Cathy Young argues that our current copyright system isn’t working as originally intended:
My argument: copyright law as it currently exists does the opposite of its original intent (as formulated in the U.S. Constitution, which allows Congress to legislate on copyright, and in the very first copyright statute enacted in 1790): to promote arts and letters and encourage learning, by giving authors an incentive to create new works by ensuring that they can fairly profit from their writings. (In olden days, it wasn’t at all uncommon for unauthorized editions of books to be legally sold with no profits going to the writer.) Today, copyright violation claims are commonly invoked to suppress new works — whether it’s 60 Years Later, The Wind Done Gone (the “Gone With the Wind-from-a-slave’s-point-of-view” novel that was finally declared legal after much wrangling in the courts), a production of a James Joyce play, or fan-made Xena: Warrior Princess videos on YouTube.
I agree. But Cathy also writes:
Would it really be perfectly fine, from a libertarian point of view, if, after the huge success of the first Harry Potter book, Joe Smith or Mary Jones quickly popped out a sequel before J.K. Rowling could publish the second one?
Well, I’m not a libertarian. But why not?
I’d suggest that Smith and/or Jones should be legally required to pay Rowling some sort of licensing fee if their book has a print run over a thousand copies in a year; and that the front cover include a clear (“not written or authorized by J.K. Rowling”), so consumers aren’t deceived.
But with that in place, I don’t see what the problem is. Few if any Harry Potter fans would have said “oh, why even bother reading the Rowling versions when they come out, now that quick knock-offs are available,” so it’s not as if allowing the knock-offs would deprive Rowling of her ability to earn a living.
Meanwhile, forbidding Smith and Jones from publishing their Harry Potter knock-off might well deprive them of their ability to make a living as Harry Potter knock-off writers, and it arguably infringes on their freedom of speech.
I can already hear people saying: “Who cares? Smith and Jones don’t have an original thought in their head. They don’t have a right to other people’s speech.” But some artists work best by reimagining works they already love, rather than by creating “from scratch.”1 Sometimes the result is a better work than the original — think of Stephen Sondheim’s great musical Sweeny Todd, which was adapted from a play. I think the culture be richer for it if artists who feel compelled to work with the books and characters they loved as kids, were free to do so, and to do it full-time if there’s enough of a market for their work.
Often, when I make this argument, people ask me how I’d feel if someone out there produced a sleazy porno Hereville comic. Well, obviously, I’d be appalled. But just because I find someone else’s work appalling, doesn’t mean it should be illegal.
- Actually, no artist in the world creates from scratch. [↩]
think of Stephen Sondheim’s great musical Sweeny Todd, which was adapted from a play
Which itself was adapted from a newspaper serial from the 1850s.
And that was based on existing urban legends in London.
i dunno. i don’t like the idea of people taking characters someone else invented and putting them in a story. (i also hate fanfictions–it’s like saying to the author that they didn’t do it right…) i certainly wouldn’t be okay with someone taking my characters. there’s a huge difference between referencing a work in metaphor, or having an event in your own book reflect something or someone in another book, but to flat out copy the characters and entire world that someone else created–i’m not okay with that.
Still totally disagree with you on this.
I don’t know why your goals couldn’t be accomplished by simply setting up a more reasonable copyright term.
Wide Sargasso Sea, by Jean Rhys, which tells the story of the mad wife from Jane Eyre is now an accepted part of the canon. So it has always been the case that writers have been using characters from other writers work to create new works, and my guess is that the problem many people have with such derivative works is the question of whether the derivative work is “cheap,” by which I mean explicitly not “literary”–as much of the fan fiction I have seen is not “literary”–and so I wonder about the degree to which class bias is at work here. If someone wrote a sequel to Harry Potter that was a fully imagined work of its own, of very high literary quality, and from a point of view very different from the Harry Potter books, would people have the same problem with it? Or would people instead be talking about the new insight it gives into the Harry Potter world?
Re: FilthyGrandeur: I don’t think fanfiction is equivalent to telling the original author that she did it wrong. If a writer creates a world so vivid and engaging that other people want to explore it on their own, or a character so compelling that people want to keep them alive by putting them in new situations or peering into their heads, that means the writer did something very right.
I suspect that part of the problem is that things never seem to become public domain anymore. People have published ersatz Sherlock Holmes novels – like The Seven Percent Solution and Michael Chabon’s The Final Solution – and although they’re not as good as the originals, they have an air of legitimacy due to being between covers, and they certainly don’t harm Conan Doyle or, for that matter, Holmes.
Copyrights (and patents) eventually DO expire. The better argument has to do with the term for both copyrights and patents, as well as what to do if it can be demonstrated that either have been orphaned by the intellectual property owners.
At issue in copyright law isn’t a variation on a theme — young boy enters “magician school”, makes friends, has magical battles — but being a “derivative work”. Rowling shouldn’t be able to prevent someone from creating new characters, back story, setting, etc., and so far as I know copyright law doesn’t prevent that.
Likewise, with patent law the prohibition isn’t on an outcome, but the method (for utility patents) by which the outcome is obtained. I spent two years writing “renewable energy” related patent applications that often had the same outcome as other patents, but was achieved in a “novel” and “non-obvious” manner.
Neither copyright nor patent law exists to protect the protected work from being produced. Both exist to protect the creative effort, to insure that the person who did that creative work is compensated. What they are supposed to promote is newly creative efforts which advance the state of the art — for people to come up with new ideas for the arts (a different world of a boy who enters a magic school) or sciences (a different method for producing or managing renewable energy resources).
Amp’s statement that it arguably infringes on their “free speech” rights ignores that copyright and patent law is in the Constitution —
Article I, Section 8 —
The key term there is “Progress”, not “promote”. A knock-off on the Harry Potter series is not, in my mind, “Progress”. Is “The Wind Done Gone” progress? Who’s to say that the copyright owner hadn’t envisioned such a use of the characters they created, but just not gotten around to it? (Okay, Margaret Mitchell is very much dead, so perhaps a bad example) It is arguably easier to move pre-created characters around than it is to construct new characters and new back-stories. Any number of new works about “pampered Southern women” could have been written, but relying on Michell’s work certainly made them far easier — and that is not “Progress”.
I agree with those who say that it would be better to shorten the terms of copyright from the ridiculous Copyright Extension Act passed several years ago on behalf of Disney, rather than force creative workers to license out their work as soon as someone else wants to make use of it. If Neil Gaiman and Terry Pratchett don’t think Good Omens would make a screenplay they’d like, then as much as I like to sit around casting that movie and trying to work out how to make a book that depends so much on the narrator’s humor translate into a movie without being 80% voiceover, why should I have the right to make that movie? The fact that I can pay them a licensing fee doesn’t justify it.
In particular, it’s presumably going to be some fee that the government sets, not the owner. I.e., it will be a kind of eminent domain that ignores how much the creator values the work. Joe and Mary cannot afford the fee that Rowling probably would demand for her to voluntarily license out her creation; if they could afford it, then Rowling would do it voluntarily and there would be no problem at all. Creators already can set the licensing fees for their works; Amp’s proposal puts the power to set that fee in someone else’s (the government’s?) hands.
Now, once Gaiman and Pratchett are dead (and I don’t mean by that to be flippant about Pratchett’s condition), they can’t be troubled by whatever wreck I make of their work, so that would be a reasonable time for the copyright to expire or for a mandatory licensing regime (payable to their heirs) to kick in. But the examples people have given of new works have all been when the creators were dead (and I think the Wind Done Gone does “progress the Arts,” inasmuch as it turns GWTW around to be viewed from a historically-subordinated angle, although the book itself was not well-written). Do what you want with Jane Eyre and Scarlett O’Hara when Bronte and Mitchell are gone — property law in the U.S. has long disfavored having the dead continue to control what will be done with what they owned in life (Rule Against Perpetuity shoutout!) — but let the creators be able to direct the fates of their creations while alive.
Some of the best works of English literature are derivative works. Shakespeare’s Romeo and Juliet comes to mind. Yet, I have to admit that I would not like it if someone were profiting off of my work. Personally, I like the whole Creative Commons copyright where one can allow non-commercial uses of one’s work as long as that work is also granted the same kind of copyright.
I do think that the amount of time that it takes works to enter the public domain should be shortened considerably.
On a side note, I can not say how glad I am that Jane Austin is in the public domain as I have been seriously enjoying Pride and Prejudice and Zombies.
I’d certainly consider a more reasonable copyright term to be a huge improvement over the status quo.
But since one of my goals is that if someone wants to write a really cool novel based on a current TV show, they should be able to do so without infringing on copyright, just making the copyright term shorter won’t accomplish that.
Robert,
If someone wrote a sequel to Harry Potter that was a fully imagined work of its own, of very high literary quality, and from a point of view very different from the Harry Potter books, would people have the same problem with it?
They did, it was about the kids in the epilogue. Blank characters, just the same world and…I liked it quite a bit better than what seemed to me the cobbled together aspect of Rowling’s last few novels. That doesn’t mean, mind, that I wouldn’t have bought Rowling’s last few novels, assuming she’d written any more. The guy’s on the third book, if memory serves, and he had to put up a notice that it was not, in fact, an extension by Rowling since his site looks professional as – hell -. I know he was in the news at one point in time for it, but I misremember where. Rather good stories, on the whole. I’ll see if I can find the link.
-My bad, second book, not third. And the link
http://www.elderscrossing.com/wizard.html
The reason you should have that right is that free speech should be the default. And because maybe your movie would be really good and enrich a lot of lives. (Or maybe it wouldn’t be good, but it would be an important personal stepping stone for you in your development as an artist. Etc, etc..)
I think a better question is, why shouldn’t you have the right to make that movie? Isn’t more speech better than less?
And yes, in my system, people lose a little liberty in that they can no longer set their own licensing fees. In your system, people lose liberty in that they can’t publish whatever they want. I don’t see why the liberty you value — to set one’s own licensing fees for things like Harry Potter novels — is so much more important than the liberty I’m valuing.
Christopher Bond, who wrote the play “Sweeny Todd” is based on, is still alive. (AFAIK)
May I direct you to “Breakfast of the Gods”?
http://www.webcomicsnation.com/poyorick/botg/series.php?view=archive&chapter=10960
Copyright law doesn’t allow this to be sold. I contend that “Breakfast of the Gods” is not only good art but that it is also “progress.”
This is a bit sideways from what PG was pointing out as these characters were commissioned by corporations. The lifespan of a successful corporation can be many times longer than a human lifespan. What do we do in this case?
Jake,
From what little I’ve seen, “Breakfast of The Gods” is protected as “parody”. I’ve not read enough of it to know what other forms of intellectual property the author might be infringing upon, but I’d be surprised if it couldn’t be “fixed” to make it non-infringing.
That said, I think you’ve uncovered the problem — yes, all those characters were “commissioned” by their corporate owners. There’s nothing keeping Brendan from making up his own characters. It’s just easier to borrow from someone else.
But we have other limitations on the right of free speech, such as defamation, intrusion on privacy, etc., and I think they are good ones to have. So no, I don’t think more speech is always better. And from what I understand, Bond was willing to have his play turned into a musical, so his example is irrelevant to the question of whether creative workers should be forced to license out their works for whatever fee the government thinks appropriate.
As for the commissioning of corporate characters, those still can be limited by a copyright term (which is what we have for corporate authorship; 95 years from publication, or 120 years from creation).
Amp writes:
I’m not sure “personal development” is a valid reason for theft. The notion that “art” or “performance” is somehow different from a can opener or wide screen TV is part of why people feel entitled to steal “art” and “performance”. The work-product is intangible, but the “work” was still “work”. Weren’t you the one who blogged about someone borrowing your work recently?
