Register or log in:

F&SF Forum » The Process of Writing

Legal Issues for Authors to Trip Over

(48 posts)

  1. Marian
    Member

    Here's an interesting article about an author who doesn't sound very bright http://writersweekly.com/the_latest_from_angelahoycom/007172_02012012.html

    Posted 6 years ago #
  2. aethercowboy
    Member

    INITIATING GRIPING SEQUENCE IN 3... 2... 1...

    What I hate most about Copyright law in the US is how it's abused. While I have no problem with the libel advice (I wouldn't want anybody writing a book about me saying I'm the guy who caused a nationwide alfalfa sprout recall, since I'm not, as far as I know...), I think that this article (or, specifically, the one it links to in the lede) points to two solid abuses of Copyright law that really shouldn't be happening.

    First is the fact that copyright is only intended to protect EXPRESSION, and not IDEAS. To write a book that continues somebody else's work (think "fanfiction") does not inherently infringe on copyright. The fanficcer (for lack of a better term) has not duplicated any expressions (e.g., passages from the original work), they have only continued the idea. Legal precedent and hand-waving, though, has made "characters" and "places" and "things" and "events" that happen in fictional worlds themselves copyrightable elements, which is wrong, as they are better expressed as ideas, and not idealized as expressions. The best defense for an author to protect against "unauthorized sequels" is a connection with his or her fanbase indicating that he or she neither approves nor acknowledges the validity of the other party's work. That or get some registered trademarks. An author's work simply builds a scene (using confabulation), and an "unauthorized sequel" uses that work to confabulate another in the reader's mind. Countless unauthorized sequels to the works of Shakespeare, Barrie, and Doyle haven't hurt the success of these works or the relevance of the characters. If anything, it's made them a more important part of our respective cultures.

    If you'd like to argue that a sequel is a "derivative work," look at the legal definition of such [17 U.S.C. § 101]. It does not explicitly include continuations (unless you want to argue that a "transformation" includes a "temporal transformation," but since the work's future has not yet been defined by the author, it's either: (1) nothing like the "unauthorized sequel" and therefore, not copyright infringement, or (2) completely like the "unauthorized sequel", and therefore, the ORIGINAL AUTHOR is guilty of copyright infringement, since the secondary author wrote their version first).

    The second abuse is the fact that under the Constitution [Article I, Section 8, Clause 8], it states: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This acts as a basis for US patent and copyright laws. Thus, whenever copyright laws, which are passed by Congress, are used to prevent an author from publishing a book, the law is actually being used counter to the Constitution, and is no longer being used to promote useful Arts, effectively destroying works that Congress should be fighting to protect. The further irony is that the entities that are using these laws to stifle creative works are, in fact, not the authors of the works in question (and, yes, I know, many publishers have you assign them the right to file suit on behalf of you for such matters, but think also of media conglomerates whose true authors are, for the most part, anonymous, or who hold none of the rights granted to authors as they are technically creating "works for hire").

    As for the libel issue, though I am not a lawyer, my reading of (US) legal theory on the subject indicates as much: If it's true, it's not libel. If it's a matter of public interest or the subject is a "public figure", then it's not a violation of privacy. The cited case in which a man's only daughter sued him for indicating that his unnamed daughter got pregnant at 16 is not libelous (as it really happened), but may be a violation of his daughter's privacy. However, since the event also impacted him, I think that stifling his ability to discuss the matter prohibits his Constitutionally protected rights to freedom of speech. Likewise, the effects of teenage pregnancy on the parents of the teen seems to be a matter of public interest, based on my cursory glances at the supermarket tabloid covers. Also, taken to an extreme, that means that people couldn't discuss non-criminal (because criminal ones are both factual and a matter of public interest) wrongs done against them, such as a snobby customer demanding s/he get every discount imaginable because s/he voluntarily came into the store and willingly purchased something, and it's YOUR FAULT; or that apathetic clerk who totally put the orange juice on top of the eggs, which was placed with the least care upon the bread, because s/he was too busy playing Angry Birds on his/her iPhone to give you the basic level of customer service; without facing lawsuits of this nature. But I digress...

    The one thing the inquisitive author got right was to live in Texas, where there are laws to prevent frivolous lawsuits [TX HB 274; 2011] by making the plaintiff liable for court costs (etc.) in such frivolous cases. That added to the SPEECH Act of 2010 should keep the author out of as much hot water as he can avoid stepping into.

    THE GRIPE IS OVER!

    Posted 6 years ago #
  3. geoffhart1962
    Member

    Aethercowboy griped about excessive copyright and related points:

    You've made some good points, but it's not as simple as you make it out. If an author invests years developing a character and story world, shouldn't they receive some protection for that work? That's the whole idea behind the modern implementation of copyright, and it's why my ass will get sued (and I'll lose) if I release a Star Trek or Star Wars novel without permission from the copyright holders. And -- pace to the fanficcers -- I'm completely okay with that.

    You're correct that ideas cannot be copyrighted. And this is why I can write as many stories as I want about an inhumanly brilliant heroin-addicted detective accompanied by a doctor sidekick -- just so long as I don't call them Holmes and Watson. The idea is not protected; only the specific implementation of the idea is protected. That strikes me as a reasonable compromise between protecting the author's investment and protecting the freedom of others to write about those characters.

    Your second point conflates copyright and patents. They're clearly spiritual cousins or perhaps twins joined at the hip, but they're not the same thing in practice. If you think copyright has gone malevolent, check out patent law some time. The worst abuse of that law is that people are patenting things that fail the most obvious tests of whether something is patentable: obviousness and prior art. It's hard to understand how you can justify patenting a natural gene when (i) the gene is obvious to anyone willing to do the work of sequencing it (there's no creativity involved) and (ii) the entire genetic code is freely published, both directly in the genome itself and indirectly in databases of gene sequences.

    In terms of libel, I'm also not a lawyer, but I believe you're correct that the "it's demonstrably true and everyone knows it" defence is valid in North America. I don't believe that this is true in the U.K., where you can be sued and will lose if the truth is demonstrated to cause tangible damage to someone's reputation, livelihood, etc. I'd bet you a virtual beer that you would lose a libel case in North America if the person could prove they suffered grievous damage as a result of your reckless advertising of the truth without regard to the consequences. (You might not lose under libel law, but a good lawyer would probably turn it into a civil case instead and sue you for damages.) Even if they have no hope of winning the case, the fear of protracted and very expensive litigation will cause most civilians to surrender without a fight.

