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The Boston Globe has yet another story about fanfic. It's pretty insulting, in my opinion. To add injury to insult, they don't quote me, though they do quote ![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
heidi8 and Meredith McCardle, whose article about the legality of fanfic is here (scroll down; the article is in .pdf format). McCardle's article is written for either a legal or a fan audience. She says many things I agree with and some that I don't; she's clearly less comfortable with trademark law than copyright, and makes the trademark issues too complicated. (The short of it: there's not a trademark problem with fan fiction. Really.)
I have over twenty books stacked up that I ought to review and stories I ought to finish, but the Supreme Court really screwed me in my professional life by refusing to decide Nike v. Kasky, which I was planning to write about, and I need to figure out what to do about that. I already knew they were going to strike down sodomy laws, so the announcement didn't make me feel all that good. In fact, this Term was a real drag; my mom lost her prison visitation case 9-zip, and the end-of-Term cases make the Court look more moderate than it really is, which can only help Bush because people will think that the Court will keep the Republicans from going too far to the right.
At least Derek Lowe continues to make me happy: "They're advocating a mixture of aspirin, a statin, folic acid, an ACE inhibitor, a diuretic, and a beta-blocker. The idea is to go after cardiovascular disease with pretty much all the known therapeutic options at once. This is a touchingly linear approach to drug therapy. It's actually kind of sweet." A man who can think that an approach to drug therapy is cute is my kind of commentator.
heidi8 and Meredith McCardle, whose article about the legality of fanfic is here (scroll down; the article is in .pdf format). McCardle's article is written for either a legal or a fan audience. She says many things I agree with and some that I don't; she's clearly less comfortable with trademark law than copyright, and makes the trademark issues too complicated. (The short of it: there's not a trademark problem with fan fiction. Really.)I have over twenty books stacked up that I ought to review and stories I ought to finish, but the Supreme Court really screwed me in my professional life by refusing to decide Nike v. Kasky, which I was planning to write about, and I need to figure out what to do about that. I already knew they were going to strike down sodomy laws, so the announcement didn't make me feel all that good. In fact, this Term was a real drag; my mom lost her prison visitation case 9-zip, and the end-of-Term cases make the Court look more moderate than it really is, which can only help Bush because people will think that the Court will keep the Republicans from going too far to the right.
At least Derek Lowe continues to make me happy: "They're advocating a mixture of aspirin, a statin, folic acid, an ACE inhibitor, a diuretic, and a beta-blocker. The idea is to go after cardiovascular disease with pretty much all the known therapeutic options at once. This is a touchingly linear approach to drug therapy. It's actually kind of sweet." A man who can think that an approach to drug therapy is cute is my kind of commentator.
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Sorry about the lack of nike. I'd have loved to be a fly on the wall for that discussion...
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Scratch the surface of a few slash sites online, and it doesn't take long to find tales of bestiality, rape, sexual torture, and Weasley twins sodomizing each other."
Because we all know that rough and raw writing about sex is incompatible with deep thought. You can think or you can fuck, but heaven forfend that writing about fucking be thoughtful. Of course the reporting is going to focus on the outliers, the way it always does, and I'm not active in HP fandom so I can't speak about Mira's writing directly, but I didn't like the author's tone. Or "Ulysses this isn't." Which is of course true, but then HP ain't no Odyssey. The underlying attitude, that JK Rowling is a true authorial source whose words are being stolen out of her mouth as she speaks (or sings, given the karaoke analogy) while fan authors are just poachers, is hard to swallow given Rowlings' debts to others.
But this sort of thing always happens in popular reporting on weird excesses, so I'm actually not that exercised unless I make myself be.
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Given that this is a journalist, she knew exactly what she was doing and knew that she was taking sides. I'd hope that this appeared in an editoral section (I couldn't tell) because otherwise it's a pretty major example of bias.
Dee
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I think that articles that focus on het or gen, or fan fiction in general, tend more towards the positive side. The slash articles always seem to take a "what is this bizarre creature?" approach (hold at arm's length and stare openly ;), even if they're trying to be neutral.
Dee
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Question: I know with most fan fiction that trademarks are not an issue, but what about comic-based fan fiction? Per exemple: DC Comics has trademarked "The Man of Steel," in reference to Superman. Now, while I sincerely doubt* they would go after people for using it, wouldn't including that particular phrase to describe (market) a DC-based fan fiction story be trademark violation?
*Because as far as I know, they didn't sue the everliving daylights out of Larry Niven for his professionally published "Man of Steel, Woman of Kleenex" essay, and that would be a much better target than a fan writer.