The sort of “speech” protected by the First Amendment” isn’t some absolute right to say (or print or perform or …) whatever you want, whenever you want. There is no free speech right to conspire to commit crimes, threaten, slander (or libel — I forget which is which sometimes …), lie under oath, or any of a slew of things which are “spoken” or “performed”. I was in a bicycle parade recently in which many of the participants violated public “decency” laws, and yet because the POLITICAL message was “notice us when we aren’t naked”, I’m fairly confident that the expression was protected as “political speech” (I was clothed, for the record).
Nor does the fact that much of “art” draws on existing works — the copyright laws DO include expiry for works. All of Shakespeare is in the public domain, as are many works from the 19th century. Want to re-cast “Romeo and Juliet” in war-torn Iraq? “Sunni boy falls in love with Shia girl”? Have at it. I recently saw “King Lear” set in 1960’s New Orleans. Shakespeare might be spinning in his grave (and I think that production is a clear example of what I’d call “not adding enough creativity to the work”), but it’s permitted by US Copyright Law.
FCH,
I disagree that the only reason Brendan used existing characters in that “it’s easier.” There are things that he’s done with those characters that wouldn’t have the same impact with new characters, or that wouldn’t be able to be done at all, in that format and that number of pages, with original characters. The fact that they’re ingrained parts of the audience’s childhood is integral to the story.
And, no, it is not protected (at least not enough) as parody. If it were protected enough, it would be for sale.
PG,
That’s the term until Disney’s MM copyright gets close again. Disney exemplifies the problem with copyright – they have enough money and clout to ensure that their exclusive ownership never ends. Do we really think that it hasn’t been long enough since Quake was used that using Quake now infringes on Quaker Oats business? Quake cereal hasn’t been in circulation since about 1972. But we can’t use that image for another 51 years?
I think that there’s a significant difference between the impact of using Quake and the impact of using MM. Our current copyright laws have no ability to distinguish that difference. As a result, there are things that are lost to us that don’t need to be.
Is it really theft? To me it seems more like what people do. They hear a story about characters that they like. The story gets retold. Then, somewhere along the way, other people take those original characters and tell other stories or tell the same story differently. Any of the major mythologies is an example of this. So are urban myths. Humanity has done this throughout its recorded history. Little kids do this. Do characters need to be original to tell an original story?
If you relay the latest episode of popular prime time drama to me, is it theft? If you summarize each episode of popular prime time drama and sell it, is that theft?
Are 2 second samples of other music used in original music theft? There are too many grey areas within current law and it results in the loss of valuable art, IMO.
I’m not opposed to copyright but I am opposed to it as it currently exists. I’m also of the mind that infringement is not theft.
I think, that there are great deal of fanfic writers who would disagree with you. (I’m sure you’d be terribly surprised to learn that I read fanfic; my bias’, let me show you them.)
Though I guess I wonder why it matters? The difficulty I mean. (Not that I think there’s any kind of default difficulty in any creative endeavor). If the argument is on the grounds of freedom of speech, or creativity or the common tales that bind us together or art or corporate monopoly vs. individual creators or whatever else the copyfights tend to be about, why does the assumed difficulty of the task matter?
(And, I’m not really trying to troll here. The copyfights are fairly complex and I’m just trying to understand how the perceived difficulty of the task fits. Or maybe it’s just because it’s not a hugely compelling argument to me. Personally, as a designer, I find trying to create a derivative just as difficult [in different ways] as trying to create something ‘original’. Though I admit writing and the work I do are not exactly parallel. )
Jake,
The fair use exception to copyright already gives weight to non-commercial uses. And I can’t think of much that looks more like theft than trying to make money off someone else’s property. It also gives weight to how small an amount of the copyrighted work you’ll be using; so far as I know, a 2-second sample generally isn’t considered an amount that tips in favor of the copyright holder.
Also, your rationales seem to go against even the licensing fee Amp was willing to allow.
“why does the assumed difficulty of the task matter”
Because that’s part of the rationale behind granting any kind of intellectual property rights. If coming up with a new song, or a new medication, or a new piece of software requires almost no effort, then we wouldn’t need to encourage people to do it by guaranteeing them the rights to their creations.
As a knitting designer and frequenter of knitting sites I run into copyright questions a lot. The standard in copyright law is “substantial modification.” If you take a work and substantially modify it, you have a new work with its own copyright; if the modification isn’t substantial you have a derivative work. Needless to say, get two lawyers in a room and you can get six or seven opinions on what substantial modification means (unless of course you pay them to reach an opinion you have in mind).
Suppose I take a hat pattern and I make the hat in a different yarn from the one called for in the pattern. It’s generally agreed that that’s well within the scope of derivative works. If I change a roll brim to a ribbed one, it’s probably still a derivative work. If I change the brim, add stripes, and use more stitches in the body so that I now have a slouchy beret rather than a watch cap, most people would agree that I’ve now altered the original hat beyond recognition and that I can write out the pattern for the new one, call it something else, publish it under my name, and do whatever I want with it. It would be nice of me to write an intro citing the original pattern that inspired my creation, but no one could take me to court if I didn’t.
If you wrote a new Harry Potter novel set in the world JK Rowling created for him, you’d probably still have a derivative work; if you wrote one called Harry Potter in King Arthur’s Court wherein you magically transported Harry back 1500 years and had him interact with Arthur, Merlin, Guinevere, et al., you might have a better case, especially since the Arthurian legends are in the public domain. (My reaction would probably be, “oh, geez, not another King Arthur retake,” but that’s a different issue.) The trouble would be that you’d be infringing trademark — I haven’t actually looked it up, but I presume HP is trademarked up one side and down the other.
A lot of web hosts (Yahoo comes to mind) will shut you down, no questions asked, if they get a cease-and-desist order claiming that you’re infringing copyright, patent or trademark. It’s up to you to prove in court that you’re not and show Yahoo the ruling. Since Yahoo (not picking on Yahoo specifically here, just by way of example) could itself be shut down if it ran afoul of the law, the knee-jerk reaction is understandable if infuriating to those of us who value free expression.
You can’t? How ‘bout depriving someone of the use of their own property? When I steal a colleague’s lunch, I don’t merely benefit from the use of someone else’s property, I also deprive another person of the use of that property.
In contrast, when I quote another person’s writings without permission or compensation, I don’t deprive that person of anything (except, perhaps, the opportunity to deny me the opportunity to quote from her work without permission or compensation). The other author remains free to publish or otherwise disseminate her work to her heart’s content. Indeed, I’m under the impression that authors generally appreciate being quoted – the fact that someone else may be profiting from the author’s property notwithstanding.
Moreover, I have difficulty getting exercised about people “trying to make money off someone else’s property” when the definition of property seems so arbitrary. Mickey Mouse would now be in the public domain, free for anyone to use, but for the fact that Disney successfully lobbies Congress to grant ever longer extensions to intellectual property right protections. If Disney had ever owned the rights to Shakespeare, I could expect that those works would still be out of the public domain, too.
(During oral argument for the Supreme Court’s recent ruling on the 1964 Voting Rights Act, Scalia expressed scepticism about the Act’s constitutionality, noting that while the Act is putatively a temporary measure, Congress recently extended it for another 25 years. And indeed, Thomas voted to find the Act unconstitutional. I look forward to hearing their views about the constitutionality of extending copyrights, even though the Constitution emphasizes the temporary nature of those rights. Think they’ll express the same degree of concern about Congressional tinkering? I’m not betting on it….)
nobodyreally,
Again, to refer to the 4 factor Fair Use test, whether someone may use a copyrighted work without permission DOES depend in part on whether the use will deprive the original author of compensation. If you are arguing that your use is fair, it’s in your favor if the original is out of print or otherwise unavailable, there’s no ready market for permission, or the copyright owner is unidentifiable. It’s against you if your use competes with (takes away sales from) the original, or avoids payment for permission (royalties) in an established permissions market.
So yeah, theft in the sense of depriving the owner of something is actually relevant to copyright law.
Jake @ 18:
Copyright Law does NOT address two people discussing the work while walking down the street or over juice and cookies. It also does not address a critical review of the work, provided that review isn’t just a recitation of large parts of the work.
I’m completely unclear on what it is you think mythologies, including urban mythologies, have to do with copyright law. A copyright applies to a SPECIFIC work. It does not apply to a genre, such as stories about children being kidnapped by victims of unfair dealing, as re-invented from the Pied Piper of Hamlin. If someone wanted to write The Ice Cream Man of Detroit, about a guy who lures children into a life of making Nike sneakers in sweat shops after the city council renegs on an Urban Development Block Grant — go to it!
As for Mickey, that character had a lot to do with the development of Disney, and Disney had a lot to do with the development and appeal of Mickey. What can be done with “Mickey Mouse” is most properly controlled by trademark law, and “Mickey Mouse” has been a protected trademark since 1928, and will stay that way until Disney goes out of business and no one cars about Mickey anymore.
I have to admit that I take serious umbrage at the idea of someone being able to “jack” my ideas and make money off of them without my permission (moreso when they make money off of them in opposition to my active denial of permission ).
I have no problem with the idea of an artist owning reasonable rights to her/his work. In fact, I’m in favor of the creator’s descendents being able to maintain those rights for a period of time after the creator’s passing. If I build a business as my life’s work, my descendents would still own that business for as long as they never sold it off (which, in many cases, can go much longer than a few generations). So why should my creative works be given so much less credence if they are no less “my life’s work”?
My issue with copyright isn’t with descendents owning the rights to an ancestor’s work for a generation or two (as you can see above, I consider it a “good thing”). My issue is with a company buying those rights and then, as mentioned by others above, using their financial muscle to continually extend the length of a copyright to keep it, effectively, in perpetuity.
So, I agree with many above: other people don’t have a right to use my creative work for their own ends, nor do they have the right to force me to let them just because they have enough money.
Honestly, Amp, this smacks of a crazy form of corporate colonialism. It won’t be artists using this, it will be giant corporate multinationals who will use it to force artists to sell their work for a financial pittance and with no “percentage” of any financial windfall from the final product in exchange. You would isolate artists further from their own work than many already are (such as recording artists vs. the Recording Industry).
In fact, what’s to stop a publisher from getting wind of the story I’ve just written and, rather than negotiate with me for rights to that work, force me to sell them the rights to publish that work at a pre-established “legal rate”? What if it’s not even finished yet? In your proposed system, I have no right to keep it until then. It’s no longer mine the moment I put a finger to the keyboard.
I’m with Mandolin (#3) on this. And I think the examples people have tried to posit about movies illustrate well that this is not necessarily about spunky Smith and Jones writing their own sequel to a bestseller, or an underdog dreamer writing a novel about characters from House, MD. Copyright laws have indeed been distorted awfully, but they were initially envisioned to protect the artist/creator. And if they were declawed to the extent you suggest, it wouldn’t be just artists or even primarily artists who would benefit. It would be corporations.
Corporations have the resources to advertise and distribute works. Creators have the works. If Mandolin writes a novel and Jerry Bruckheimer wants to make it into an explosion-and-sunset fest, currently he has to get her permission, sign a contract and pay her price. I’m happy with that. I’m not happy with the idea of movie companies paying a flat government-imposed fee and making off with Mandolin’s novel or my short story. No matter if there’s a line on the movie poster that says “THE AUTHOR OF ‘STORY’ HAS NOT APPROVED THIS ADAPTATION”, the movie is going to get press and attention. The creative choices of the movie industry — and do I need to remind “Alas” folks that those choices are often regressive and upsetting? — will reflect on the author’s work, and affect its sales and reputation.
I can think of other scenarios here too — where corporations can hire clones, sequels or adaptations made willy-nilly rather than allowing the creator any sort of hand in developing her or his work. I think our copyright system needs work, but I don’t think it needs this radical a reenvisioning.
I don’t *think* how big the amount you use is totally relevant in commercial works. Although I wouldn’t fear, say, quoting a line of a poem or a song, if it were a character saying it. But I’ve been warned against doing the same thing as an epigraph.
Personally, I would like to see the existing practice that non-commercial derivative works are almost never pursued converted into a rule that non-commercial derivative works are not a violation of copyright law. This would support the flourishing of fan communities and of creative works such as Breakfast of the Gods, while protecting authors from having their work swiped for commercial gain.