    In such cases, it all comes down to how clever one's lawyer is and whether the judge is sympathetic and wants to make a name for themselves by establishing new jurisprudence. Sadly, the modern legal system isn't ruled by logic and high principles nearly as often as we might hope.

    Posted 6 years ago #
  4. Anonymous

    geoffhart1962 says "If an author invests years developing a character and story world, shouldn't they receive some protection for that work?"

    I agree entirely, and although I'm not a lawyer either (where ARE the lawyers when we need them??), I believe authors generally can and mostly do get protection for characters and story worlds (Star Trek and Star Wars, for example). But as Aethercowboy points out, lots of people have written and published fiction in which Holmes and Watson are the central characters and are named Holmes and Watson. Does a writer who wants to do this have to get permission from the Conan Doyle estate? How does this work?

    (BTW, I believe Holmes is addicted to cocaine, not heroin, although he's been rumored to smoke a little opium on occasion....)

    Posted 6 years ago #
  5. aethercowboy
    Member

    Geoff,

    With respect to your first point: Authors et al. do deserve some sort of protection against illicit use, hence my reference to registering a trademark, which would then prevent others from using those keywords (e.g., character names) in ways that may cause customer confusion. I do not believe that any other protections under the law are necessary to protect an author's investments. Copyright law should exist solely to prevent people from making copies of the work in ways that are not authorized by the author (with certain private-home-use exceptions). Most specifically, as the existence of sites like fanfiction.net which boasts literally half a millions Harry Potter stories, has not in any discernible way prevented J. K. Rowling from becoming ridiculously wealthy. In essence, true fans, as well as discerning readers, prefer legitimate goods to less reputable (albeit free) goods. No matter how many non-canon Harry Potter books there are out there, once Rowling rolls another, people will buy that in preference to any others. Likewise, slapping an "Official Sequel to the Hit Series" is additional insurance, as if you say that, and it's not an official sequel, you might have FTC agents knocking at your door.

    Likewise, if you do write a Wars/Trek novel, you're going to be facing trademark suits as well. Paramount and 20th C. Fox/Lucasfilm Ltd. have filed the appropriate trademarks. Of course, while I'm on the topic, there are weasley ways to use such literary trademarks (e.g., Tarzan or Popeye) who happen to be in the Public Domain. Mainly, you have to prove that there is no customer confusion for your product versus a sanctioned product, and also present the case before a judge whose competent of trademark law... Again, I'm not a lawyer. Your mileage may vary. (However, as an aside, I have a running joke with my wife: "Frodo Baggins® was a Hobbit®-brand halfling").

    I respectfully disagree that copyright is the appropriate tool to be used to protect literary characters from misuse. I have a hammer in my toolbox, but I only use it to pound or remove nails; never for screws or for patching drywall or for performing dental work.

    Also, FWIW, Sherlock et al. are public domain (at least in the US). Write away. (And as a side note, have any of JJA's anthologies done anything to negatively impact the works of Doyle, Lovecraft, or any other anthology he's put out that builds upon established mythos?)

    I tried not to conflate copyrights and patents. Granted, the so-called "Copyright Clause" of the Constitution also grants Congress the rights to pass legislation regarding patents, I try to keep the two apart in my mind. What I said could likewise be claimed true of patent litigation (how many awesome tech startups die on the vine because some big company claimed that "a method or system through which a user uses an interface to do generic things" was their idea first?). I have my own qualms with patents, specifically ones pertaining to "business methods," which are major innovation stiflers in the tech industry, of which I am a member (the tech industry, not the innovation stiflers). Let's hope that "In re Bilksi" helps clean up some of that mess. However, back on copyright, take the example of 60 Years Later: Coming Through the Rye. US courts prevented this book from being published in the US, as it was deemed to violate the intellectual rights of J. D. Salinger. However, the only similarity is that this book takes place 60 years after the events of Catcher in the Rye with the main character being Holden Caulfield. While I doubt that any book written to follow Catcher could supplant it, even if the book in question was good, it would pose no threat to the Salinger estate, as if they released an "Authorized Sequel," even if it was equally as good as 60 Years Later, more people would opt to purchase the "official" one, as they tend to like "official" things. The only person who might buy both would be the extreme Catcher fan, or people curious as to what all the fuss is about. The whole premise of US Copyright law is based on the Constitutional clause that I mentioned above. Without it, copyright laws would fall foul of the First Amendment. Because of the abuse of Copyright law, and how it's being used to prevent works from officially existing (think the takedown of YouTube videos of babies dancing to songs; people don't watch those to listen to the Prince or Beyoncé tracks in the background, but rather because babies dancing to pop songs, regardless of the song, is almost as cute as kittens yawning), it's reasonable (I think) to claim that copyright law is being used in an unconstitutional way, and that Congress isn't doing its job to protect these creators from what amounts to censorship.

    W.R.T. UK law, I must admit no knowledge. I've not ever had the opportunity to experience the land or their laws.

    Also, for myself, a fledgling semi-pro at writing, I have absolutely no problem with people producing "unauthorized" sequels (or, heck, adaptations) of my work. Granted, I prefer to be attributed, I think that in our day and age of the Internet connecting all things, the truth of the adapter/sequeler/fanficcer/whateverer would eventually come out. To be honest, though, if somebody wrote an entire book based on something I made, I'd be floored that somebody actually liked my stuff enough to dedicate time and resources to express their fandom of it.

    Copyright law, though, as much as I'd like it to be elsewise, ultimately boils down to three things: the lawyers, the judge, and how many congresspeople are on the payroll of the big media industries.

    Edited to Add:

    I just remembered an older (but post-Sonny Bono Copyright Act) legal article written on just the point I was trying to make (I'm terribly sorry that I can't produce it right now). The tl;dr was even if you can't sue on copyright grounds, you can (1) try trademark, (2) file a civil suit for monetary damages (if you can prove that it impacted your sales), or (3) file a suit for violation of publicity rights. So, there are more tools for the toolbox.

