Fanfic

[avevale_intelligencer]

Very interesting post by grrm here, responding to the Diana Gabaldon thing that's blown up recently.

I write fanfic, as you all know. I'm in the middle of one now. I started serious writing that way, as I think many did who are now writing their own original stuff. I think it can be a useful step on the path. It's unlikely I'll stop doing it any time soon. As regards my own original creations, such as they are, my attitude has always been that I would be insanely flattered if anyone thought them worthy of imitation.

This post does give me pause, though.

Realism time: fanfic is going to happen. I did it before I knew what it was, when I was still at school (don't ask) and I'm not unique. If it were to be driven underground in some monstrous Orwellian clampdown on amateur writing, people would still do it, on loo paper in their own blood, or something. As things are, it can be shared and enjoyed, writers can learn from constructive criticism, and grow a layer of skin to cope with the less than constructive kind, and anything that increases the general level of (a) enjoyment and (b) creativity in the universe is good in my book.

The authors (grrm and Gabaldon) say that "the central—the only truly vital part—of a story, and what makes it unique, is the character or characters." I don't agree. You could single out any element of a story and say that made it unique, and someone would come up with a reason why it didn't. What makes a story unique is the story. The whole thing. My characters aren't unique. Neither (I dare to suggest) are anyone else's. They're all people, and there's only so much you can do with people to make them unique without making them weird. A new story, that throws new light on those characters, is a different creation.

The characters are like the instruments in your band, and the plot is the harmonic structure, and the dialogue and narrative are the melody, and the story is the piece of music itself. You can invent your own instruments, like the composer Harry Partch, and devise your own tuning system to play your music on them. Unique, certainly, but I haven't heard of anyone else using them for their compositions, which means that now he's dead that uniqueness is gone from the world as if it had never been.

I take the point that someone can, if they will, do something with my characters that I would not like; make the Nyronds into rapists and torturers, for instance. I can be reasonably aggrieved at this, and I would hope that anyone who wanted to use my characters would respect their nature enough not to pervert it that way. (I have no objection to Nyrond slash, by the way, though I can't imagine it myself.) But I don't know if I would feel comfortable saying "no one can write anything about my characters but me" purely on the basis that there might be a few who would do things I don't like. That would be like closing the park because one person littered.

I also take the legal and economic point, but as long as the writing biz is structured the way it is, I don't see how to help that. As I said, fanfic will happen as long as the connection between people's brains and their writing hands is unmonitored. You can make it illegal (some would say it is) and it'll still happen. The question is, how much oppression do you want to impose to protect your characters? ERB vigorously pursued any attempt to use his creations, and he died rich: HPL threw his universe open to anyone who wanted to play in it, and he died poor. I think there may have been other reasons in both cases, to be fair; but even so, and much as I'd love to be rich, I'd take HPL's route every single time. That's just me.

So, I end like a Discovery programme, with no clear conclusion and no minds changed on either side. I believe that writers who do not want their creations used in fanfic should have their wishes respected, and not be argued with in their blog or anywhere else; they're the writer, they have the say, and if you do it anyway and bring legal action on yourself that's your own stupid fault. But I would hate it if that became the general attitude, or if repeated outrages led to some legal restriction on the creativity of fans.

Oh, and a vaguely relevant snippet from the world of Uru: Cyan are still making slow and stately progress towards making parts of it open source, as they have said they would, in their spare time and as and when they can. In the meantime, another game, Ryzom, has gone open source just recently, and the makers included a snarky comment about Uru in their FAQ. (Way to show class, guys.) And so the hackers on the Uru forums (who have been reverse engineering an earlier version of Uru in which a major publisher may still have rights) are getting all up in people's faces about how Cyan has "broken their promise." No, really. Someone else did something completely different with an entirely different game, first, and so Cyan is guilty and has to be made to pay. I love the smell of fannish entitlement in the morning. It smells like...well, rancid underpants to be honest.

That's all for now.

Comments

[keristor.livejournal.com]

I believe that writers who do not want their creations used in fanfic should have their wishes respected, and not be argued with in their blog or anywhere else; they're the writer, they have the say, and if you do it anyway and bring legal action on yourself that's your own stupid fault. But I would hate it if that became the general attitude, or if repeated outrages led to some legal restriction on the creativity of fans.

My position entirely. I've only actually taken part in one author's fanfic (Pern), and don't read much in any other (in my limited experience unless there is an editor with pretty strict control Sturgeon's Law applies at least to the third power), but as far as I'm concerned it's up to the author or other owner. The same, incidentally, with filk and other derivative works.

Having said that, if it is done for your own amusement and possibly shared with a few friends (and that means a few, not several thousand LJ or Facebook 'friends') I see no harm in it. I suspect that every imaginative person does it at least in thought, even if they never write it down, with any universe and characters they like and find inspiring. Until they install the thought readers in every home and street that's not a problem.

[sodzilla.livejournal.com]

So how do you feel about, say, performing filk at conventions?

If posting fanfic on LJ is wrong, surely so is performing filk songs in a place where more people than "a few friends" can hear you, and where, with today's recording technology, you can never be sure nobody's going to make a mp3 of your performance and put it on the 'net?

[keristor.livejournal.com]

Well, for a start, a lot (quite possibly most) filk is original in both words and tunes, and much of the rest is parody (admittedly not as protected in the UK as it is in the US, but still a recognised form of comment). Also, I didn't say that it was 'wrong', I said that /if/ it is done for only yourself and a few friends then it doesn't cause much harm, I didn't say that it does necessarily cause harm if more than "a few" hear or see it (but if someone from the PRS came to a filkcon they might decide to sue some people, that's always a risk, but I don't know of anyone who has actually been sued for filking).