The other option I could see with Amp’s proposal is that the default derivative work license should simply be at the very highest end of what anyone could possibly propose as a licensing agreement (say 50% of gross in perpetuity, with derivative rights to the derivative work going to the author of the non-derivative work). This would allow for commercial publication of derivative works, while still giving producers of derivative works to negotiate a smaller licensing fee.
On the other hand, I actually still support the right of authors to prevent all derivative works, although my primary example (LeGuin) is not a great example, since she has allowed her works to be optioned for film without even bothering to retain any creative control, while at the same time suppressing less derivative works (fan-fic) on the feeling that people writing in her worlds spoils them for her. Perhaps it is a matter of written word (real) verses film (not real). However, if extensive published Earthsea fan-fic would have spoiled LeGuin’s desire to return to writing Earthsea fiction, thus depriving us of the later Earthsea novels, I think that that is a greater cost than other authors being deprived of publishing Earthsea novels.
Yeah, you & I always have difficulty discussing things on which we disagree. Your paradigm is so different than mine that you often have trouble understanding what I’m trying to communicate & I often have trouble figuring out how to say it in a way that you might understand. All I can say to your question is, “Go back and look at what I wrote again and see if you can distinguish my argument. If not, we’ll just have to give it a rest.”
All I know is, if some one pulls a Richard Prince on me and gets rich and famous off it, I would want to exact my retribution in BLOOD.
http://www.nytimes.com/2007/12/06/arts/design/06prin.html?_r=2&ref=todayspap
Frankly, I don’t like the precedent your proposal would set. Why is there any reason to bother coming up with your own characters? You could spend months working out a complex and rich backstory for your creative output, and someone else could take it and produce a knockoff in one tenth the time, and if they promote it more, they get all the reward. No one would bother coming up with their own ideas if it was cheaper and easier (and legal) to just modify someone else’s. Creative output would be reduced to a festering, incestuous Ourobouros, constantly reconsuming itself.
Yeah, yeah, everyone’s art is inspired by something, but removing the greatest impetus for TRYING to come up with something fresh won’t help.
Robin, your argument assumes that creators are driven entirely by the search for an easy buck. That’s so far from the truth that it’s ridiculous. Most working artists work incredibly hard for very low pay, because they’re driven by something other than a desire to make as much money as they can.
Even if it were legal for me to be drawing Spiderman comics (or, more realistically, Buffy comics), I’d still want to spend most of my energy drawing Hereville, because that’s where my heart is. It’s not all about money.
Regarding Richard Prince, I find what he’s doing contemptible, mainly because he’s neither crediting the original artists nor offering them a cut. Plus, personally, I think he’s adding fairly minimal value with the work he’s doing — far, far less value than that added by a typical piece of fan-fiction.
Felicity, a percentage — which is what I suggested — is not the same as a flat fee.
It’s not only about spunky Smith and Jones, or the underdog dreamer. But it’s about them in addition to everything else.
I think you’re in denial if you really think our current copyright laws aren’t massively benefiting corporations at the expense of artists. Think of a cartoonist like the late Steve Gerber, fired from writing his most successful creation (Howard the Duck), and not ever able to find another project that suited his personalty as well as a writer. Would it really have hurt him if Marvel Comics hadn’t been able to legally forbid him from working on his favorite creation?
Neal Gaiman, who created “Sandman,” was recently eager to do a 20th anniversary Sandman comic book. But he didn’t do it because wanted to pay him the same lousy rates they paid him when he was a 26 year old novice just starting in the business, and Gaiman found that unacceptable (I suspect more for the lack of respect than the money).
Wouldn’t everyone (except Warner) be better off if Gaiman had the right to say “okay, screw you, Warner; other publishers will pay a lot for my services, and I’ll write Sandman for one of them”?
* * *
Last week, a publication tried to get me to sign a work-for-hire contract, which would have assigned the copyright of the cartoon they were reprinting to them. I refused to sign it, but plenty of cartoonists have signed work-for-hire contracts, either because they were desperate for the work, or because they didn’t realize what the term means.
In which case, the clones will suck, and they won’t sell as well as the carefully crafted novels by the original creator. (Or, if they do sell well, then the original creator makes a profit.)
Speaking for myself, I would have read Rowling’s Harry Potter sequels even if there were lots of other sequels available. (In fact, there were thousands of Potter sequels available in the fan fiction online). All of Rowling’s novels have been translated into Russian, so apparently that’s a viable market for her work — even though there have been many unauthorized sequels written in Russian (due to the weak copyright laws there).
A lot of people seem to think that the original creator of a series is not going to be able to compete in a marketplace against cheap knock-offs. I don’t think that’s true.
This is an issue of more than passing interest to me.
I have witten quite a lot of Fan Fiction about Marvel Comic icons such as Thor, the Hulk, the Silver Surfer, Odin, Galactus etc andsome examples of my work are on the fan fiction net site:
http://www.fanfiction.net/u/1276881/David_Scholes
However generally speaking I would be very cautious about trying to publish any of this beyond free internet sites.
I have sought the views of the Australian Copyright Council. That body does not provide specific legal opinions but will refer you to relevant issued guidelines.
From those guidelnes I feel I have some understanding of this complex area.
Cheers
I think the original creator can compete in the marketplace, but what about the prospect of damage to a canon and its value (financially and artistically) going forward? I have a really hard time saying that JK Rowling is allowed to create her universe, but the minute she publishes page one I get to take a steaming crap on a typewriter and call it “Harry Potter II: The Tweakening”. What artist would create commercial work under such conditions?
For example: say it was totally legal to make your own Star Trek novels and movies and TV shows, starting from the day they broadcast the first pilot. And say a cottage industry of Trek products springs up, but on a commercial basis rather than the endearing fanfic we mostly got. And say that those commercial efforts found some success.
Roddenberry now finds his ability to create material compromised. One, he has to deal with the complexities of other people’s canon, and how to integrate that, or how to rationalize ignoring that. If he integrates other canons, then he loses that primary authorship and the right to control his universe. If he ignores the other canons, then he loses fans, who don’t care much about authorship and who aren’t likely (in the main) to keep track of details like “which Trek canon is this” – but who ARE likely to get upset when details they took as given become disestablished by new authors (or old ones).
It becomes a mess. Any popular item will draw imitators and cynical hacks out to simply drain cash from the franchise. So the canon becomes incoherent, and probably degraded. Not only does the artistic sensibility of the creator get trampled on (“ah, the characters I shed blood to create, in a licensed-by-Amp edition comicbook ripoff. Oh, they’re pole-dancing whores now. Charming. Where’s my cyanide pills?”), but hisher financial interest in the enterprise is devalued as well. Could Paramount have made ten Trek films if they had people releasing “Star Trek: The Anime Version” ripoffs?
Here’s the other thing. If an author WANTS to create a universe where things work the way you want them to – free contribution, etc. – there’s nothing stopping her. Simply license subcreation and work out structures to adjudicate canonical issues and create guidelines for subcreators. That’s how the “Thieves’ World” people did it. Also God, from what I understand.
I wouldn’t have thought you could have come up with an issue where Mandolin and I would be united in opposition to you, Amp. ;)
Jake @ 30:
I do try to understand your arguments. Honest, I do. But “People tell stories all the time” doesn’t strike me as a reason why copyright shouldn’t exist in its present form.
The purpose of copyright law is to insure that NEW stories, with NEW characters are protected so that people are encouraged to create something NEW. Nothing in copyright law prevents people from sitting around campfires, or walking down streets, or making up stories at children’s bedtimes..
If you look at Tom Clancy novels, the basic themes are recycled from other Cold War / recently post Cold War stories. This doesn’t mean you can no longer write a novel with some form of Cold War-Spy-Action-Adventure theme. It just means that the story he created, with the characters, back-story, and other elements are Clancy’s playground.
I’ve looked at “Hereville” from time to time (and for Amp, “Yochoved” is already a female name. Not sure if that got cleared up after the “Family Portrait” panel.) and I know Orthodox families that are a bit like it. Doesn’t mean I can’t make up my own stories (or tell true stories — true stories of frum families are also very entertaining), just means that the characters, story, back-story, etc. of “Hereville” belong to Amp. You can’t take Mirka and turn her into a Conservative Christian fembot.
Where I take issue is the notion that you or others want to do something with those characters — especially since you said that new stories don’t require new characters. What EXACTLY is it you think you can’t do, WHY can’t you do it, and why do you think you SHOULD be able to? Perhaps if you explained that I’d understand better.
I don’t know why, but this makes me think of the NY pizza wars. “Famous Ray’s”, “Original Famous Ray’s” and “Famous Original Ray’s”.
But I think the problem here is that Amp & I are willing to compromise where the other side doesn’t seem to be willing to do so. I think current copyright laws are fucked up beyond belief. I believe that a person has the right to their creation for a limited time. A limit within reason. 5 years, 10 years maybe even 20 years. I’m willing to try Amp’s mandatory licensing schedule even though I have my doubts. Why? Because what we have now is ridiculous (thanks, Amp @ 33 for pointing out how current law benefits corps. over artists).
When something like “Breakfast of the Gods” is prohibited from selling commercially there is something very, very wrong. Being able to shut somebody down because they’re using a 45 year old character that your company hasn’t used in 37 years by threatening to sue is just not right. MM never falling into the public domain (unlike “kleenex” or “xerox”) is wrong. MM is part of the culture now in a way that seems to me to prohibit ownership by a single entity.
Patents don’t last centuries, why should trademarks and copyrights?
I agree with you entirely on the durations, Jake, it’s the Disney Welfare Act, not the Copyright Act. I think it should be lifetime of the creator (the individual, not hisher corporate home) plus a few years to allow widows to collect. Mickey should totally be public domain at this point.
Jake Squid,
But what you and Amp are proposing is way beyond where the copyright laws were for most of U.S. history. I completely agree (and from what I can tell, so does Mandolin, FCH, et al) that the Sonny Bono Copyright Term Extension Act sucked and was possibly even unconstitutional. Though it should be noted that a significant motivation for the law was the EU’s f***ed up directive requiring a “author’s life plus 70 years” copyright term and mandating reciprocity (i.e. the citizens of a country that did not have that long a copyright term would not be able to make use of the EU term in EU countries).
Anyway, no one wants to contravene the Constitution and have unlimited terms for patents and copyrights. The question is how long and under what conditions a patent or copyright should exist. I think it is a good thing to have patents and copyrights to reward people for their investment in their work, and for the rights under that patent or copyright be such that other people can use that work only with the creator’s permission. A copyright that enables me to get paid a fee but have no control over who uses my work nor how is almost an insult.
FCH,
I wasn’t trying to say that you don’t, simply that we view things so differently that it is often difficult for me to communicate my thoughts to you. Sorry if I sounded like I was blaming you.
This isn’t strictly true. Harry Potter and the Deathly Hallows is a new story with old characters. The same is true of the 87th Hardy Boys novel and the 4000th Spiderman story. The purpose of copyright law is to ensure that the creator (or the creator’s assignee) can profit from her creation. My question is, “How long is it reasonable for a creator to hold exclusive rights to their creation? 10 years? 50 years? 10,000 years?” I think that the answer is definitely under a century, probably under a score of years. You think the answer is forever (as displayed by your statement about exclusive ownership of MM).
I say that people have made new stories using old characters for millenia (and made their living doing that for a long, long time), you ask what that has to do with copyright law. I reply that copyright law ends that practice, seemingly for eternity, for insufficient reason. I say that copyright laws need to be changed to limit that period of ownership, you say that ownership should be eternally exclusive.
You are unable to see why “Breakfast of the Gods” wouldn’t work with new characters, I see a compelling reason to use existing characters (both iconic mascots and obscure ones).
Your assertion that putting a thin layer of cheap paint on recycled characters is completely different than unashamedly using existing characters and is progress is bewildering to me.