    Posted 6 years ago #
  6. ByronBailey
    Member

    I'm not a big fan of current copyright, at least in the USA. Two key issues are exceptionally problematic, in my opinion.

    First of all, I think the current copyright is too long. If I recall correctly, we're talking about seventy years plus life of the author. Under those terms, if a person writes something when they're twenty and live to be a hundred, it's protected for a hundred and fifty years. The part of the US constitution pertaining to copyright says, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I fail to see how progress is actually promoted when a work can be around for five generations without the public at large allowed to play with it, interpret it anew for their age, allowing it to grow beyond the narrow confines of what an author or even worse, distant family member, may want. I think this process of reinventing what a previous generation has done is important way one generation figures out where it is in relationship to another. By denying this dialogue or greatly curtailing it, results in a kind of arrested development. I'm thinking 30 years or life would be better.

    Also, I'm disturbed by the most current interpretation of satire by the courts. Satire is not protected speech, allegedly. Parody is. Recent court decisions now say, though, that if you use another person's work to comment on the work in question, it's parody and protected speech. If another person's work is used to comment on something different from itself, it's satire and not protected. For example, I could do a Star Wars parody about an initiation ritual for storm troopers in which they get their eyes plucked out in order to explain the poor marksmanship exhibited in the movies. That's protected. However, if I have a satire with a bunch of storm troopers at the Republican National Convention chanting, "Gingrich," that's not protected because it doesn't comment on Star Wars itself but is just using Star Wars to comment on something else. The problem is that this ruling flies so much in the face of how satire has worked for the last 2,500 years or so, that it destroys it. I'm currently afraid to do satire which is probably my greatest strength. It's hard to have much meaningful satire when you can't work with what's meaningul now, what's current now, and have to tailor your satire to a generation long since dead for legal purposes.

    Many shows still do satire like the Simpsons, but I'm not sure how they get away with it. A big legal team? Anyway, I used to love Dr. Seuss, but after this ruling, I've come to hate the Cat in the Hat's guts.

    http://tags.library.upenn.edu/tag/satire+dr_seuss

    Posted 6 years ago #
  7. geoffhart1962
    Member

    A note back to Aethercowboy:

    In theory, trademark law would be a nice alternative to copyright law when it comes to protecting one's intellectual property. Then copyright law would be used only to prevent reproduction of the trademarked intellectual property. It's a great idea, but it requires a certain common sense that the legal system lacks. It also places an impractically large burden on the author to register trademarks for every significant aspect of their story world that they don't want copied. (Also, they would have to add a long list of (TM) and (R) at the start of every story to protect the trademarks, and would have to aggressively prosecute anyone who uses the trademarked term.) That makes the approach impractical. For all its problems, copyright is more practical for individual authors: write it once, and everything is protected.

    Good point about Holmes/Watson: I neglected to check whether they were still in copyright. Treat them (retroactively) as famous names to provide an example, not as a test case.

    Fanfic is a messy and complicated topic that I won't get into, other than to note that to the best of my knowledge, little or none of the fanfic is being sold. (I'm not an expert, but I live with one. From what I've seen, such as is being sold is based largely on a cost recovery basis to pay for photocopies; most is given away free on the Web.) Thus, it doesn't really stop authors in any way from making a profit; the argument that a good author will lose their readers because their stories vanish amidst a sea of fanfic seems unlikely at best.

    Most fanfic is a labor of love that only builds more enthusiasm for a franchise rather than detracting from it. All authors should support it for that reason; indeed, I explicitly note at the end of each of my own stories that you're welcome to build on my characters and story environments so long as you acknowledge the source. Specifically, I ask the author to add:

    "The characters and setting in this story originated in [story name and URL/link], by Geoff Hart. Although Geoff encouraged adaptation of his original work, he has not reviewed my story, and the original story remains copyrighted in his name."

    I also note that if the fanfic author sends me a link to their story, I'll post the link after my story. Of course, I reserve the right not to link to stories that don't meet my standards or that I don't want to be associated with.

    I nonetheless believe that authors who create something and don't want others to use it without permission should have that right. It's simple courtesy (I'd say "common courtesy", except that courtesy isn't common.) If you've got a great idea, and you're competent to write about it, why do you need to use someone else's characters to present that idea? Have the courage to write your own story.

    Posted 6 years ago #
  8. aethercowboy
    Member

    Byron:

    Fun fact: Copyright in US used to be 14 years after publication. Then, they added an extension, making the max 28 years.

    Then a bunch of crazy stuff happened, and people redefined "limited time" in the context of the lifespan of astral bodies and ancient, dark gods, instead of lowly humans.

    Posted 6 years ago #
  9. ByronBailey
    Member

    "I nonetheless believe that authors who create something and don't want others to use it without permission should have that right. It's simple courtesy (I'd say "common courtesy", except that courtesy isn't common.) If you've got a great idea, and you're competent to write about it, why do you need to use someone else's characters to present that idea? Have the courage to write your own story."

    Have the courage to write your own story like Shakespeare? I've heard this argument many times before and I think it grossly underestimates the potential skill, value, and imagination in reinterpreting another story. This reinterpretation of the old in its various forms is a key part of social change. Many religious wars anhd feuds are based on differing interpretations of the same essential story.

    As for simple courtesy, I think it's simple courtesy to not sue my ass off for utilizing the story and myths that shape who I am. In eschewing them, I'm not being true to the culture or to myself. For example, considering how many generations have grown up with Mickey Mouse, we still can't interpret that character our way, have to settle for the official current Disney interpretation that sucks Donald Duck's ass. I've grown up with Mickey Mouse. He was probably more influential in my upbringing than Jesus Christ. My parents grew up with him, too. Yet we still can't make our own Mickey Mouse to reflect our world?

    In my personal opinion, creators of the modern stories and myths should not get upset when their creations do what all good creations do and acquire a life of their own. They may have sprung from a particular person's mind, but they live in all of our minds and it's natural and wholesome that new meaning, new interpretations of them, will spring up. That's what happens to a living story. That's the way it should be.

