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25

Apr 2005

Hot Button Topics with Mystery Writers

Posted by / in Books / 196 comments

In my chats with mystery writers this weekend at the Los Angeles Times Festival of Books, a few "hot button" topics came up…mainly because I was tackling them on my blog and they wanted to thank me for bringing them into the open. I asked them why, if they share my views, they don’t say so publicly. The answer across the board was the same: fear. They’re afraid of getting lots of angry emails, losing sales, and awkward encounters with fans at signings and conventions.

Anyway, here are some of the hot-button topics that emerged in our conversations:

1) Self-Published Authors: There seems to be a strong consensus among published mystery writers that the MWA has gone astray and that  serious efforts should be made to restrict membership to published authors only. "We’re Turning into the ‘Mystery People of America,’" lamented one novelist. Another said "Being a member of the MWA used to mean something…now it doesn’t." Still another feared the MWA was becoming a clone of Sisters in Crime, which she said "should be called ‘PublishAmerica in Crime.’" Many of the authors were hesitant about publicly expressing their view that MWA should become a strictly professional organization because , as one said, "I don’t want to deal with all of the controversy it’s going to create. I don’t want people hating me." But that same person would gladly, and quickly, vote yes for such reforms.

I agree with the view that the MWA should restrict its membership to published authors and produced screenwriters only. That said, I think the view of Sisters in Crime that one author expressed is unfair and way, way too harsh. I think SiC is a fine organization that does a great job, offering tremendous support to aspiring writers and hosting interesting seminars and conferences (as well as producing  an informative newsletter that, in many ways, is better than the MWA’s). The success of SiC, in my mind, is evidence that there’s really no need for  no need for MWA to expand to include self-published and aspiring authors among their ranks.

2) The LA Times Book Review: Most agreed it’s a snooze that doesn’t do a very good job covering crime fiction in a city that’s so associated culturally with the genre in both literature and film.  When I brought up Eugen Weber, the most frequent response was "who is that?" Which tells you all you need to know about how relevant his views are in the field.

3)  Fanfiction:   It creeps out most of the authors I spoke to (a few, it should be noted, have no problem with it and knew of several novelists who got their start writing fanfiction). They’re all struck by the double standard — it’s okay for fanfic writers to steal your work, but if they see something similar to one of their stories in your book they’ll threaten to sue (or write very nasty letters). They said if the fans truly respected the author and his work, they should ask for permission before disseminating fanfiction (it’s not the writing that bothered them, it was the "publishing" of it on the Internet). The authors I spoke to said they don’t complain about fanfic or publicly forbid it because they are terrified of the blacklash, of getting deluged with hate mail. Instead, they close their eyes and pretend it doesn’t exist.

4) The Increasing Influence of Blogs:  The authors I spoke to
believe that attention from the crime-fiction-oriented blogs has become
a more significant factor in sales and buzz than mainstream reviews.
They say that publications like Mystery Scene, Publishers Weekly and Ellery Queen, or a review from Marilyn
Stasio, don’t seem to carry the same impact as the heat and attention a half-dozen
popular blogs can generate (almost all the authors I talked to read Sarah Weinman’s blog on a daily basis). They also say that the bloggers tend to be "more
well read, and more hip, than some of the entrenched critics whose
attitudes about the genre seemed fixed in 1972 and can’t embrace the
evolution of the form." The authors I spoke to shared the opinion that
bloggers are steeped in the genre, read more small-press and paperback
originals than the mainstream critics,  review books within days of
their release, and are faster to spot and new trends. 

5) Related to #4, the Cultification of Authors:  Call this the
flipside of crime fiction blogging. Many of the folks I talked to told
me they were stunned by the negative backlash when I mentioned that, as
much as I like and admire Ken Bruen, I wasn’t as wowed by THE GUARDS as
some folks were.  So many authors I spoke to said the downside of crime
fiction blogging, and the growing influence of those bloggers, is that
once they discover an author, they deify him or her. Loyalty to the
author and his work becomes a litmus test of crime fiction hipness
among the bloggers and their readers. And because most of the bloggers
are fans, hanging out with the chosen authors at conventions and
signings  is also a status-thing.  Authors and fans are afraid to even
lightly criticize a novel by a writer who has been "discovered" or
championed by the bloggers  for fear of being ostracized from the
in-group. What stunned me was that these views  about the downside of
blogging were expressed by several authors who are on among the current
darlings of the blogging community. The fact that these authors are so
well-aware (and self-aware) of the downside surprised me. I figured
they’d be so absorbed in all the adulation they wouldn’t see any
pitfalls.