And Orcs. Should those have been prohibited from use by subsequent fantasy authors? Would it have been superior for those stories to use essentially the same humanoid race but call them “Krugs” instead? How long should it be until others can commercially profit from the Bilbo Baggins character?
Should WWII newsreels be in the public domain now? Should they be public domain in 40 years? Should they ever be in the public domain? Why or why not?
I feel that these are all valid questions that are being brushed aside. I feel that intellectual property is being looked at in the same way as acreage or material goods and I don’t think that is right.
Why aren’t cover bands (Lez Zeppelin, El Vez, Zen Tricksters, etc.) prohibited from commercially profiting from the works of others?
There is a tremendous inequity both in the way copyright is enforced (you can perform somebody else’s work for profit, but you can’t sell recordings of those performances?) and in the seemingly eternal exclusive ownership of intellectual property. There is an obvious sort of hypocrisy in that one can have effectively eternal exclusive ownership over intellectual property but not over, for example, patents on drugs.
This is one case where I see the libertarian position on this issue, while far from perfect, superior to where we are now. Is there no middle ground that would suffice?
“I reply that copyright law ends that practice, seemingly for eternity, for insufficient reason. I say that copyright laws need to be changed to limit that period of ownership, you say that ownership should be eternally exclusive.”
Except that Constitutionally, copyright law CANNOT have an infinite term of copyright. When did FCH say she favors eternal copyright?
Uh, “Kleenex” and “Xerox” are both active trademarks — feel free to check the US PTO website. Trying going to a Taco Bell and ordering a Coke. There are people from Coca-Cola who do precisely that and they will sue the hell out of anyone who sells a Pepsi to someone who asked for a Coke.
“Mickey Mouse” isn’t just a character, it’s a business. Like “Kleenex” or “Xerox”. I think this is where my reluctance to budge on this issue comes from. If “Mickey Mouse” were a brand of sneakers, I think it would be much clearer that “Disney Sneakers” gets to have exclusive rights to making “Mickey Mouse Brand Tennis Shoes” and not have some sweat shop start knocking them off. But instead “Mickey Mouse” is a drawing consisting of an antropomorphized mouse, and not a paper product or document processing system. What is it about paper products and document processing systems that is so different, as a business entity, from a cartoon maker? Why does one business get protection and another does not? Nothing kept Charmin from making tissues, or Sharp from making copiers. Make up your own character (“Stuart Little” much?) and do your own thing with it.
That’s a debate that I’m willing to have and I’m open to argument from either side. The licensing fee idea is Amp’s, not mine. I prefer to sharply limit copyright term. But I do think that the licensing fee is superior to existing copyright law. If the only two options were copyright law as it currently exists and copyright law as licensing fee, I’d go with the latter option.
“But I do think that the licensing fee is superior to existing copyright law. If the only two options were copyright law as it currently exists and copyright law as licensing fee, I’d go with the latter option.”
Except those aren’t the only two options. What we need is a global copyright regime that will limit copyright terms and avoid the kind of stakes-raising that the EU forced through its directive. WIPO could run this. The options are not as limited as you believe.
PG is absolutely correct — I’ve never claimed that copyrights should last forever. But right now there is so much focus on Mickey Mouse and Mickey Mouse really is unique, relative to, say “Moby Dick”.
In that way, “copyright” and “trademark” law have collided. A “trademark” is a MARK, which can include a collection or words, symbols, graphics, etc. that represents a specific form of TRADE or commerce, including service offerings. If trademarks don’t “live forever” (so long as the business is engaged in commerce) it means that sooner or later, someone can come along and start using them for something different. If “Mickey Mouse” gets to be used by anyone after a number of years, why doesn’t “Coke”? Why can’t Sam’s Club start producing “Coca-Cola”, given that “Coca-Cola” is now a very, very old trademark?
Comment # 25 where she wrote:
I, for one, don’t believe that MM is properly protected by trademark. Where “Kleenex” is a brand (see my capitulation on Kleenex below), MM is, in fact, intellectual property of Disney. Plus Disney will sue, or threaten to sue, the living crap out of anybody who tries to commercialize even a parody of MM . See, for example, The Air Pirates or Outland.
All right. I was wrong about “Kleenex” & “Xerox”, but the point applies to aspirin, cellophane, pilates, yo-yo and others. Kleenex and Xerox are both genericized at this point and, therefore, are at risk of losing their trademarks should those companies make a mistake.
Yes, I think there needs to be a clarification about the difference between a trademark and a copyright, as there seems to be some confusion between the two. Trademarks aren’t covered by the Constitution (“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”), so there isn’t a “limited Time” requirement for the term of their protection; it can be infinite, whereas that for copyrights and patents cannot.
A trademark is neither a writing nor a discovery; it is a mark associated with products. A company can sue successfully over use of its trademark only if it can show a preponderance of evidence that the use will create confusion in the market.
E.g., if I decided to start making “Blackberry” brand mascara, it’s very unlikely that Research in Motion would be able to sue me for using their trademark, because it’s very unlikely that someone would think that a technology company had suddenly gone into the cosmetics line, and it’s also unlikely that RIM would be able to derive much benefit from licensing its Blackberry name to a cosmetics maker (because nothing makes ya feel more attractive than work-related emails, wooh!).
In contrast, Mickey and Minnie have been licensed out for just about every purpose imaginable (so has Hello Kitty … really disturbing number of things that poor mouthless cat has been on). If I start a Minnie brand of makeup featuring a little mouse, consumers are likely to be confused and think it is a Disney product.
I didn’t say that they are. I was using that to clarify my position. Did the rest of my comment not signify? You know, the sentence immediately preceding what you quoted where I wrote: “I prefer to sharply limit copyright term.”
That is true now as I stated above wrt genericised trademarks. Kleenex & Xerox are already on that road. MM, were I to consider it a valid TM, would be, too. MM should have been a copyrighted character now in the public domain. 81 years is too long to remain under exclusive ownership.
Can the Melville airs TM Moby Dick and reclaim ownership in that way?
I don’t know. Coca-Cola is a material product and not an intellectual property, right? I suppose that makes a difference between the soft drink and the cartoon or literary character when it comes to property rights.
Jake,
But you’re conducting this discussion in a rather false tone of “everyone — especially FCH — who disagrees with me must favor unlimited copyright terms,” when in fact I haven’t seen a single person say she favors such. That’s why I’m very wary of your false dilemmas. The choice is not between the copyright law we have right now, and the copyright law Amp advocates in which, from the moment of creation, creators are forced to accept a government-set fee for licensing their work regardless of whether they think the fee sufficient or want to license the work out at all. Indeed, the people who are most well known in working to make our copyright law more rational (Lawrence Lessig comes to mind) are advocating against those copyright term extensions, not against the very existence of copyright.
You’ve also conflated copyright and trademark, which are extremely different in how they are treated under the law. The name “Harry Potter” is probably trademarked, and this allows Rowling to license it out for lunch boxes and sleeping bags if she wants to do so. However, the stories of HP are copyrighted. You keep talking about how it’s the being able to tell stories that’s so important, so I don’t understand your beef with trademark. Tell the story without using trademarks — what’s so hard about that? “The Simpsons” successfully created a world in which brands that do not exist in real life became so well known that they got licensed out to be used on real products in promoting the movie. (I am still sad that I never made it to a 7/11 in time to see it as a Kwik-E-Mart selling Buzz cola.)
I think it would be useful to look at the history of comics to see how important it is for creators to retain control over their works. Image comics broke out in the 90s after the co-creators of characters like Venom (who is a big enough part of Spiderman canon to be included in the 3rd movie) were denied licensing royalties – essentially keeping them at the per page rate while their creations made the publishers more money than ever. The sad stories of authors/illustrators who never received credit for their work and died dead broke after helping to create giants like Marvel and DC (I think Bill Finger falls under this banner) should serve as a reminder that it’s not the big corporations who always have protection from copyright laws. Sometimes it’s what keeps them from stealing your work and never giving you credit.
There’s also an important concept that hasn’t been addressed yet in this forum: oversaturation. If something is everywhere, it tends to turn people off of it. Think JLo. If you don’t retain control of your intellectual property, it can threaten the market for that property just simply due to people being sick of the concept.
I think the Creative Commons licensing is starting to approach this subject in a fair way, by keeping the author in control of their own work yet allowing them to grant less strict licensing than just your standard copyright. It will be interesting to see if it shapes the market.
Ampersand
It’s probably especially if not uniquely untrue of creative works
Depends on what’s meant by competition. Rowling produced her novels fairly slowly (three year gap between Goblet of Fire and Order of the Phoenix; two year gap between Phoenix and Half-Blood Prince; two year gap between HBP and Deathly Hallows. If there were a forced license for others to be able to write Harry Potter stories set in the world Rowling had created, then I think the same canon problem that was identified for Star Trek could arise: publishing houses could hire perfectly competent writers to produce books set in the same world, that were heavily promoted and diverged completely from where Rowling was going with the series. This dilutes the brand (less of the heavy anticipation for each new story from that world) and confuses the readership.
“Wait, didn’t ‘Harry Potter and the Silver Sickle’ say that Dumbledore had been married but his wife was killed by a Muggle? That doesn’t fit with the story here in ‘Harry Potter and the Golden Chain’ that Dumbledore’s wife is still in hiding from Voldemort.”
“Yeah, but ‘Golden Chain’ is Random House’s Harry Potter, not Houghton-
Mifflin’s.”
The whole thing would get more associated with the corporate entities rather than a single author with a singular talent.
Because trademark and copyright exist for very different reasons. While copyright exists to promote the progress, etc., trademark exists largely to prevent brand confusion. So, for instance, I can’t sell beer with the Bass Ale triangle on it unless I’m Bass Ale. This has been the case since 1876. The rationale has nothing to do with how long the mark has been associated with the brand–so long as it’s still being actively used, it would cause confusion if someone else were to use it.
In short, Sam’s Club can’t produce “Coca-Cola” precisely because it would allow them to deceive their customers, which is what trademark law is designed to prevent. They can make a cola, and they can put it in a red bottle, but when they try to pass it off as being Coca-Cola, they’ve crossed the line.
grendelkhan,
But if Disney has trademarked Mickey Mouse for the purpose of selling products ranging from coloring books to beverage coasters, why should I be able to promote my own products using that trademark simply because Mickey Mouse also has been a character in many copyrighted writings?
Notably, using “Mickey Mouse” in a way very clearly not associated with a cartoon mouse seems to be fine. For example, a three pronged type of power cord is commonly called a “Mickey Mouse” type for its similarity to the iconic simple version of Mickey: two circles over one circle.
Also, I believe Disney has abstained from pressing either copyright or trademark claims against South Park for SP’s “The Ring” parody of the Mouse that depicted him as evil corporate overlord.
I’m so confused. This editorial says that I should vote Obama, but I thought I previously read an editorial saying I should vote McCain! How can I reconcile them?
Oh, that’s right. We’re well accustomed to the idea that different authors of editorials say different things, even when discussing the same topic.
I don’t see why we’d have such a problem extending that same concept to works of fiction. True, that’s not our current practice. But if we changed the law, we’d rapidly come to change our expectations, too. We’d start to look for the “brand,” just as today you need to be aware that Fox-brand news is not the same as MSNBC-brand news.
Presumably many (most?) people would loyally stick to the original author’s brand. But I could also expect that some people would come to embrace a string of Harry Potter books written by a favored author, or a favored publishing house (houses that tried to appeal to furries, or free-marketeers, or furry free-marketeers, or whatever). Basically, the same as fan fiction today, only in paperback.
Would such works deprive the original author of income? I kinda doubt it. I suspect the growth of imitators would serve as advertising for the original — at least where written fiction is concerned.