    With all that said, there's a balance between the needs of the writer to make a living and society to have a living arsenol of myths ands stories to give their existence meaning. Right now, I think we favor way too much the writer, particularly the very successful writer. Meanwhile, the writers who might have a small but viable fanbase for the indefinite future, tend to lose that fanbase due to copyright issues. They're popular enough to preserve but not lucratibve enough for people to make enough money on the copyright. So they rot for 70 years after death when everyone who has ever heard of them is dead as well and they're thoroughly forgotten.

    Posted 6 years ago #
  10. ByronBailey
    Member

    "Fun fact: Copyright in US used to be 14 years after publication. Then, they added an extension, making the max 28 years."

    I knew that fun fact. ;-)

    Posted 6 years ago #
  11. geoffhart1962
    Member

    Byron noted: "Have the courage to write your own story like Shakespeare? I've heard this argument many times before and I think it grossly underestimates the potential skill, value, and imagination in reinterpreting another story."

    Nobody said you can't reinterpret Shakespeare. All I said is that if (clearly hypothetically) Shakespeare asked you to not call your characters Lear and Cordelia, it would be courteous to respect those wishes.

    Nobody said you can't riff on Shakespeare. I consider Kurosawa's "Ran" to be brilliant because he translates Lear into a Japanese context. If he'd produced exactly the same movie starring a Japanese character named Lear who handed over his domain to his daughter Cordelia, nobody would have stopped laughing long enough to read the dialogue. (And no, I'm not referring to the Japanese difficulty pronouncing L.)

    Byron: "This reinterpretation of the old in its various forms is a key part of social change."

    Of course, and it's how we value and sustain those old myths and tales. One of my favorite examples is Zelazny's retelling of Indian myth in "Lord of Light". (Let's not get into the cultural appropriation debate, please. That's long, ugly and not germane to the present topic.) It's also why, as I noted, I explicitly grant permission to others to reuse my characters and scenarios in their own stories -- with credit.

    Byron: "As for simple courtesy, I think it's simple courtesy to not sue my ass off for utilizing the story and myths that shape who I am."

    See why I said "common" courtesy isn't common? Your response has nothing to do with courtesy: It's pure "the world exists to serve me and frack everyone else" selfishness. Are we perhaps channeling Ayn Rand, everyone's favorite petulant child, here?

    If someone violates the social compact that we should try to get along with other people by treating them with respect, and disregards my wishes in a deliberate attempt to hurt me (or my feelings), purely because that someone one can't be bothered to change Lear to Hidetora, they're not being a Kurosawa: they're being a blithering idiot.

    If you've got the literary chops to be inspired by a story and retell it in your own characters, context, and idiom, then I applaud your efforts and I'll link to your story if I like it. If you can't be bothered to make the effort, you're not a serious author; you're a spoiled 2-year-old complaining that the world doesn't appreciate your genius. Possibly because slavish imitation is not genius; it's slavish imitation.

    Posted 6 years ago #
  12. ByronBailey
    Member

    Geoff said:

    "See why I said 'common' courtesy isn't common? Your response has nothing to do with courtesy: It's pure "the world exists to serve me and frack everyone else" selfishness. Are we perhaps channeling Ayn Rand, everyone's favorite petulant child, here?"

    I say:

    Often times, what is passed off as common courtesy is uncommon inhumanity. After all, wasn't it common courtesy at one time to return escaped slaves to their owners? Wasn't it merely common courtesy at one time for some because of their color of their skin to use separate bathrooms, eat at separate eateries? No, I'm not a big fan of common courtesy. I do appreciate an uncommon courtesy, though, based on a more accurate understanding of who we are and how we function as a species rather than the common courtesy that in far to many cases impede lines of power from being explored that ought to be explored.

    Now about this pure selfishness you ascribe to me -- I don't honestly see it. As for Ayn Rand, that's just low. Have a little courtesy here, albeit not of the common kind, please. I mean, seriously. Call me a worthless mother fucker or the bastard spawn of Satan or a sack of steaming shit floating on a sea of piss. But a comparison to Ayn Rand? Have you no decency?

    Posted 6 years ago #
  13. geoffhart1962
    Member

    Byron: I have decency, just not common courtesy. That was your point, I assume?

    Hey, you got off lightly with the Rand comparison: I would have invoked nazism, only that would mean I automatically lost the argument (cf. Godwin's law). Maybe this should become Bailey's corollary to Godwin's law? Or does comparing yourself to a slave being returned to their owner require a whole new law of its own? *GDRLH*

    Posted 6 years ago #
  14. ByronBailey
    Member

    Geoff said:

    Byron: I have decency, just not common courtesy. That was your point, I assume?

    I say:

    I can see why you might think that, but frankly I'm not that obsessed about whether you think me decent or indecent -- I bet you can't guess what I'm wearing or not wearing now, though ;-) -- although I have a preference for people thinking well of me. However, it can't come at the expense of thinking well of myself. I don't have an immense amount of patience for societal bullshit. That societal bullshit that I just spoke about, that societal bullshit that's a significant amount of what's passed off as "common courtesy" -- establishing that this bullshit exists was my point, I assume.

    Geoff said:

    "Hey, you got off lightly with the Rand comparison: I would have invoked nazism, only that would mean I automatically lost the argument (cf. Godwin's law). Maybe this should become Bailey's corollary to Godwin's law? Or does comparing yourself to a slave being returned to their owner require a whole new law of its own? *GDRLH*"

    I say:

    The comparison to a slave was to establish in very obvious and simplistic terms that common courtesy has had serious failings in the past and therefore, just conceivably may have serious failings in the present. Once that basic idea is established, we can than explore how common courtesy or at least a particuclar interpretaion of it may ultimately fail miserably in more nuanced examples.

    It's funny you should mention nazis in reference to me, though, considering much of my concern with current copyright revolves around giving society sufficient means to combat folk like them.