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196 comments
  • Michael Bracken

    April 25, 2005, pm30 2:35 PM
    01

    I’ve been an active member of MWA since 1983. I’m also an active member of HWA, PWA, and SFWA. All of these organizations are dealing with the impact that new technology has on publishing and are trying to define what it means to be published.
    I actively voiced my disagreement with the last bylaw amendment to change MWA membership requirements, not because I disagreed with a need for change but because of how the proposal was written. Other members opposed it for a variety of other reasons, and we were obviously outnumbered by members who favored the proposal.
    On the other hand, some of the suggestions I made when I voiced my disagreement with the bylaw amendment were later incorporated into the new membership requirements, which demonstrates the organization’s willingness to listen to dissenting opinions.
    (Still, I find it ironic that an organization whose motto is “crime doesn’t pay…enough” now requires a minimum level of income from mystery writing to qualify for active membership.)
    What concerns me most about attempts to change membership requirements in any professional writing organization is that the discussions often devolve into “us” vs. “them.” “Us” are usually writers who have met with a fair bit of success and have high name recognition. “Them” are usually beginning writers or amateurs who don’t yet–and may never–understand publishing.
    Unfortunately, what happens is that a great many writers stuck between “us” and “them” get overlooked in the discussions. The discussions frequently center on either a) novels and novelists or b) money.
    Any discussion about membership requirements for MWA must include a sincere and realisitic examination of short fiction publishing, otherwise a name change to Mystery Novelists of America (MNA) might be in order. (I made active membership in HWA, MWA, PWA, and SFWA based on short story sales and continue to earn more from short fiction than from novels, so I have an obvious bias toward short fiction.)
    There must also be an effort to make clear distinctions between legitimate small presses and self-publishing operations. Unfortunately, this is difficult to do. For quite some time–and still in the minds of some–any book printed using print-on-demand technology was automatically presumed to be less than legitimate. The growing number of legitimate publishers using PoD technology is changing that perception.
    A similar situation applies to on-line and electronic publishers. The low cost of becoming an electronic publisher means every Joe, Frank, and Reynolds can be a publisher without any knowledge of publishing. The few legitimate and legitimately “professional” electronic markets are difficult to separate from the non-professional.
    Although MWA has thankfully not dealt with the rate-of-pay issue in the same way that HWA and SFWA have, an author who receives a miniscule advance is no less professional than the author whose advances typically match the GNP of Guam. And the short story writer who receives 3-cents/word is no less professional than the writer who receives 5-cents/word or 50-cents/word.
    You note that “there’s really no need for MWA to expand to include self-published and aspiring authors among their ranks.” MWA already has–and has had for some time now–affiliate memberships specifically for aspiring authors. From the MWA web site: “Affiliate members are writers of crime/mystery/suspense fiction who are not yet professionally published, and others with an interest in the genre, including unpaid reviewers.” (Affiliates don’t have voting privileges, so they can’t control the direction of the organization. )
    MWA currently has the highest annual dues of the four professional writing organizations to which I belong, without offering significantly more for the money. Perhaps if we had a few more affiliates carry some of the organization’s financial weight, we might be able to lower dues or increase member benefits.
    And if we treat aspiring mystery writers as professionals-in-training, teaching them the things they need to know to become successfully published, perhaps they will become the future lifeblood of the MWA. If we turn our backs on them, how long will it be before the MWA is nothing but geriatric used-to-bes paying outrageous dues?
    Thanks for pressing one of my hot buttons, Lee.

