interpretations shedding new light on the original, highlighting some aspects and ignoring others, to show a specific understanding of the original text?

351. Star TREK. Predates Star Wars by more than 10 years. Otherwise accurate concepts.

     Branes. Me. None. I meant to type Trek and typed Wars.

352. I have no idea why everyone is confusing “legal” and “marketable”. Sex is legal, but you can’t sell it.

353. Reading comprehension 101, look at the context. Final say over how they’re characters and worlds are seriously used. A review is talking about the world, not setting stories in it, which makes that a totally bogus comparison.

     And no one is thinking MAD magazine is trying to make a serious addition or alteration to the world. They’re making fun of it, and are very clear that in no way is that the original world.

     Applys to mediafic the same. The fact that there are several creators doesn’t change the basic idea.

354. One anti-OTW argument is that they are painting a legal bull’s eye for rights holders to aim at.

     This has already been addressed but maybe it’s been overlooked:

     The OTW would not exist without the establishment of “fanlib.com”, (who apparently mean to profit off fan creations but expose fans to bear the legal risks on their own) and the idea that the bull’s eye had *already been painted* (ever increasing visibility, hello!).

     And I think it cannot be emphasized enough that OTW does represent but a segment of fandom (however large it may be). I can understand very well that fandom members who are not sympathetic to OTW’s mission feel allergic to its perceived “championship of fandom interests.” There’s still a lot of discussion to be had about the consequences of this representation.

     I may be much in favour of OTW, but I am still grateful for the vocal criticism from other parts of fandom. I don’t believe OTW will improve from self-congratulation alone.

     (One sidenote: the OTW archive (“Archive of Our Own”) is supposed to be cc-licensed. )

355. Applys to mediafic the same. The fact that there are several creators doesn’t change the basic idea.

     No, but it does make it impossible to contact “the original creator”.

356. Applys to mediafic the same. The fact that there are several creators doesn’t change the basic idea.

     So, Rigel, what happens when the writers and showrunners read and share the fanfic, and think it’s awesome, and the production company sends the lawyers after the fans?

     The moral right in that instance inheres in the actual creators, not the multinational corporation which happens to own the property.

     And this absolutely happens: Joss Whedon thinks fanworks are awesome (I hope someday he gets to see “Scooby Road”), but the networks aren’t exactly going to throw open the doors to the Buffy/Xander shippers just because Joss likes them. And yet if anyone should have the right to make that call, it’s Joss.

     … unless it’s Sarah Michelle Gellar or Nicholas Brendan. Or the other writers, or the editors, or…

     That’s the problem with media properties: there is no one owner of the source, except in a purely legal sense (Sony, Disney, whatever), and when you’re talking about moral rights, who gets more say?

357. Elfwreck:

     “I believe their claim is that *most* fanworks are transformative–that the nature of fanworks is a transformative exercise.”

     Their vision statement says “We envision a future in which all fannish works are recognized as legal and transformative,” which suggests that their intent is more inclusive than addressing “most fanworks.”

     I wouldn’t disagree that fanwork can be transformative, but I think it’s a substantially more difficult argument to make that fanwork is transformative by the very nature of being fanwork. It’s putting the textual cart before the horse.

     Also, to be more to the point, one has to ask why it’s at all legally relevant that a potentially infringing work is “fanwork.” The phrase is not a legal term of art — indeed, I doubt even those folks who are doing fanwork can say where the boundaries of the term lie, and which things like within its purview and which do not. If one cannot define the word, it certainly would make it more difficult to argue that it should be some sort of legally protected class of expression, and that all examples of it are perforce fair use.

     I suspect that a judge asked to consider a possibly infringing works’ “fannishness” as a relevant criterion for evaluation will toss that out early, chosing instead to look at what the law actually requires. I likewise doubt that the courts would take it upon themselves to create a special “fanwork” exception to the law; most case law I’m aware of (as well as the constitution itself) says its the Congress, not the courts, who makes the rules of Copyright the US is obliged to follow.

358. I said I thought my idea was a fair way of deciding things, I didn’t say it was the way things are decided.

359. The claim, as I understand it, is that fanworks are by nature transformative use of the original material–which doesn’t mean no single fanwork couldn’t be violating copyright or trademark law in some other aspect. A fanwork that enhances sales of the original is likely not infringing; one that would take sales away from the original, not so much.

     A fanwork that insults and tells lies about the author is still potentially libel, regardless of its copyright status. A fanfic that quotes large sections of the original would be subject to the same issues that a book review is–while “reviews” are allowed, they’re not allowed to be a thin veil for “copies.” Can’t post every chapter of a book, followed by “this part sucks” or “this part rocked!”

     I don’t expect them to try to create a legal definition of “fanworks” as some special exemption to copyright laws; the term is a catch-all for several categories of artistic endeavors by people who appreciate, umm… stuff. Books. Movies. TV shows. Concerts. Video games. Actor personas. (It’s possible that RPF needs a special sub-definition or explanation. But it’s on steadier legal ground than the rest of fanfic anyway.)

     It might come down to “artistic endeavors created to show appreciation of some aspect of popular culture.” They may have to include some phrasing about the kinds of artistic endeavors–fic, vids, art, collages, songs, and so on. May have to put some bits in about showing *personal understanding & interpretation* of the original; photocopying the bookcover & sending it to friends may show “appreciation,” but it doesn’t interact with the original.

     (IANAL; I don’t know how they expect to or should approach this. But I know that I *could* define what I think of as “fanworks,” if given a couple of days to dredge up the right vocabulary and do a bit of research; I expect OTW has better skills than I in that area.)

360. @ Rigel: I said I thought my idea was a fair way of deciding things

     In a nutshell, this is why I am glad OTW exists now. Complex legal issues and the fact that they already have been misconstrued as speaking for all of fandom aside, I’d much rather have them on my side (or on the fan creator’s side) when push comes to shove over the legality fanwork. You, Rigel, are not in fandom, do not seem to understand why fans create derivative and/or transformative content, and I think that massively disqualifies you and others who don’t have copyright stakes in the discussion (that aren’t judges or lawyers, natch) from making decisions about what fans are legally allowed to create.

     And about the “benign neglect” thing and why creative fans “should” be happy with that, I just have one simple thing to say. Yes, there are fans that are comfortable with that arrangement. I used to be one of them, until I saw Fanlib come on the scene. Fanfiction and vidding and the rest of it cannot forever be overlooked, not with how easy it is to find everything now. And since it is never going to stop, since creative people are always going to find ideas and concepts and characters and tv shows and random posters inspiring, and be drawn to create something based on their inspiration, AND be drawn to *share* their stuff, I’d much rather we try to settle the question now instead of wait to be found and told I can’t write because I am writing derivative material.

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

361. “While Gene Roddenberry was alive, you could write fanfic; he thought it was lovely, and held contests and published the best. When he died, that door slammed down.”

     Actually, no. Star Trek:Strange New Worlds anthologies continued until last year. They were essentially fanfic.
     http://www.simonsays.com/content/feature.cfm?feature_id=5261&tab=24