    Posted 6 years ago #
  15. ByronBailey
    Member

    Btw, we have a whole lot to still talk about. Much of your comments requires extensive commentary, methinks. It'll have to wait until Monday to begin, though. The Super Bowl is in Indianapolis which is the capital of my state. Not that far away. I'm only marginally interested in who wins -- anyone but the Patriots -- but I'm getting a real kick out of examining the anthropology of the Super Bowl, this immense annual ritual of hyper masculinity, from the privileged perspective of a state that thinks the super bowl coming to it is the best thing that's happened to it since sliced bread. In short, I don't have time now to explore many of the issues raised here in depths greater than Ayn Rand or nazis.

    Fear not, though. Unless the powers that be here shut me down or my computer goes on the fritz or something, we'll start exploring some of these issues Monday.

    Posted 6 years ago #
  16. aethercowboy
    Member

    While you're waiting for that response, I'll provide a little intermission portraying how messed up Copyright Law is.

    Say I wrote a book or series of books about the Harry Potter character Cho Chang's attendance at Hogwarts, and I tried to commercially publish it. I would be smacked with copyright infringement because, by Jove, Cho Chang is protected by copyright because of some reason or another, and how dare I create a work based upon her!

    Or, if I wrote a book that had a plot completely isomorphic to Harry Potter, but with different names/etc. Somebody might try to sue, but in the end, the worst I'd have to face are charges of plagiarism, which is a civil matter (contrary to Copyright Infringement, which is a federal crime).

    In case one, I have created a mostly original work whose foundation rests upon something already created (albeit by somebody else). In case two, I have created a mostly unoriginal work whose very structure is based upon the work of someone else. Disregarding how laws are enforced, which one really is a worse (morally) crime, and why?

    If your answer in any way resembles mine, it leads me to believe that such matters generally contained under "copyright infringement" that do not actually copy expression should be sequestered to the realm of civil cases, and then, eventually phased out, because, in actuality, everything is a remix of everything else (to remix the Book of Ecclesiastes).

    Posted 6 years ago #
  17. Kevin C.
    Member

    Byron argues that societies need myths. While I'm no fan of the Mickey Mouse Protection Act of 1998, if a character fails to endure beyond seventy years, then it fails the myth test. Precious few characters meet that standard, and even then do we really want just anybody writing what they please, perhaps altering the characters in such a way as to destroy the mythos? And before anyone answers "yes," consider the abysmal Bo Derek version of Tarzan and ask if you want your favorite characters to get the same treatment.

    The two biggest modern mythos contenders are the Star Wars and Star Trek franchises, and if someone really wants to play in those sandboxes, all they have to do is to meet the criteria set up by the owners. Others take a dimmer view of such things, yet what of it? It's their property, and their right to do with it what they please.

    I have to point out, though, that unless a writer is very good, playing in someone else's sandbox is fraught with pitfalls. The characters must, well, stay in character. Even James Blish, who ended up novelizing all but two episodes of the original Star Trek, ran into this problem with Spock Must Die!, along with significantly altering the sandbox in a way that would be telling. Yes, it's that hard, and my hat is off to writers who manage to do it well.

    I'd avoid it. Going to the general archtypes and giving them your own unique twist is much easier than picking up an established character and universe, anyway.

    Posted 6 years ago #
  18. ByronBailey
    Member

    Me precious.

    http://newyork.cbslocal.com/2012/02/02/new-york-giants-have-their-eyes-set-on-super-bowl-rings/

    Yep. It's the day. The orc horde horde known as the Patriots, controled by the evil sorcerer Belichick, is threatening to take over Indy on Sunday and turn the entire state into a wasteland. Only a band of giants stand in their way. I fear. Maybe this isn't a job for giants but a job for hobbits.

    Btw, please have the courtesy to not sue my ass off, Tolkein Estate, for this use of your work. Over the intervening years, a most unfortunate thing has occured. Your property has become lodged in my mind, has become some of the key symbols that make up much of my thinking on issues such as steadfastness, good versus evil, what the little guy can accomplish and a whole lot more. Aspects of your property have become thoroughly entwined with the stuff that my very thoughts are made of. It has become the symbols that make up our culture and who we are. I'll make you a deal. If you don't sue me, I won't shoot you for allowing your property to grow in my mind, become the stuff that makes up my very thinking. After all, if it grows in my mind, shouldn't I have the right to make it my own? In this case, does fair property rights actually end with the original creator? Or am I merely just another human host for your alien apawn and once you lay your eggs in me, I'm yours forever or at least life plus 70 years which sounds an awfully lot like a prison sentence which doesn't fit the crime.

    To all you forumites, I get the feeling we'll talk about this topic more. I won't be able to engage much in the conversation until probably Tuesday, maybe Wednesday. And yes, this is a very sensetive topic. I'll hold no grudges against those who speak ill of me here because I can see where this ill will is coming from, and it's not a place of evil. I want authors to continue to be paid for their work. In fact, we need a society in which writers can be paid. Insights I've garnered from symbolic/interpretive anthropology, and cognitive anthropology, however, make me seriously question, whether the idea that the creators get to determine exactly what's done with their work is really valid morally or ethically.

    -- Stork-stepping, petulant two year old.

    Btw, please have the courtesy to not sue my ass off, _Alien_ Franchise....

    Posted 6 years ago #
  19. Kevin C.
    Member

    Shrug. I wouldn't recommend relying on anthropological arguments in a copyright dispute. If lucky, the judge may point out that within his court the law of American culture is the only one that matters. If not, the judge just sits back with a bored expression as the jury finds for the plaintiff.

    As it happens, your hypothetical reminds me of David Gerroid and The Trouble with Tribbles It turns out there was, indeed, a real-life trouble with tribbles. Heinlein had dreamed up a prolific, hungry, Martian life-form called Flat Cats for The Rolling Stones (the book, not the British band). That gestated unconciously in Gerroid's brain, and gave birth to the script The Trouble with Tribbles.

    Now, we have to make one point perfectly clear: Gerroid did this unconsciously. He didn't realize the similarity until producers picked up on the similarities and contacted Heinlein. Heinlein settled for an autographed script and waived credit, on the grounds that he had found inspiration for the flat cats from the Ellis Butler story Pigs is Pigs.

    This is fairly common. We're all are inspired by different things, sometimes unrelated to what we write. Some ideas are pretty common. Galactic empires and federations, wizards and daring-do, all are a dime a dozen. It's when you get down to specifics where you knock on the doors of plagiarism. There are hundreds if not thousands of fictional starship captains and wizards; there is only one Captain Kirk and Gandalf.