How would this play out in the performing arts world? Would going to see a KISS tribute band reduce your willingness to pay for tickets to a KISS concert? It might. Similarly, seeing the high school’s production of Jesus Christ Superstar reduces my willingness to pay to see the professional production. So if KISS and Andrew Lloyd Weber didn’t get a piece of the action for the low-budget versions of their work, I can imagine that they’d actually be harmed. But I don’t have the same sense about J.K. Rowling.
I should also mention–I’m surprised nobody else did–the status of dōjinshi, which are Japanese fancomics. There’s apparently some sort of truce between copyright holders and dōjinshi authors, with many professionals getting their start there. (I should add that while dōjinshi just means fan works, sleazy porno versions of general-audience works are common enough that, in English at least, the word is frequently used to mean, well, sleazy porno versions of general-audience works.)
It’s a bit disturbing how thoroughly a cargo-cult understanding of the law permeates fandom–the idea being that, since everyone’s posting this sort of thing on the internet, there must be no problem with it. Sadly, no! While that article focuses mostly on legal problems relating to textual descriptions of underage characters having sex, it also touches on copyright issues, which are no less real.
Witness, for example, the habit of putting disclaimers at the top of HP fanfiction noting that, for example, “Disclaimer: Harry Potter belongs to J.K. Rowling!!!!! The only characters that are mine are the ones that you’ve never heard of from the Harry Potter series. (Namely Maggie)”–this was the disclaimer on the first HP story I saw on fanfiction.net–which makes not the least bit of difference as to whether or not the story is infringing. Yet you’ll see these ridiculous things at the top of pretty much every bit of fanfic. Why? A cargo-cult understanding of the legal issues involved.
It’s the same kind of silliness that leads to ridiculous contraptions like Monolith, as explained here.
It’s well and good to claim that the law is ridiculous. In many places–copyright terms, I’m looking at you–it most certainly is. But claiming that the law isn’t what it is, but instead is some agglomeration of folk wisdom and vague memes worn like totems by middle-school fanfic authors… that’s counterproductive at best, and actively harmful at worst.
Part of the problem here seems to be that anything the law lets me do, it also lets Viacom do, and Viacom’s motives are probably not nobler. So the people thinking of the consequence of me using Disney’s intellectual property are arguing at cross purposes with the people thinking of the consequences of Disney using mine.
So I have no doubt that PG’s Good Omens movie would be made with a fan’s fervor, geared toward conveying her love of the book, and with due respect fr the source material. I have grave doubts that any of that, let alone all of it, would be true of Michael Bay’s, r even Steven Speilberg’s—that is, of a major entertainment conglomerate’s.
You… can’t, not that I’m aware of. How did you get the idea that I was saying so? Copyright and trademark protect different things; Mickey Mouse is both copyrighted and trademarked. Nobody has to choose one over another.
Is it called this in any official capacity? I don’t think it’s any more possible to stop people from calling it a “Mickey Mouse” plug any more than it is to stop people calling any kind of instant film “Polaroid”.
Now that’s interesting. While copyright isn’t contingent on the owner defending it, trademark is–consider all of these generic and genericized trademarks, containing everything from escalators to heroin. Should Disney bring a later trademark-infringement suit, that might hurt their case. But then, it might not; I’m certainly not a lawyer.
nobody.really,
That your only examples are for people’s discussions of facts (editorials, FOX vs. MSNBC), as opposed to creative work, is significant. Different interpretations of facts is called “spin” and is supposed to be discounted in the search for truth. Different interpretations of the eternal verities is the whole point of writing new stories.
Similarly, seeing the high school’s production of Jesus Christ Superstar reduces my willingness to pay to see the professional production. So if KISS and Andrew Lloyd Weber didn’t get a piece of the action for the low-budget versions of their work, I can imagine that they’d actually be harmed. But I don’t have the same sense about J.K. Rowling.
It’s not just a matter of getting paid; the versions of musicals licensed to high schools often are significantly different from the “professional” version, and deliberately so. I recently saw Choate high school do an amazing performance of “Les Miserables,” but it was missing one of my absolute favorite songs where we come to understand what drives Javert (I like this because otherwise Javert is oversimplified into a villain). An alum of the school’s theater program said that always happens because high schools are not licensed to do the full version, even though the schools still have to pay for every script and for putting on the performance, because the owners want to ensure that non-school productions have a competitive edge. Should this also be illegal, and the owners of “Les Miserables” be forced to license the same version to everyone at the same price?
grendelkhan,
I don’t think a trademark suit re: the South Park episode would have had much success, given that South Park is itself a well-established brand known for satirizing popular culture and politics, and that there’s very little likelihood that a consumer would confuse the South Park episode with a Disney product. I suppose there might be some small tainting of the brand, inasmuch as I no longer can hear Mickey’s giggle without thinking of his kicking the Jonas Brothers (also not trying to pursue trademark claims) in the testicles, but it’s not a problem of confusion.
Is it called this in any official capacity?
If by “official,” you mean when such power cords are sold in the market, yes. See, e.g., Cables Unlimted 6-feet Mickey Mouse Power Cord or Clover Mickey Mouse Laptop Mains Power Cable Lead C5.
No kidding? I didn’t know they were licencing this show yet. The community theater has been sorely tempted to pirate it; none of us are getting any younger. But orchestrating the score would be a pain….
(How do you measure damages for piracy, by the way? If it’s in proportion to box office receipts, that’s no problem at all!)
What song is that? Stars?
Did they really cut “Stars?” That would suck. But I think sometimes high school performanes are cut for time or technical reasons. I don’t know how that works for licensing.
Well, YouTube has a few examples of high school production versions of Stars, so I’m guessing that’s not the song PG was thinking of.
But, sure enough, there are several high school productions out there. I’m behind the times.
Oh, and a web search suggests that “willful” copyright infringements can be punished by $100,000 per incident. Don’t suppose we could draft scripts and scores, rehearse over the course of two months, mount a production and then explain how it was all inadvertent?
Not to go off-topic or anything….
It isn’t off topic. It’ FCH’s example of the easy way of making stories. Not only aren’t the characters original, the story isn’t original either. The musical offers nothing in the way of progress since the characters and story aren’t original. To apply FCH’s words from comment #6 to the musical version of Les Miserables.
Do schools and community theaters really get fined for performing plays and musicals without purchasing a license? That’s so weird. Why doesnt’ that happen to tribute bands?
Somehow I missed that you were suggesting percentage, Amp. Sorry for the misunderstanding. That does sound better, and addresses some of the economic issues we’ve talked about. I still can’t imagine that this system wouldn’t hurt a lot of creators, though.
I don’t know if you read tor.com, but they linked a post by author Patrick Rothfuss there a while back about the long wait for his second book, and the kind of mail he gets. Part of his post read:
Now, some people may say that authors should “toughen up” or perhaps avoid the internet altogether if they cannot do so. But I think that’s unrealistic. And if just getting bitchy e-mails hurts the creative process, can you imagine what getting people’s e-mails about the book you DIDN’T write would do to you? (“Dear author, I like Brand X’s take on your story better. Maybe you should try adding more action and a cat-girl like X did?” “Dear Author, your writing sure has gotten better! My friend gave me Brand X to read, and so I went back and read the first book, and you are lucky anyone published that pile of shit!”) The artistic temperament doesn’t always (or even often?) occur naturally alongside an impenetrable hide.
I’m not saying that that’s the primary argument against a system such as you suggest. But allowing creative control to remain with authors is not just a default in our legal system* but a fundamentally humane thing. As Charles S. suggests about Earthsea, giving free rein to modifiers could destroy the original creator’s desire to continue, or to create at all. Getting a royalty check isn’t going to cheer you up too much if the derivative work generating it is one you execrate with every fiber of your being.
Being an artist in our society isn’t easy. One of the things most artists do get to hold onto is their work, and the self-respect that work engenders. I really feel that your proposal, while its intent is to empower other creators, would compromise many artists’ sense of ownership and wholeness, and has the potential to strip them of their pride and self-respect.
As Robert says, no one is stopping creators who feel as you do establishing such systems. No one is stopping Cory Doctorow from going creative commons, for that matter. But I would fight hard to stop such a system from being imposed on all artists, will they, nill they.
*I did read your examples, and there are obviously some issues with comic books, but the creators had to sign over control, before or after the fact. By default it rests with them. There are obviously flaws in our current system — I’m no fan of the interminably extended Mickey Mouse copyright, myself — but those systems aren’t entirely the laws. “Work-for-hire” isn’t intrinsically exploitative — it’s the basis for most of our engineering work, et cetera — but if the industry standards and customary use of that law are exploitative, then surely one can work to change the industry standards, educate new cartoonists, and perhaps create other, more equitable opportunities? Why should the solution to one set of frustrated creators be a complete paradigm shift that many other creators don’t want at all?
Jake Squid said:
I’m not sure that’s intellectually honest. I’ve just scanned over the first few pages and, although some of the characters haven’t been used in ages, a very large majority still appear on cereal boxes and many have been used more recently that “37 years” ago. And reading over what I’ve seen implies that the guy is even using some of the phrases from the advertising and specifically trying to link the characters to the cereals they represent… And all of that strikes me as trademark infringement, not copyright.
Now, I’m of the mind that this falls into satire. No more or less than Robot Chicken or South Park, which are 100% protected from copyright lawsuits because they are, in fact, satire/parody.
And in my initial glance over, I saw nothing on either of his websites saying that this work was being offered online because it violates copyright or trademark. And if it IS the latter, he’d get sued even for putting it online (which seems pretty clearly to not be the case). If someone can point me to something that says that this is the case, I’d appreciate it (though I’d still say that his best option would be to pick up a decent lawyer and argue “parody” as his defense against lawsuit and countersue for legal fees in every case…).
But most online comics are online because it’s cheaper than printing and allows talented artists/writers to get their name out there and bypass corporate backing.
But in the end, it still comes around to the argument that someone else posted above: the only entities that would benefit from Amp’s “copyright” plan would be corporations. Not the artists that created the work. Because corporations would use their greater resources to literally steal every idea that made it into the marketplace.
You would never see another “J.K. Rowling” ever get their shot at making it bigger than the Queen, because the corps would see to it that she only ever got the minimal legal percentage, and force her to let them publish whatever they wanted and do whatever they wanted with her work from the day she published the first work. She would have even less control than artists have now (which I agree is pretty terrible and needs to be fixed… but not by taking everyone’s IP rights away).
It’s a baby and the bathwater type of solution.
grendelkhan,
You’ve come late to the party. I’m very familiar with intellectual property laws, having worked with patents, trademarks and copyrights for nigh on 30 years. The PTO isn’t my favorite charity yet, but getting close.
My (rhetorical) question was trying to tease out the differences between tangible and intangible products. As someone who works almost exclusively in “intellectual property fields”, my work is no less valid just because it’s “intangible”.
Jake Squid @ 48:
Why? Because you say so? Disney, as an ongoing business, is continuing to use and develop the character “Mickey Mouse”. You’ve yet to answer the fundamental question about intellectual property — why can’t someone who owns “intellectual property” maintain ownership for however long it is a going concern? Should the copyright for “Steamboat Willie” expire into the public domain? Absolutely. But “Mickey Mouse”? No more so than any other branded product that’s still in use. And that’s the difference between “Mickey Mouse” and “Moby Dick”.
No. It’s well established in trademark law that once something passes into the public domain, that’s it — it’s done. Some trademarks “come back”, but typically, no. Bayer can no more get back “Aspirin” than Melville’s heirs could get back “Moby Dick”.
But that argues against your contention that Mickey Mouse should come into the public domain — Herman Melville, his heirs and assigns, haven’t produced anything about Moby Dick in decades. Walt Disney’s heirs and assigns have continually done so since the trademark was registered in 1928. Should a business, just because it deals in intellectual property, be harmed in ways that a business which deals in physical property isn’t? Why can’t I start making John Deere tractors? Or if it’s about the artwork, why can’t I use a leaping deer to sell my tractors? That trademark is older than Mickey Mouse — surely I’m more deserving of selling tractors with leaping deers on them?