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If you marketed, as in sold for money, a zine using "Man of Steel," you might have a trademark infringement problem (not, as I just said, a dilution problem), but the resolution would depend on whether the zine's contents were copyright infringement. In general, titles can't be TM infringement unless they have no artistic relevance to the underlying content. If the zine were fair use, you'd have the right to describe the contents (though a court might theoretically split the baby by requiring you to use another name, because courts can do almost anything they want).
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There really haven't been a helluva lot of cases on unauthorized derivative works, and there's no copyright law AU Exemption, and the classification of all derivative works as parodies really isn't very sound intellectually.
Then again, I'm not really sure what the damages would be.
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The copyright questions are distinct; I believe the fair use claim is proper in most cases of fan fiction. Although it's often said that parodies are protected as fair uses, that's not quite correct (sadly, my former boss didn't do anyone any favors in his explanation in the Pretty Woman case) -- what's likely to be a fair use is a transformative use, of which parodies are sometimes examples. Fan fiction is transformative, mostly. For my now somewhat outdated take on the subject, which doesn't cover the controversy over The Wind Done Gone, you can check out my website (http://www.tushnet.com), under writings.
Damages are rarely at issue in cases like this; it's the threat of lawsuit in the first place that works the magic.
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1. On the trademark side, I wonder if it could be argued that fanfic/fanart *are* commercial because of their effect in impairing the market for, e.g., authorized spinoff novels?
2. On the copyright side, I don't think that all transformative uses are fair for either legal or moral purposes--of course US law has only a very limited recognition of droit morale, but perhaps there should be some recognition of the creator's belief that "my characters wouldn't do that!" or even "I get to write about my characters, you don't--get your own characters" or the copyright proprietor's belief that the property will be less valuable if its characters are widely thought of as "doing that."
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2. It's always risky business to go to court in a fair use case, and judges are definitely influenced by concepts of moral right even when they have no formal place in US law. That said, the fair use test is pretty much anti-moral rights on this point: the less likely the copyright owner is to like what you've done, the more likely it is you've made a transformative fair use, as the Mitchell estate found out when it tried to stop Alice Randall from associating Gone with the Wind with homosexuality and miscegnation in The Wind Done Gone. My position is that moral rights are terrible ideas applied to anything other than limited-edition art, and I'm not so sure about limited editions. It comes down to what you think the law protects and ought to protect; I have some distant sympathy for an outraged JK Rowling who feels violated when her characters are perverted, but I don't think that outweighs the value to society of other people being able to play with those characters, at least noncommercially. If you (devil's advocate you) believe in moral rights, we're going to have a hard time talking because we don't share enough common premises, as is often the case when American and Continental ideas collide.
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1. I think we have to look at the trademarked character as an independent object of commercial value--almost as if the character were a person who could be "libeled"--certainly one that has a reputation that, perhaps, is harmed by the hijinks we assign to the character. Now, whether any more or any fewer Harry Potter lunchboxes will be purchased because of the number of Harry/Snape stories, I can't quantify...
2. On the copyright side, I don't think that all transformative uses are fair for either legal or moral purposes--of course US law has only a very limited recognition of droit morale, but perhaps there should be some recognition of the creator's belief that "my characters wouldn't do that!" or even "I get to write about my characters, you don't--get your own characters" or the copyright proprietor's belief that the property will be less valuable if its characters are widely thought of as "doing that."
3. I wonder whether the initial reasons for enacting a fair use exception were a) political (one should be able to comment on issues of interest to the community) and b) academic/scholarly, and fan usage generally falls outside these.
4. I assign a much higher relative value than you do to the "control of derivative works" within the "bundle of rights" of the owner of intellectual property!
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4. I assign a fairly high value to control of high-capital-investment derivative works. Movie rights are a great idea; other merchandising rights, like stuffed animals and souvenir cups, seem to me reasonable in today's economy. The right to control derivative works just because they're derivative, though, seems to me likely to conflict with others' expression in unfortunate ways and not add greatly to copyright owners' incentives; I would confine the derivative works right pretty tightly to those big-ticket items.
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We really, really need a true 21st century set of intellectual property standards that respond to the needs of other than Disney!The tangled web of print/video/Web etc. rights has to be disentangled, and the interests of the creators of works, the owners of copyrights and trademarks, and those of noncommercial users have to be balanced. IMO, political debate was the essential reason for the Constitution's copyright clause, commercial development fitted in later and awkwardly.
Hmmm, maybe what I'm driving at is that characters are "artificial persons" in ways that corporations are not, and have rights of privacy/rights of publicity although of course those would be controlled by a creator or corporate rights owner. And I do think more European intellectual property concepts should be grafted into US law--not just droit morale but library lending royalties!
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The author clearly finds the subject distasteful and disturbing. I respectfully submit that she should please bite my ass.