  • Jocelyn

    April 25, 2005, pm30 3:12 PM
    02

    I rather agree with Mr. Bracken on the evolution of membership requirements into an “us vs. them” issue. While I can (fanfiction writer and advocate that I am) understand the reasons why Mystery Writers of America would want to keep membership to published/produced writers only, there is another side to it:
    For one thing, WHO is MWA there for? Do they “serve” (a loose term, but I couldn’t think of a better one) published/produced writers only, or all mystery writers, including those not yet published? (For the sake of argument, I’ll leave fanwriters out of it.)
    If MWA would like to be a resource/organization that involves writers of both published/produced works but also works-in-progress, perhaps they could create a “Junior Membership” of sorts for the latter group? This could serve as a very valuable thing for aspiring mystery writers and those in the process of writing/trying to publish/switching genres. Who knows…the already-published crowd might learn a few things from the newbies and the experiences they bring with their “first-time” forays into the publishing world. It changes every day, after all.
    Just a thought.
    (And just because I can’t keep my mouth shut, I might venture to suggest that those published authors who are “creeped out” by fanfiction either don’t know what it really is and haven’t looked, or have only seen the “freaky fringe”. And furthermore, I would venture to remind both them and the esteemed Mr. Goldberg that about half a percent of the millions of fanwriters in the world have EVER attempted/threatened to sue an original author over alleged “theft of the fanwriter’s idea.” There are crazies/creeps in every crowd–don’t lump the majority with them.)

  • Mark A. York

    April 25, 2005, pm30 4:23 PM
    03

    Fanfiction won’t get you in the club.
    “The growing number of legitimate publishers using PoD technology is changing that perception.”
    Who are these? Those that base their operations around POD exclusively are vanity presses. By definition of the legitimate use of the technology it means no book placement in physical stores, thus low to no sales.

  • Michael Bracken

    April 25, 2005, pm30 4:58 PM
    04

    Mark, I could do a Google search and come up with a list of legitimate publishers using PoD technology to print books–I’ve done it before and the list included quite a few university presses and some small mystery presses–but that wouldn’t address your comments directly.
    You postulate that “[t]hose [publishers who] base their operations around PoD exclusively are vanity presses.” A publisher need not use PoD to be a vanity press, and a publisher need not be a vanity press to use PoD technology. What determines whether a press is a vanity press or not is the business model the press uses, not the technology they use to print books, and it all boils down to the answer to a single question: do they charge writers?
    “By definition of the legitimate use of the technology it means no book placement in physical stores, thus low to no sales.” Clearly PoD is cost-prohibitive for the production of any kind of mass-market book. However PoD seems to be ideal for books which have a small target audience or books which have a small, but on-going demand. (University presses, like Oxford University Press and Harvard University Press, are using PoD to keep low-volume backlist titles available.)

  • Mark

    April 25, 2005, pm30 5:08 PM
    05

    I was talking to an author whose first two books are officially out of print. He asked for the rights back from his publisher, but they immediately made print on demand editions of them so they could claim they were still in print and refuse to give them back. And this is a Dell, a major publisher you’ll find in every bookstore.

  • Jocelyn

    April 25, 2005, pm30 5:42 PM
    06

    //”Fanfiction won’t get you in the club.”//
    I never said it would, nor would I try to get into any regular publishing group with it. I was merely pointing out some misconceptions that the Published community has about fanfiction. My point in that post was agreement with Michael that MWA can preserve its purpose as an organization for Mystery *WRITERS* and still have certain affiliate/lesser memberships for as-yet-unpublished mystery writers.

  • Keith

    April 25, 2005, pm30 6:33 PM
    07

    I agree with the writers mentioned, who mind not the writing, but the distribution of fanfic.
    “misconceptions that the Published community has about fanfiction”
    One of the drawbacks of the Internet is that no matter how screwed up your worldview, you can find six dozen other wack jobs to reassure you, on a regular basis, that you’re all the innocent victims of an unjustified witch hunt.
    I suspect I speak for more than a few of us who actually do the work to create our own characters and situations, at a level of quality sufficient to be published legitimately, when I say Get your own fucking stories, you self-entitled creeps.
    As for fearing backlash from these thieves, integrity’s always got a price. If it didn’t, more people would practice it.