No, “Coca-Cola” is a registered trademark of the Coca-Cola Company for their brand of carbonated cola beverage. What it describes is a beverage, what it is is a trademark. Trademarks aren’t nouns, they are adjectives. Turning a trademark into a noun (or verb — “google” is going to go generic some day soon) is one of the first steps in making it a generic term in the public domain.
I don’t think JK Rawlings has much to worry about. She’s very famous and widely loved. Her name is it’s own brand. But what about say, John Scalzi? He supports himself by writing stories. Would I have wanted to buy Zoe’s Tale if I’d already read 12 other books in the same universe? Maybe, maybe not. My time to consume fiction is limited. I might have had to pass on that one. If I had time and wasn’t burned out on the setting maybe I’d have bought the book that tied into the cartoon show I liked. Even though neither was affiliated with the creator.
I think amp’s proposal would advantage people (or companies) that were best at making product quickly and at marketing their product. I think it would advantage people with lots of different ideas more than people who play in the same sandbox for a long time. RA Salvatore or Tracy Hickman come to mind. They’d get screwed. Kevin Smith would likely have lost big, since lots of people would have done Jay & Silent Bob stuff without him.
I think the license would be negotiated to the advantage of the established players in the entertainment industry.
Also, as far as mickey mouse goes. My girls love that guy. They enjoy the hell out of mickey mouse clubhouse at the moment. And as far as kids shows go it doesn’t suck. So, I get some value in it still being there.
Oh, gods, where to start?
I’m a fan of Transformers, and a fanfic writer of Transformers. I’m part of an internet community of like-minded people. We see our work as a celebration of the originals which inspired it—it provides, first and foremost, a new way for us to enjoy the characters and concepts we so love, and often strengthens our love for the series as a whole by creating new and engaging faces to the concept of “Transformers.”
I became a Transformers fan because of a fanfic. Because the characters were communicated to me by a fanfic author with skill at invoking love for them and enjoyment of the story concept. I would never have looked twice at the canon, cartoon or movie or toy, because the first look was not marketed such that I was interested in it. What I did look at was the writing of a friend of mine whose writing I tend to enjoy—and voila! Twenty bucks for a DVD, ten for a theatre ticket, and about eighty for various toys and action figures—so far—to the official creators and license-holders.
It doesn’t detract or distract from the original. In the fandom, we’re always aware of canon sources, and since nobody blindly copies the original—why would they, when the original already exists?—it remains in its privileged position as the original fount of creation.
We’re also really good at keeping strings of continuity coherent—many fanfic authors have their trademark alternate universes or characterizations or character histories, and that conversation above about conflicting facts from different sources does not happen. Each work is synchronized to its own yardstick, or chooses which other yardstick to follow (canon, part of canon, another author’s AU sometimes) and that is generally explained.
One thing it does that original fiction cannot do, is satisfy our love for and curiosity about the characters. We fall in love with them, on the page or on the screen, and we want more about them—more adventures, more detail about who they are, what their experiences may be like in a situation they’ve never encountered in canon. What the glorious whole of their personalities and histories might be—are the villains evil or tragic—what doubts and struggles do the heroes have—who might they love—how might they get along with a character they never had much screen time with—what kind of relationships, pastimes, inner demons, histories, hopes and fears do they have? Answering these questions in a fanfic invokes all the more love for a character, enticing more fans to expand their fandom by loving a new character—it is an associative benefit: if someone makes Fireflight or Thundercracker or Bumblebee interesting so that a reader becomes a strong fan of that character, that effect is extended to that character in canon, for the same reason that makes fancreated works on the original theme fascinating. Thus the original is well-paid for what it inspires.
What fanfiction does, basically, is expands. It takes something wonderful and makes lots more wonderful things, each with the original at its heart. It can be expanded in ways that the original creators never had time for, or in genres that aren’t their forte or aren’t worth making a movie out of, but bring great joy to audiences—a day in the Transformers’ lives as a slapstick laugh riot, or a romance that didn’t happen or couldn’t happen in something for mainstream consumption. Originals, you see, are produced to satisfy a mass market, and fanfics are written, often, for a niche market—the few people who want more than canon provides them, and who reward canon with continued loyalty because it’s all one fandom.
And it keeps the concept, Transformers or Star Wars or Star Trek or Harry Potter, fresh and wonderful and new and ever-more-engaging, so that the fans need never tire, having hashed out everything canon to the point of boredom. There are only so many times one can watch the Star Wars trilogy, and then one’s engagement with it fades—but the Expanded Universe in that fandom created new things—new questions, new characters, new plot—and brought the concept of “there can be more” to the fans in a new way. Creation is more engaging than merely viewing, and thus are fans kept and drawn in more and made bigger fans.
Fandom settles down to embers, often, when there’s no new fuel. Heir to the Empire turned Star Wars back into a roaring bonfire, and further new material has kept it burning hot ever since, courtesy of both fans and management.
What fan-created works do, is allow fuel to be placed on that fire by all those who seek its heat—the result is a hotter, brighter fire, and happy people who love its heat and brightness even more.
One thing it does that original fiction cannot do, is satisfy our love for and curiosity about the characters.
But you’re a fan. A super fan maybe. Your curiosity can never be satisfied. For most people high quality fanfic (if marketed correctly. Would be an almost perfect substitution for other works by the original author.)
Kyra… I suspect that you’ve missed the point of this conversation (or perhaps, I’ve missed it).
I don’t think anyone here is dissing FanFic or saying that it should be subject to copyright restrictions. (I know I’m certainly not).
The conversation is whether you should be able to make money from your FanFic, even if it’s at the expense of the original or current holders’ control of said copyrighted material.
Current copyright law is not, to my knowledge, generally used to stymie Fan Fiction or other “fanon” sources except to keep you from selling it (the only exception that I’m familiar with is a certain RPG writer with a love for cease-and-desist orders targeting the online community devoted to his work).
Now, whether or not you actually could successfully use copyright law to do so is outside of my knowledge (since I am not a lawyer), though I would assume that it’s probably one of those self-regulating things since suing someone who is making no money from the derivitive work is likely to net you less than your legal fees are likely to cost you.
joe said:
Unfortunately, we have no evidence that this is truly the case. How many non-Potter books have you read from her?
I’m willing to bet none (since, to my knowledge, she’s never published anything outside of the HP Universe). Which means that she might just be the richest one-shot wonder the world has ever known.
I mean, you are probably right, since the name is so recognized… but it’s only recognized for one set of works so far.
On the other hand, R.A. Salvatore and Tracy Hickman have a whole slew of different novels and story arcs that don’t deal with the same characters and/or worlds. Sure they both got their “big start” with Dungeons&Dragons novels (that seems oddly oxymoronic to me, but I’m sticking with it anyway), but they’ve both radically expanded their repertoire since then. There are people out there that look at the fantasy bookshelf in Barnes&Noble and say: “Oh… Tracy Hickman’s got a new series of novels out. I love that guy!!” Hell Salvatore wrote a damn Star Wars novel wherein he killed off one of the core characters… My fiance is STILL pissed off at him for that and now won’t buy novels written by him based upon his name alone.
Meandering side-track aside, the point is that they actually have consistent name-power (for good or ill) and have had it for some time.
You might find it interesting that the character of “Tarzan” is trademarked, but the original Tarzan novels by Edgar Rice Burroughs are in the public domain. So, if you want to publish a Tarzan novel, you can, but if you write a new one, you risk running into trademark infringement.
So I have no doubt that PG’s Good Omens movie would be made with a fan’s fervor…I have grave doubts that any of that, let alone all of it, would be true of Michael Bay’s…
I have a mental picture now of Azrael (in Madame Tracy’s body) riding the scooter along the highway with the old witchfinder, and having car after car explode into flames, flip over into the air, or suddenly have a skanky 30-something “college girl” appear in a bikini to work on its paint job.
Thanks.
I entirely disagree that fanfiction writers should be allowed to profit from copyrighted work. Current copyright law has all kinds of problems and certainly I think they should be allowed to produce and disseminate their work, but I can’t see how it’s ok to make money doing so without the copyright holder’s permission.
With that, there’s no infringement of free speech. Free speech doesn’t (and shouldn’t) allow people to profit from the work of others without permission and in fact that was the whole point of copyright laws, to stop unscrupulous publishing houses selling editions of works without the author’s permission or any compensation.
If you want to use the world/characters/whatever that someone else has created and it’s in copyright, there are only two options that I see as being in any way reasonable:
1. Put in on your LiveJournal or blog or print it out for friends and family or whatever else you want to do, FOR FREE.
2. Get the original copyright holder’s permission, including negotiating the conditions. If they want a fee, you pay them a fee. If they want royalties, give them royalties. If you think they’re asking for too much and you and willing to pay that, tough. It’s their intellectual property and you have no right whatsoever to profit from it without their permission.
If you do that, there’s no infringement of free speech, because you can say/write whatever. And no-one’s preventing your artistic development, because again, you can say/write whatever.
Buying a book gives you the right to read and share that book, not the right to make a profit from unauthorised versions or variants. Artists’ work is still work and the idea that once they put it out there anyone should be able to rampantly steal and profit from it is ridiculous.
Second comment, for starters. And much of the discussion of for-profit non-original-author-based material is relevant to a judgment of fan-created works—there are more arguments in play than those about the ethics of making money from someone else’s work. Part of the discussion, for example, had to do with the effects on the original author of “flooding the market” with derivative works.
Kyra,
Yeah, but if no one can make money off the derivative works, they’re unlikely to be that “flooding.” In the absence of marketing, promotion, presence in bookstores and other outlets of mainstream media, the audience for it will be small. I consider myself a Harry Potter fan, but I’ve only read one bit of HP fanfic. The vast majority of a creator’s money will be made on people like me who aren’t going out of their way to find what’s good in the fanfic world, but instead mostly relying on the MSM outlets to suss that out for us. (There is probably some HP fanfic that’s even better written than Rowling’s work, but I’m not going to wade through the flood of semi-literate slash to find it.) And that’s why Rowling was OK with tons of free, online activity around her creation, and went batshit over someone publishing a reference book about HP when that book would be in bound, sold-in-stores form.
Looking back on this, it’s a bit odd that folks are so worried about brand dilution from the wide availability of fanfiction, when this is clearly not a problem for members of said fandom. Did the four hundred thousand Harry Potter stories on fanfiction.net mean that all of those fanfic writers and readers were less likely to go on to buy the next bit of canon? I find that difficult to believe.
Then again, fandom is a different culture, with different expectations than the majority of folks have. There’s a reason why the trope is called “Word of God”–while fans might still care what the original author(s) had to say, maybe the muggles can’t deal with that kind of confusion, and so fanfiction has to… stay on the internet, where fans who are really looking for it can find it, just as it is now.
I’m also a bit worried about the disdain for amateurs shown with the focus on fanfiction. Yes, fanfiction uses others’ settings and characters, but so did Wicked, and so did The Sandman. How did a discussion of derivative works turn into a discussion of what place amateur writing has?
I was thinking about the standard fanfic disclaimers that Grendalkin dismisses as cargo-cultism:
and I don’t think that the disclaimers have no legal significance. While the disclaimers obviously provide no protection to the writer against copyright or trademark claims (in fact, the would seem to make the writer’s position even worse, as they are admitting guilt up front), they would seem to provide a protection for the trademark holder against genericization. There are two arguments for this: the first is that the standard disclaimer ensures that there is no possibility of brand confusion, a fanfic reader is told up-front that this not a WB or Rowling authorized product, and that the characters are trademarked by WB; the second is that WB does not bother to pursue complaints against fanfic. If the legal department of WB believed that Harry Potter fanfic represented a dilution of the brand, threatening to make Harry Potter a generic name for a young heroic wizard in the modern world who turns evil, has sex with Draco or the giant squid, meets Buffy, is actually a lawyer, etc, you can be certain that they would shut down every major Harry Potter fanfic site, and would have done so years ago. A few million Harry Potter fictions unauthorized by the WB or Rowling that didn’t acknowledge in any way that Harry Potter was a trademark of the WB seem like they would probably make a good argument that Harry Potter was now a generic and no longer a trademark.