    The non-hypothetical consequences can be rather severe. I'm sure some on the board remember the sad story of G. Harry Stine, SF author and former Analog columnist. Stine was sued for plagiarism or copyright violation for allegedly lifting material from a popular comic strip. Analog dropped Stine from the column, and Stine was left to fend for himself. He prevailed - eventually. Either the plaintiff dropped the suit or he won outright, memory is fuzzy on that point. However, he had to pay for his own legal bills, which weren't cheap.

    That is reality. Whether we agree with a law or not doesn't amount to beans in a courtroom. Even if you are in the right, you still have to deal with the legal fees. Whether anyone thinks that's fair or right is beside the point. That is the reality in which we live, and writers must deal with it.

    Posted 6 years ago #
  20. Ron
    Member

    Concerning copyright, I think a utilitarian standard should apply. On the one hand, granting copyright, which grants a limited monopoly, gives incentives to creation. On the other hand, it seems that the length of copyright is too long. Because of a Supreme Court decision a few years ago, it seems that the lawmakers now have the green light to grant extensions to copyright ad infinitum.

    There is also a positive economic benefit to society by allowing creative works to go into the public domain. One, the work can then replicated at a much lower price, which benefits consumers. A second, and more important reason, is less hassle in putting forth derivative works.

    Since a good number of the people here are interested in fantasy, let me illustrate my point with two famous fantasy writings: _The Wizard of Oz_, and the _Harry Potter_ novels.

    The original novel _The Wizard of OZ_ has been in the public domain in the US since 1956. It is no accident that there are now derivative works, such as the novel and musical Wicked.

    The way copyright law is in the US, I highly doubt that the _Harry Potter_ novels will go into the pubic domain in the next 100 years. I'm more inclined to believe that it will never go into the public domain--lawmakers, every 20 years or so, will grant extensions to copyright. This is to the detriment of consumers, creators, and even to culture. We will never know of interesting derivative works. How about _The Student Days of Albus Dumbledore_? _The Adventures of the Woosley Family_?

    Posted 6 years ago #
  21. ByronBailey
    Member

    I'm currently taking a short breakk from the super bowl hype and can comment a little.

    Kevin said:

    Shrug. I wouldn't recommend relying on anthropological arguments in a copyright dispute. If lucky, the judge may point out that within his court the law of American culture is the only one that matters. If not, the judge just sits back with a bored expression as the jury finds for the plaintiff.

    I say:

    I wouldn't recommend relying on anthropological argument in a copyright dispute, either, at least if you want to win. Instread, if your purpose is to win, I'd recommend siding with money and power and there's a lot of both invested into the current copyright system.

    However, in regards to "the judge may point out that within his court the law of American culture is the only one that matters" -- what exactly should be American values is precisely my goal. There's more to anthropology than exploring other cultures. There's a reason for this exploration which is the understanding of how culture and societies work in all cultures. With a better understanding, you can start asking questions like with what we know about how central symbols are to cultural processes, do we really want to insist on the symbol purity required by current copyright law or is that kind of infringement on the thinking processes and cultural change mechanisms more reflective of those who have come to symbolize everything we keep telling ourselves we're not.

    Kevin said:

    "That is reality. Whether we agree with a law or not doesn't amount to beans in a courtroom. Even if you are in the right, you still have to deal with the legal fees. Whether anyone thinks that's fair or right is beside the point. That is the reality in which we live, and writers must deal with it."

    I say:

    Yeah, but need I mention how morally repulsive and if there is such a thing as a soul, outright soul-killing many laws in the past and even now have been, are? For me, this isn't so much a discussion on how to protect one's worthless ass from the law but rather on how to make one's ass not-so-worthless.

    Kevin said:

    "It's when you get down to specifics where you knock on the doors of plagiarism. There are hundreds if not thousands of fictional starship captains and wizards; there is only one Captain Kirk and Gandalf."

    I say:

    More on why this fails to allow for important things to be said later. Not enough time now.

    Posted 6 years ago #
  22. ByronBailey
    Member

    Ron said:

    The original novel _The Wizard of OZ_ has been in the public domain in the US since 1956. It is no accident that there are now derivative works, such as the novel and musical Wicked.

    I say:

    I haven't read the novel _Wicked_ but the musical _Wicked_ is easily one of the top five things that make my life worth living. It pisses my off tremendously that my CD of it got fried and I haven't had the funds to get another copy. Here's one of my favorite songs from it. I just get delicious chills up my spine when the proper time comes.

    http://www.youtube.com/watch?v=3g4ekwTd6Ig

    I can readily understand how if the Baum Estate still had creative control, _Wicked_ would have never been made. It turned much of the original material on its head. But I love it more than the original which doesn't speak that much to me. With that said, because of _Wicked_ the original material is more meaningful to me than it otherwise would be.

    Posted 6 years ago #
  23. Kevin C.
    Member

    Byron:

    Two issues:

    1. Our present society is the one in which writers must function. Complaints about "the man" might be personally satisfying and might find an audience, but isn't going to do much for a writer's career.

    2. Anthropological arguments serve only to understand and compare. It does nothing to shape society. Considering that our copyright laws are an extension of the concept of personal ownership, then arguing against it in favor of a open source, creative commons model isn't going to fly. If you believe every author should let others play in their sand box, then by all means, if you make the big time, allow others to play in yours. It's your work, and your right to do so if you so choose.

    Ron hits the issue on the head. How long is too long? Yet I can't help but think of Brer Rabbit Molasses. If anyone is free to use any fictional character for derivative works, imagine if a group or product the author despises makes use of a character the author has created, and the author is legally unable to compel them to cease and desist, or to gain compensation. I also can't help but wonder how many will write if they know anyone will be able to take their characters and their world and create their own derivative works. Some will, but there will be little incentive to produce a quality product.

    Posted 6 years ago #
  24. ByronBailey
    Member

    Yeah, those who were not the Patriots won the Super Bowl. My favorite team!

    Kevin said:

    1. Our present society is the one in which writers must function. Complaints about "the man" might be personally satisfying and might find an audience, but isn't going to do much for a writer's career.