In my own case, I don't care, just I don't care if they arrest me for the 'crime' of singing with more than one other person in a place without a licence. I'll get the chance to say in public how silly such rules are. That's an individual decision, whether someone wants to risk it in any case is up to them.

In the case of fanfic, however, publishers and lawyers have been known to take legal action against it. And writers have been harmed by it (I don't know of any songwriter who has been harmed by filks, because they are after the song has been written and published, often many years after).

As far as respecting the author's wishes is concerned, that's politeness. Again, you can do anything you want in private, but doing it where the author can find out is not polite and is not sensible if they might get angry. Note however that most songwriters don't mind about filking when they actually know about it, it's usually the money people (publishers, record companies, agents and lawyers) who object.

[sodzilla.livejournal.com]

*le sigh*

Seriously... the time when fanfic could be suppressed is, I think, long gone. At the very least, creators who wanted to do so now would have to police all aspects of fannish activity, which would in itself be a huge expenditure (and also not make people all that inclined to be their fans).

What's needed here is an overhaul of the copyright laws, to make them more... sensible. After all, if I give my friend X permission to borrow my bike, that does not imply permission for neighbor Y to take my bike and sell it for scrap; so why should giving fans permission to play with one's creations for fun imply permission to others to do it for profit?

Likewise, as you say, one single character or plot twist does not a story make. If I get a comment on one of my stories saying "I wonder if character X will make it to the end?" and I was indeed planning to kill off X... I still have to write the scene, I still have to work out how all the other characters will react, and what the dynamics between them will be like now that X is gone, and who's going to take over her "job" in the story, if indeed it needs taking over. It should not be possible for a creator to (as in the much-cited M Z Bradley example) have to scrap all or part of a work because a fan-writer had the idea first.

[(Anonymous)]

The core problem here, I believe, is the fact that 'copyright has to be defended'. I believe (though IANAL let alone a copyright lawyer) that this more true under American copyright law than the rest of the world and may be related to the fact that America really, really didn't like having to give up the right to rip off authors from the rest of the world. (This was back in the 19th Century, not recently.)

Now as a legal standard 'defend your copyright or lose it' is not really practical in the twenty-first century. When you had to at least have a printing press and an office to be a publisher and distribute your works to the world then a conscientious author could probably keep track of every attempt to rip their intellectual property off. But now any idiot with a computer and ISP account can distribute their creations to the world and in fact many of us do.

The copryright laws really need to be revised for the new era but if this happens it will probably be in the way least friendly to individual artists and most friendly to corporations.

Michael Cule

[eagle]

(Here by way of smallship1's comment on the original post.)

I'm afraid that you, like grrm, have confused copyright and trademark. Copyright does not have to be defended. That's a special property of trademarks.

Now, if someone can prove that you knew perfectly well something was happening that violated your rights or property, had an opportunity to interfere, and chose clearly and in a way that was made obvious to the person doing those things not to interfere, you can through that activity grant a sort of implicit permission. That's called estoppel. But that's true of any law; it's not particular to intellectual property law. And I think in this case it's something of a red herring. The burden of proof is much higher than for loss of a trademark, and estoppel is per-situation (in other words, you not stopping one fanfic writer won't help another fanfic writer, as I understand estoppel).

I don't do fiction, but I do free software, which is very, very deeply involved with the same issues. This stuff comes up all the time.

[(Anonymous)]

Which version of law are you qualified in? US or British?

Because I believe that there are variations between the two.

I may be wrong though. Often am. See my miscounting the number of episodes in the current season of DR WHO on another thread.

Michael Cule

[eagle]

I'm from the US, but on this particular topic, I'm fairly sure there's no significant difference between US and UK law, or even, for that matter, French or German law (although in some European jurisdictions there are some additional complications around inalienable moral rights). The free software world is very international and these discussions are usually had in an international context.

Trademark law varies from country to country a lot more than copyright does, since copyright law is basically set by the Berne Convention, which pretty much everyone in North America and Europe (and much of the rest of the world as well) has ratified.

[pbristow.livejournal.com]

As I understand it, just like most "Euro-laws", the Berne Convention allows for various (standardised) options (thus making it easier to get "buy-in" from nations whose existing laws were significantly different from the proposed standard), and one such option is the "defend it or lose it" positition on copyright, which the US opted to retain as part of their national copyright law (unless that's changed recently?).

IANAL, however. =:o}

[keristor.livejournal.com]

No, and not at all recently, see Brad Templeton's copyright myths which he first published on Usenet in 1994. It may have been the position before the Berne Convention was adopted but not for at least 16 years.

The trademark differences are (as I understand them) largely that UK trademark law bars a lot more common words and phrases from being registered as trademarks that US law. IIRC there is also a difference that one of them is a lot more particular about font and colour (presentation in general) being the same to show infringement than the other, and about the context being significant.

Unfortunately a number of writers have also blurred things by trademarking the names of their characters and places and then sueing about infringement of those, but using the term 'copyright' as a cover-all for the infringements.

[eagle]

I'm 99% certain that's not the case, although if you have a reference, I'd be interested to look at it. But I'm a US citizen and heavily involved in US copyright law and I've never heard of such a thing before.

[dickgloucester.livejournal.com]

You always put things so well. *hugs*