Trademark is use it or lose it, so clearly the WB believes (correctly) that unauthorized fanfic writers acknowledging that they are using the WB trademark and could be shut down at any moment is the trademark being used rather than lost.
The disclaimer also serves an essential function of acknowledgment within the fan community itself. If you look at any of the plagiarism scandals in fanfic communities, I think it is clear that if the swiped passages had been disclaimed as references or pastiche, those situations would not have been viewed as plagiarism.
Another non-legal but significant effect of the disclaimer is that since copyright is not use-it-or-lose-it, attempting to ensure the good will of the original author is an important step in not getting shut down for copyright infringement. Acknowledging the primacy of the original author and thanking them for allowing you to play in their world seems like a pretty obvious first step in not offending the original author.
I have been following this conversation for the past day and have found it both thought-provoking and unusually intelligent (by blog0sphere standards).
As the author of the Harry Potter rip-off mentioned elsewhere in this discussion (by A. W., and thanks for the kind words), I find myself in an interesting position. One would expect that I would be a fairly hardcore advocate of the “anything goes” approach to copyright law, since it might allow me to publish my James Potter novels. However, as a creator myself, I have always detested the abuses inflicted by the less-than-scrupulous on other people’s creations– i.e. those detestable window stickers that show Bill Watterson’s Calvin peeing on various things. I would want my own characters protected from such travesties wherever possible.
On the other hand, of course (there’s always another hand), I’d very much like to see some legal/artistic middle ground between the ridiculous polarities of “legitimate fiction” (that is, mainstream published) and “fan fiction” (that is, unauthorized copycat dreck). Example: my own James Potter stories, modesty aside, are about as far from typical fan-fiction as Kelly Sweet’s cover of “Dream on” is from a version done by a teenage kid with a Casio keyboard. Surely there could be some way to recognize legitimately fresh, entertaining and high-end “cover stories” based on established characters rather than lumping them all into the unfortunate (and deservedly so) grist-mill of “fan fiction”.
In the wake of my James Potter stories, I have gone on to write an original novel with the intent of publishing it. While preparing my book proposal, I harbored the belief that the fact that my previous writings had been read by a million people worldwide, translated into half-a-dozen languages, and appeared in the international news media would contribute a sense of legitimacy to my writing ability. What seems to have happened, however, is that prospective agents sniff out the fact that the stories in question were “Harry Potter rip-offs” and reject my success– and my new novel– entirely out of hand.
Frankly, based on the nearly-uniform wretchedness of most fan-fiction, I don’t blame them. And yet I am in the perplexing position of having experienced a frankly cosmic worldwide response to my writings and NOT being able to use that as a selling-point for my ongoing work.
Thus, if there was some way to classify a certain level of derivative “cover” fiction as being separate (and truly unequal) to the common dreck of fandom, I would heartily welcome that. This wouldn’t even necessarily mean my being able to publish and sell my James Potter stories, but just to lift them into a level of potential respectability, based solely on their judged literary merit, the reader response, and the sheer number of worldwide readers. I frankly don’t know what such a thing would look like, but anything that would allow me to make good use of my derivative stories’ impact in order to promote my original works (rather than, apparently, diminishing them) would be very refreshing.
Jake Squid
Because, according to Cecil Adams, the music industry does have compulsory licensing (which was changed this morning)
Robert:
And that would suck, wouldn’t it? Which is why Messrs. Gaiman and Pratchett are empowered to keep that from happening, to a certain extent (says the man who saw V for Vendetta and Watchmen in the theater).
Maledict, fanworks distributed free would dilute the market even mre that thse sold for a profit. It’s very dog-in-the-manger, (theoretically) preventing the riginal creator from making money off of it without doing so yourslf. Thugh in practice, as Kyra points out, fanworks often enhance the market value of the real thing. But again, allowing it to happen would allow fanwork lookalikes actually created by hacks hired by (rival) publishers.
Right.
Look, there are some competent fanfic authors out there, but most fanfic authors are not. And when you get people who are professional authors who do write fanfic (which I don’t anymore, but I know one or two who do), they’re not putting the same level of care into fanfic that they do into the fiction that goes out into the publishing world with their name on it, for pay.
Harry Potter didn’t suffer dillution from fanfic, because 99% of the fanfic is crap AND because it has no publicity engine. If the financial disincentive was removed, and Patricia McKillip (to draw a name more or less at random) could make a contract with a major publishing house to publish a book in the Harry Potter universe… and so could Justine Larbelestier, and Scott Westerfield, and John Scalzi, and Sarah Prineas, and Ken Scholes, and so on… it’s suddenly a very, very, very different story. Now, instead of 1,000,000 mostly bad labors of love posted on the ‘net (and 3 brilliant ones without any publicity driving to them, and 300 low-publishable quality ones, etc), you’ve got in addition dozens of corporately funded, major publishing house works by authors who are just as competent as J. K. Rowling (probably more competent than Rowling — what Rowling has going for her is the originality we’re proposing to steal — without that, she can’t really rival other authors in terms of prose and character development, etc). These authors have no disincentive to writing those books, and many, many incentives. Proven money makers (books in harry potter universe) would appeal like crazy to publishers.
THAT is flooding the fucking market.
Copycat works flooding the market does seem to me a serious problem with Amp’s proposal (although it would probably still have made Rowling very rich if a dozen other author’s had had to pay her substantial licensing fees).
It seems to me that restricting the existing copyright term to 5 years would protect against the flooding the market problem, and that Amp’s mandatory licensing scheme (for a term of author’s life or 75 years, say) would resolve the concern of being able to earn a living for one’s lifetime from a single creative work. It wouldn’t protect authors from seeing their work distorted, but I think distorting other people’s work represents progress of the art- that is why we keep patent terms short, so that other people can alter and expand upon your work, after you have had a reasonable opportunity to make a living off of it: if you don’t want others to extend your work, you have to keep it secret.
As an aside to people who keep mentioning patents and shortened copyright terms in the same post, the life of a patent is 20 years from the date of filing. I have one patent that is getting on in years and based on the number of patents referencing it, it’s probably quite the little money maker for my former employer.
A lot of intellectual property costs TONS of money to develop. A few years back, when my last manager became my manager and we did a salary review, I told him what they were paying just for my legal bills — it was well in excess of my salary, and for 2008 it will have been perhaps as much as 3 times my salary.
That’s not really reasonable. 25 might be. But it can take a long, long, long time to write out an arc.
Mandolin, One thing you forgot to mention in your otherwise excellent comment is that the ‘original’ idea will also be diluted by tie ins. It’s cool when a fan writes a story that crosses Buffy and Harry potter (or whatever). But I shudder to think of what Matel will do when they can make an add (or 20 minute children’s cartoon) connecting transformers with harry potter just in time for the next movie. Or Dora with the Bratz like to help sex up 7 year olds.
Amp, i really like your ideas most of the time. This isn’t one of them. The more i think about it the less I like it.
While fans of established franchises might get more choices won’t this discourage the production of new mainstream ideas? Why publish some new authors new idea when we can have them make a new Dresden files book and tap into the existing fan base. If there ever would have been a Dresden Files. Maybe the best Jim Butcher could hope for would have been a staff writer on the Buffy comic that explained how Xander Saved the world and got the girl(TM)
25 seems excessive, but 10 would seem more reasonable than 5. Very few works retain a bandwagon for more than 10 years, and most authors writing series produce more than 1 volume every ten years, so derivative works would not be “what happens next”, but instead would be limited to AUs and elaborations of things not covered by the author (since even if you could write a second volume of the Harry Potter series now, under a 10 year restriction you couldn’t write an alternate 7th novel for another 6 years, and you couldn’t write a post-Voldemort novel for another 9 years), which seems more like fair competition.
This would be more of a problem for sleeper hits like the Lord of the Rings, which took ten years to become a major cultural phenomenon in the US, and so would have been immediately vulnerable to derivative works.
I think the trademark aspect of derivative works would be the trickier part to get right. How much disclaimer and unlikeness in the cover design etc should be necessary to make a derivative work clearly an unauthorized derivative? Certainly, if you read the Fellowship of the Ring and want to buy the next book, it should be unambiguous that that is the Two Towers, and not Elfstones of
ShannaraMiddle Earth.And, of course, I’d still rather have a system that leads to me getting to read The Other Wind and Tales from Earthsea, which I’m not sure the mandatory licensing scheme would (and it was 34 years between Wizard of Earthsea and The Other Wind).
Charles,
So, in other words, unless authors churned out novels in a single series at a pace you’ve dictated, they lose the rights to those works? Musicians can’t rely on their portfolio to support new works because they fall into the public domain after 10 years?
I’d like someone who wants this change to explain how it PROMOTES the creation of new art, when the very foundation needed to support new art is going to be ripped out from under their feet. All of the schemes being presented, including Amp’s original suggestion, turn artists into slaves of a system where they either produce more and more or lose their work.
Yes. This. I just can’t say it any better because it’s too direct to be clarified. Thank you FCH for making the point so very well.
FCH,
Most artists (both writers and musicians) under the current system see their work fall out of print, because the publishing companies claim the right to decide on reprinting as part of their standard contracts, and most artists are not Rowling or King or Prince, and don’t have the power to negotiate a better contract or the star power to make it worth the publisher’s time to keep the work in print. So most artists under the current system do not make a long term living off of a particular work. Under my version of Amp’s proposal, publishers would lose exclusive reprinting rights after 10 years, but authors (and publishers) would retain licensing fees for anyone who chose to republish those works, so the vast majority of writers would see a greater possibility of republishing their earlier works (as publishers would undoubtedly develop with a business model of reprinting out of print works that had fallen into mandatory licensing phase).
And author’s would also benefit from licensing fees on new derivative works based on their earlier works. If a genre of Harry Potter novels develops, and every author writing in that genre has to pay a cut to Rowling, how exactly is that going to impoverish Rowling? She would now be getting extra income from other people writing in her world. And while Rowling doesn’t need the money one way or the other, it is quite possible that authors who are not as rich as the Queen might create worlds in their earlier works that then become popular sub-genres later on.
If the licensing fee structure was reasonably strong, I can’t see in what way it would be financially harmful to the over-whelming majority of authors. It might be that it would be harmful to the most successful of authors (although they would also be the most likely to develop a large number of fee paying subsidiary works, so it seems likely they would benefit as well). Actually, the main group who would be harmed is the writers of derivative works. Currently, since it isn’t possible to write knock off Harry Potter novels in the US, the publishers have sought out numerous writers of knock offs with the serial numbers scratched out, and the authors of those works are authors in full of those novels. If Harry Potter knock-offs were permitted, then the publishers would have been seeking out knock-offs with the serial numbers left in tact, and the authors would be paid worse because they would be required to kick back to Rowling. On the other hand, I think the 10 year exclusive copyright would be sufficient to dampen most of the knock-off market and keep publishing from turning entirely into a derivative works market (maybe- I think this is actually much more of a problem than Amp recognizes- while he sees clearly how publishers exploit authors under the current system, I don’t think he has given nearly enough thought to how publishers would exploit authors under the system he proposes).
FCH raised an important point. Part of the reason that copyright laws exist as they do is the situation that existed in the early twentieth century – you had musicians dying in poverty while record companies that cranked out new copies of their work made fortunes.
Charles,
Wouldn’t simply changing the existing law so that control reverted to the author after it fell out of publication work much better? That suggestion doesn’t hurt anyone — the publishers aren’t making money, the author gets to revive their property, fans potentially get more of what they want.
What is so disturbing about your (plural) suggestions (in all their forms, revisions, etc) is that they involve taking ownership of private property and giving it to someone else, mostly so that some group of fans can get more of it without the owner having control over their own property. As I’ve written before, all of these suggestions are based on the attitude that intellectual property isn’t the same as real, physical property. Well, the work-effort that goes into creating intellectual property is very real, and respecting that work-effort is no less important.