    I say:

    Much change starts out as legitimate complaints. I've yet to even mention "the man," btw. Also, just perhaps my only concern from this conversation isn't about my writing career. I mean if it was just about my writing career, I'd say give me more rights. Prima Nocte would be nice, for starters. Still, it's not just about my writing career. There's a bigger picture I'm concerned about.

    Kevin says:

    Anthropological arguments serve only to understand and compare. It does nothing to shape society.

    I say:

    Nonsense. Anthropological theory and insights and social theory and insights of which anthropology is a big part of frequently are catalysts for social change. On the dark side, there's all of the horrors of social Darwinism in its application by the Third Reich as well as in our country like with forced sterilizations. There's functionalism which was frequently used as a tool of the colonial oppressors. And there's more. Much evil has also been done by folk social theory like Manifest Destiny. Marxism? Trickle up? The theories and mental framework, metaphors and symbols you use to explain reality, society, have a profound influence in shaping society. It behooves you to make sure that you're framework is honest and as accurate a representaion of reality as you can find because a more accurate representation tends to result in greater functionality.

    Kevin said:

    If you believe every author should let others play in their sand box, then by all means, if you make the big time, allow others to play in yours. It's your work, and your right to do so if you so choose.

    I say:

    Is it really their sandbox when it's my mind they're playing in, kind of like this under the current copyright laws:

    http://www.youtube.com/watch?v=ydXenL7iu0w

    Kevin said:

    Considering that our copyright laws are an extension of the concept of personal ownership, then arguing against it in favor of a open source, creative commons model isn't going to fly. If you believe every author should let others play in their sand box, then by all means, if you make the big time, allow others to play in yours. It's your work, and your right to do so if you so choose.

    I say:

    We have a history of not making property rights absolute. Just because you own property, doesn't mean you can dump waste on it and contaminate the surrounding water supply. The same kind of thinking applies, propergty rights tempered by the common good. I'm also not necessarily n favor of a "open source, creative commons model." I'm pointing out problems with our current system. As to solutions, see next section.

    Posted 6 years ago #
  25. ByronBailey
    Member

    Kevin says:

    Ron hits the issue on the head. How long is too long?

    I say:

    I don't have any definite answers, but what I might lean towards is that satire and parody should be proptected at all times. Other deriviative works I'm not sure. I can see good in having it immediately available but also significant harm. At the very least, though, I think every generation should have the right to reinterpret, reevaluate, the crap that the previous generation threw at it. So maybe something like 30 years before nonsatirical, nonparody derivitive works are fair game. I'm inclined to keep the original right for something like the life of the writer or 70 years, whichever is greater. Something like that maybe although my thinking is still a work in progress. It might change radically.

    Kevin says:

    "If anyone is free to use any fictional character for derivative works, imagine if a group or product the author despises makes use of a character the author has created, and the author is legally unable to compel them to cease and desist, or to gain compensation."

    I say:

    I hate to be blunt, but I think in this cases, writers are being too sensetive. Bricklayers don't spend much time obsessing that they're producgt might be used to smash someone's skulls in. Paper manufacturers don't obsess that people might draw pictures they don't approve of or compose limericks they dislike on their product. You put your product out and have the maturity to realize that people will buy your product you might not like, might use your product in ways you don't like. A little more of that attitude might be in order.

    In fact the situation you describe is the case. That already happens in the form of parody and is considered free speech. Satire which does the name thing but rather than using the work to talk about itself is using the symbols and metaphors of the work to discuss something else is not protected. Parody seems a much more vicious attack on a work. But satire is the one that's not protected.

    I've got a satire I would love to do, but it ain't going to happen because it involves using the symbols of Lord of the Rings which have become so dear to me. It's a satire on modern day marriage. It starts out with a woman awakening from a wild night in a strange bed and finding herself with a ring on her finger. She's married to nine Nazgul now. I've got a lot of riffs on the Lord of the rings from the divorce lawyers saying, "Me precious," to an immense and painstaking quest to Mount D which depending on who you are stands for either Doom or Divorce. Much of the humor and meaning of the story comes from taking the meaning found in LOTR and tranfering it to an unexpected place, a tale of modern marriage, creating a commentary on how brutal and painful modern marriage and divorce can be. I think it would have been a good story. Alas.

    Posted 6 years ago #
  26. Kevin C.
    Member

    There's a point, though, where product association can be a bad thing. You say authors shouldn't worry about it. Yet let's say you make the big time and find someone using one of your characters to shill Atlas Shrugged. Immediately you and your works become linked with Ayn Rand in the eyes of the public.

    In the case of parody, infringement is allowed to a much greater degree that straight works or satire, because reference to the work is necessary in order to poke fun at it. If you want an example, go read Bored of the Rings, or remember the old Lord of the Bling skit on Mad TV years ago. Satire doesn't receive as much leeway, because satire pokes fun at culture and not a specific work.

    For an author, there's at least two problems with parody. The first, you may still be sued for damages. There was an infamous parody of Archie that was sued for damages, and Bing Crosby sued an early cartoon where he was parodied as a coward. The second is that you really have to be over-the-top to pull it off. Again, see Bored of the Rings. A mild parody can be mistaken as a derivative work, so you really have to be careful.

    Posted 6 years ago #
  27. Part of the problem, I believe (and one that makes issues of intellectual property ownership nearly impossible to resolve at this juncture is that our world/society/culture exists within an active paradigm shift (caused most by technological advance, but not entirely so).

    The last time the human species experienced this kind of a shift was during the era in which we moved from hunter-gatherers to agriculture.

    Consider the concept of "ownership" prior to the establishment of agriculture. There probably wasn't anything other than "temporary" control (not ownership as we know it) of finite resources. Bands/tribes moved through various areas. If the fruit trees were blooming, they picked and ate the fruit - but couldn't consume it all. That band would move on, replete with fruit, another would move into the same area.

    Who "owns" the fruit trees? Who owns the carcass that was just scavenged?

    Start sticking to one place and investing labor in a plot of land and we begin to see the need for the concept of "mine" as in "you may not interact with those instrumentalities unless I allow it" (or you bonk me other the head and run off the rest of my tribe).