FCH,
Ownership reverting to the original author when a work falls out of print would be a very reasonable solution. I’d certainly support that, although I’d want to make authorship more inalienable as well (so that ownership reverts to the actual creator when a work falls out of print, work for hire would only apply so long as the work is being used by the purchaser).
I find the idea that intellectual property is just like physical property fairly nonsensical. They are obviously very different. Ownership of intellectual property didn’t even exist as a legal concept until the 18th century, while ownership of a physical property has existed pretty much from the beginning of the concept of law. Physical objects are each singular, while intellectual objects are trivially infinitely reproducible (while their instantiation as a physical object may be either trivial or extremely difficult). Very few people suggest that physical ownership should be a temporary state, while the Constitution of the US requires that intellectual property ownership be a temporary state. The list goes on and on. There are a few similarities, but there are far more differences. The value of protecting intellectual property rights of creators, and the form that that protection should take, is something that is better argued directly than it is argued by declaring that intellectual property is just like physical property. It isn’t.
There are fair arguments for protecting intellectual property (specifically copyright in this discussion), and I don’t think Amp’s proposal successfully rebuts or satisfies many of those arguments (bandwagon on popular works, corporate sponsored derivatives drowning out the original work, strong desire of some authors to not see any derivative works), no one favors applying the same rules to copyright that are applied to car ownership.
Charles,
“Intellectual property”, in it’s present form, isn’t nearly as old as what you’d like people to believe. Much of what is protected by intellectual property laws just plain didn’t exist, either before movable type, color lithography, sound and motion picture recordings, etc.
As each form of art has become more reproducible, “ownership” has become more of an issue. Prior to readily affordable paper reproduction, for example, copying a work required either a manual process (scribes and copyists), or was prohibitively expensive. It’s only now that one can go to an on-line website and publish a printed work that suddenly everyone can be an author and people are demanding that the original creator fork over their work. And yet the original work-effort hasn’t decreased. I’d still have to give up several years of work-effort to produce “my novel”, and believe me — I’ve given it more than a few thoughts. But if it were something that I ceased to own in the time scales suggested, I’d abandon the concept.
Private ownership of intellectual property, contrary to what you seem to believe, is essential for the development of more, as well as the innovative force it applies to societies. In the domain of patent law, a significant amount of effort is put into innovations that circumvent existing patents — when I taught “Inventing” at IBM, we’d do so-called “Prior Art” searches on concepts and then look at alternative ways of achieving the desired result. If one invents a superior product in this manner, the market is opened up to competition — something that wouldn’t have happened in the first place if there were no monopoly to work against.
Even in the Arts “ownership” has greatly stimulated innovation. Jazz, Blues, and by extension, Rock and Roll, have their origins as the result of fixed tunings and performance styles for existing works that came to dominate 19th century Western music. As composers demanded that their works be performed in the same tuning as composed (and as nobles and the church stopped being the primary benefactors of composers), alternatives arose. When composers or their benefactors demanded that existing works be played “unaltered”, alternative music forms sprung into being.
Far from being a hindrance, the Monopoly is often one of the most innovative forces going. The automobile was once subject to monopolies on form and function and during the easiest years of its existence, substantial innovations came into being. Patents on such things as steering gear led to a variety of different techniques being employed, leading to the modern steering wheel. The innovation forced by the patent leads to a competition in the marketplace.
The argument that “intellectual property can be reproduced infinitely”, followed by some set of conclusions about it’s private ownership, is most recently attributed to Richard Stallman of the Free Software Foundation. It’s notable that many intellectual property creators intentionally avoid any copyright (“copyleft”) scheme along those lines, and intentionally avoid producing intellectual property, whether arts or patents, that might someone be swept into it (the so-called “Viral Effect”). Even that dispute causes innovation as businesses struggle to differentiate from “free” products and the “free” products try improving market share for the glory (or whatever) of the people doing the work. When it comes down to it, I choose professionally created, privately owned, products because my experience is that they are of better quality, have greater stability, and are going to be around for much longer. Doesn’t mean I don’t use something like “GIMP” for the few instances where I might use “Photoshop” instead, just means that I can’t justify the expense of Photoshop, the same as I use TurboCad because I can’t afford AutoCAD, both of which are copyright-protected products.
To wrap this up, private property, as John Locke wrote on extensively, is the foundation of Liberty. Marxist theory, which attempts to get around the problems associated with excessive concentrations of material property in the hands of the ruling class, focuses on labor as a form of property. Marx argues that the value of labor does not belong to the factory owner, but to the worker. Certainly the factory owner deserves a fair return, much as does the publisher for printed works, but the worker is the source of the greatly increased value, much as the author is responsible for the increased value of paper and ink.
Whatever the scheme, whether capitalist or marxist, the right to the value of ones property is well established in modern political thought. The only issue in both schemes is who benefits — the owner of the machinery, or the producer of the labor. In no scheme is the consumer the presumed owner of the property, and all of the copyright schemes suggested here place too much emphasis on the consumer’s interests. Likewise, none of the schemes provide the incentives for innovation that are provided by limited monopolies.
Well said, but I don’t think it summarizes down to rejecting “intellectual property isn’t the same as real, physical property.”
“intellectual property isn’t the same as real, physical property.”
Isn’t the same in what way? I agree that intellectual property is more reproducible than physical property; there will only ever be one block of Madison Ave. between 55th and 54th streets, but there are millions of copies of various books, songs, images, etc. But in the sense that the owner of a piece of intellectual property ought to have at least as much right to control it as owners of physical property do? Why not?
I’m OK with making the estate tax on intellectual property closer to 100% (though by that I mean putting it in the public domain upon the owner’s death, not putting it in the government’s hands) than it is on physical property. But yeah, let the owners of the property generally get to decide whether they want to sell or rent it out, except when there’s some kind of eminent domain type of justification for forcing them to sell it at a government-set price. If you’d be outraged by the government’s forcing me to host a Sarah Palin fundraiser at my house, and be unappeased by the justification that I got paid a fee for it (or even got a percentage cut of what was raised), why should I be forced to allow Sarah Palin to use my creative work so long as she pays me for it?
Charles,
I’d really like to see a well formed, cogent argument from you as to why you think that “Intellectual Property” shouldn’t be afforded the same kinds of protections as “Physical Property”.
As I said, the PURPOSE of the protections — the limited monopolies — on intellectual property is the creation of more of that kind of intellectual property. Not why it would benefit consumers, but why it would benefit the fields being protected. Just because something is free or cheap, don’t mean it’s good and doesn’t mean it’s stimulating innovation. So in your argument, I’d like you to explain why your suggestion isn’t going to result in less intellectual property. I want you to convince me that the liberalization of intellectual property ownership isn’t going to harm the various art forms and scientific fields that are supported by the existing copyright and patent laws.
I’m a successful inventor, with 10 US patents issued and somewhere around 30 pending. And what I can tell you is that for me, the existing patent system insures that either I’ll be rewarded for my creativity and ingenuity, or else my employer will be. And that reward will provide the financial basis — not just incentive, but the actual $$$’s it takes to pay salaries for myself and IP lawyers — to continue doing that. Likewise, I’ve participated in the creation of large software systems, including operating systems, that are protected by copyright law. And without the limited monopoly created by the copyright system, those projects would never have been undertaken.
And before you point to GNU/Linux as a counter-example, keep in mind that GNU/Linux is still a minority operating system, except in the server world, where UNIX ruled for years, in all its forms of UNIX. Mac/OS (a for-fee operating system) is gaining share faster than Linux (a free operating system).
PG and FCH,
So do you both believe that the author of a song should be allowed to control whether a recording of it is used at a Sarah Palin rally? Obviously my physical property could not be required to be used for a Sarah Palin rally, but if you believe that my songs should only be played at a Sarah Palin rally with my permission, then you favor a major change in the law to make the treatment of intellectual property much more restrictive. Or do you think that my house should have become public domain 25 years after its creation (as a patent would be) or some number of years after the death of the architect (or the builder, or the original purchaser if the builder and architect were doing work for hire for the original purchaser). If so, then you favor a massive decrease in tangible property rights. So if physical property rights and intellectual property rights should be treated the same, then the current system is obviously a massive failure.
If you wish to claim merely that physical property and intellectual property enjoy the same kind of protection, in the sense that they allow the creator of the property to benefit from their creation, and that intellectual property should continue to enjoy that same kind of protection, that same kind of protection is afforded under Amp’s system and my modification of it. It may be that Amp’s system or my own is a bad system, as the early 20th century system of 28 year copyrights was a bad system, but neither the old copyright system nor Amp’s system represents a rejection of the idea of intellectual property. The creators of intellectual property would still be able to profit substantially from their creations, just as musicians are able to profit from the radio broadcasts of their music (an existing system of mandatory licensing of intellectual property that I presume both of you believe is legitimate form of the same kind of protection that is afforded to physical property).
And casting the limited terms of intellectual property as merely the equivalent of taxation strikes me as disingenuous for several reasons. First, taxation passes physical and financial property from one owner (a private citizen) to another (the government), it does not cause the the property to become a common property. The estate of the deceased writes a check to the government, it doesn’t put cash out on the lawn for anyone to take (even that would be passing property from one private owner to another). Physical property produced by humans almost never becomes common property, because it is fundamentally limited in number. An object can only be used by a limited number of people at one , and objects get used up or destroyed. Ownership of physical objects is a system for managing who holds the object and who controls how it gets used up or protected from destruction. Secondly, admitting that you favor a 100% estate tax for a particular form of property (and not even an estate tax, patents are ended after only 25 years, often much less than the life of the inventor), raises the question of what is it about this form of property that makes you think that it, unlike houses and food, should be seized after a limited time period. What is it, that is, that is fundamentally different about intellectual property?
PG,
You ask why shouldn’t owners of intellectual property have at least as much right to control their property as owners of physical property. The reason is simple. Physical property without the protection of an owner falls irreparably into decay. Intellectual property without the protection of an owner increases many-fold. Buildings from the 1600’s that have had no owners for hundreds of years are ruins or gone entirely. Texts (not the physical text, but the intellectual text) that have had no intellectual owners are still around (in fact, every written work from the 1600’s that exists has no intellectual owner, and never has). The plays of Shakespeare are like water or air, truly common property, but the only fundamental difference that they have from the plays of Arthur Miller that causes them to be like water is that they were written before the date that would make them private property. Certainly, there are many pieces of intellectual property from the 17th century that are lost, but the current practice of copyright puts more works at risk of being lost (all the orphaned works, which are not public domain, but have no known owner to authorize their republication).
I do not think (nor, clearly, does Amp) that all intellectual property should be like water and air, inherently common property. Both of us have been arguing for a system of protection of intellectual property. You may think that our proposals are a bad way of handling intellectual property (and maybe they are), but our proposals are less different from the status quo than the status quo for intellectual property is from the status quo for physical property. You yourself favor a system for handling intellectual property that you would never favor for physical property. FCH is happy with a system that protects her patents for 25 years, but none of us would be happy with a system that restricted the maximum length of time a house could be owned to 25 years (and then not passed to a new owner, but made common property for all).
If you want an answer to your question: “But in the sense that the owner of a piece of intellectual property ought to have at least as much right to control it as owners of physical property do? Why not?” Look to why you don’t believe that patents should never expire or why you believe that copyrights should expire on the death of the creator, and you will find an answer to your question that is likely to make sense to you.
Charles,
I asked you to explain why you think your schemes, however so constructed, will result in more and better intellectual property, since that’s the unambiguously stated objective of the enabling language in the US Constitution. The Constitution doesn’t apply the 5th Amendment to works of art, it has separate enabling language with a specific purpose.
So, how do you propose that removing or limiting financial incentives to produce works of art and advances in the Sciences is going to be promoted? Here’s the Copyright and Patent Clause, as a reminder —