    We are moving beyond the relatively simplistic ownership concept (the zero sum game of what I own you can't own and vice versa) to one in which many individuals can own the same thing simultaneously. More problematic, we are also firmly in an era in which the making of a thing can be divorced from ownership of that thing.

    (For most of human existence, making/growing/creating something was virtually synonymous with ownership - except of course for collective labor (in which everyone had partial ownership) or slavery-like systems in which the concept of ownership had extended to other people).

    I've worked in IP for years (patents, trademarks, copyright, trade dress, etc) and often find myself straddling the arguments as it is easy to see why (in a world based on accumulating abstract wealth) ownership and control is important for one kind of creator, but can stymie others and why having things open-source can be a huge benefit for many but can stymie individual creativity and certainly undermine the value of things (which brings us back to economic imperatives).

    What is needed is something that will not be achieved through any amount of law-writing or tweaking of the current rules. We need a system in which 'ownership of origination' is recognized and that confers benefits similar to the ability to make everyone 'pay' for whatever is owned, but at the same time freeing up the concepts so that they may be used by others who would receive a kind of 'ownership of modification', to which benefits also accrue. Maintaining the 'hierarchy', if you will, would insure that benefit accrues all the way up the line and would allow a recipient of whatever to judge individual items on their pedigree (and would also preserve the data, so that if one were reading say, Billy's interpretation of Batman, the knowledge that the character originated with Bob Kane would be accessible for anyone so inclined.

    If we are still using "money" at that point, there would be a grand system of something akin to micropayments to everyone along that chain.

    But the key is not a law. Rather, it is a cultural shift, one in which it is OK to play with someone elses stuff, because acknowledgement of the sources is built in and "compensated" for.

    There might even be some kind of popularly derived scoring system in which a follow-on work's relationship to the original is judged (changes regularly as the zeitgeist changes); this might range from a derogatory "completely derivative, nothing original" to "takes things in a totally original direction"; such assessment would be separate from the critiques of the individual work itself (it may be completely derivative and unoriginal, but I give it 4 stars)

    "Originators" would be able to track the progress of their work (and would be receiving some form of compensation from all of it - talk about long tails). The chain of derivation itself might become motivation to artists to move up the hierarchy, striving to become "originators".

    We're only now approaching the technological capabilities to actually implement something like the above, but, again, its going to require a shift in culture. Until then, no law or regulation is going to adequately answer the problems as the technology has moved beyond the basic concepts of zero-sum ownership.

    Posted 6 years ago #
  28. aethercowboy
    Member

    An important side note:

    Speaking of myths and property... so-called "Intellectual Property" is such. What it is is the culmination of "Intellectual Works" and "Intellectual Rights." People used to say "I hold the rights to these works." Now they say "I own these works."

    This then gets confused with "I own that Camaro" or "I own that physical book" and then juxtaposes the properties of scarce goods with those of infinite goods.

    Say you're an apple vendor, and every day, some young scamp scrumps an apple from your stand. You now have one fewer apple, and can now sell one fewer apple, and therefore can only receive the revenue from one fewer apple. This is actual theft, and it hurts actual people because it reduces the quantity of actual goods.

    Now, say instead, you're a book vendor. If somebody downloads your book off the internet, they haven't actually stolen anything. You still have as many copies of the book as you used to have (in fact, since everything's digital these days, you effectively have an infinite amount of books, and any mathematician will tell you: Infinity - 1 = Infinity). Sure, you haven't SOLD that particular copy, but then you need to delve deeper into WHY that person downloaded that book. There are several "grey" reasons why: it wasn't available to buy in that person's region; that person was too poor to buy it; their local library didn't have any copies; electronic formats are easier to convert to formats more accessible to people with visual handicaps (and there's no unabridged audiobook or braille book); the "official" ebook costs the same as the print book, even including shipping... the list goes on. Nevertheless, the judgment must be made: does that person not have a right to read that book because they cannot or will not pay for it? Are the powers that be that are making it available making it too prohibitive to use? If it wasn't so easy to download, would this person ACTUALLY buy it?

    If the answer to the last question is no, then why should it matter if they are reading the book? If they wouldn't have bought it either way, what right does the author have to limit the availability of their work to the poor and the money conscious? After all, the same argument against downloading books off the internet could also be made against public libraries and friends who loan out books.

    Stealing a book from a bookstore is hardly the same thing as downloading an unauthorized copy of a book from the internet. Physical goods can be stolen, but not ideas.

    The long story short: Intellectual Property is actually Imaginary Property, as it does not meet the true requirements for "property." Likewise, if it were "property," upon going into the public domain, the original "owner" wouldn't "lose" it, but would instead have to "share ownership" with everybody else. The better terms are "intellectual works" for the works themselves, and "intellectual rights" for the rights granted to the authors and other rightsholders.

    It helps to keep this in mind when arguing about "intellectual property," as it doesn't allow for the arguments to be swayed by concepts of artificial scarcity.

    Also, Kevin: There would be legal redress for people using your characters in ways that you found offensive. Granted, the process goes through mostly civil courts, but there is a way. Look into "publicity rights," which would allow somebody to seek injunction against somebody using their works in ways that might make the original author look bad. Of course, if the offending author was making efforts to distance their work from your own so that there was no confusion, then that's a completely different matter.

    And since I'm on this soap box (albeit a bit under the weather (sorry if my thoughts are disjointed)), I'd like to add: though I may be a fledgling semi-pro author, I fully plan to put my work into the public domain on the first day of the 15th year after publication (like how it used to be: 14 full years, and the rest of the last year). If I haven't made enough money off of that work by then, I must not have been trying hard enough. That's incentive to work harder next time.

    Posted 6 years ago #
  29. geoffhart1962
    Member

    Amusingly and appropriately:
    http://verydemotivational.files.wordpress.com/2012/02/demotivational-posters-challenge-accepted.jpg

    Copyright is a sticky issue.

    Posted 6 years ago #
  30. ByronBailey
    Member

    Very intriguing insights, amazing stories editor, and I think you might be mostly right.

    Posted 6 years ago #

RSS feed for this topic

Reply »

You must log in to post.