  • Mark A. York

    April 25, 2005, pm30 6:44 PM
    08

    What Keith said on the last issue. As for Mr. Bracken, I’ve heard that line before and it stretches the use of the word “uses.” I said “as the basis of their operation.” The latter examples clearly don’t use it in this capacity. Business model indeed. PA doesn’t charge their authors literally. They use the same line as you just did.

  • Mark A. York

    April 25, 2005, pm30 6:45 PM
    09

    Same with Mark’s addition. Two copies from Dell do not make Dell a POD-based publisher.

  • Mark A. York

    April 25, 2005, pm30 6:49 PM
    10

    I don’t qaulify for membership, but if I did I wouldn’t want a caste system for it. It sounds to me like the real mystery writers know exactly what fanfiction is, and I agree with it. There are no misconceptions on their part as far as I can tell.

  • Jocelyn

    April 25, 2005, pm30 6:52 PM
    11

    (Sigh) Alas, we were having such a good-natured, level-headed discussion, Keith.
    And all I can say in reply is that the NICE thing about the Internet is that when six dozen individuals are insisting that you are a whackjob, you can find six MILLION (or more) like-minded individuals who help reassure you that you are in fact a large portion of the population who simply holds a different viewpoint. (Don’t believe me? Check out fanfiction.net, fictionalley.org, or any of the other major fanfiction archives on the Internet and see how many fanwriters there are.)
    Boys, boys, let’s leave the profanity out of it, shall we?
    And yes, what Lee refers to about fanwriters suing original authors is a misconception—those lawsuits/threats of lawsuits are very few and far between, and the vast majority of fanwriters despise those who attempt them as a disgrace to the fan community. (And no, it’s no disgrace to be a member of a fan community.)
    If it is not theft to review a book, discuss a book, criticize it, or parody it on the Internet (and it’s not), then as a matter of policy, it should not be considered theft to fanwrite. I’ve made the argument time and time again–the original author LOSES nothing in any of those cases. How can it be theft if nothing is taken? Hell, a well-worded bit of media criticism will do an author’s profits more harm than fanfic!
    And one more thing, Keith: yes, I do write original fiction. And if I’m so fortunate as to be popular enough once they’re published to inspire fanfic, I look forward to many hours of amusement reading the good stuff and mocking the bad. I think of it as “not taking oneself too seriously.” I may own the profits from my books, but not the ideas themselves. Nor am I so arrogant as to try to.

  • David J. Montgomery

    April 25, 2005, pm30 6:57 PM
    12

    Not all POD publishers are vanity presses, although many of them are. Point Blank Press is one very notable exception to that.
    http://www.pointblankpress.com

  • Keith

    April 25, 2005, pm30 7:20 PM
    13

    Okay, here’s one without profanity.
    I’ve made the argument time and time again–the original author LOSES nothing in any of those cases. How can it be theft if nothing is taken?
    What’s lost is the ability of the owner of intellectual property to decide how it’s used. Without that ability, intellectual property is without value; it ceases to be property.
    That was a clear answer. Something is lost, and I just told you what it is in unambiguous, concrete terms. Are you going to stop making this ridiculous claim that nothing is lost?
    I suspected not.
    If something is not yours, and you do not have permission to use it, don’t use it.
    Is there something complicated about that?
    Now, as for your wish to see fanfic derived from your own original work, it’s your right to decide to allow this exploitation. I have no problem with it. More power to you. That’s called granting permission.
    It’s also my right to deny permission. I have this legal right. The characters are mine; I created them, and I own them. You may not create anything that includes them and distribute it. I do not grant permission.
    If you do it anyway at that point, you’re a copyright violater and twelve kinds of creep.
    I may own the profits from my books, but not the ideas themselves.
    This is a meaningless sentence. Sounds nice, lets you feel smart, means abso-flippin’-nothing.
    Characters are not “ideas.” Situations are not “ideas.” Plots are not “ideas.” When you appropriate any of these things, you are not taking “ideas.” You are using copyrighted material without licensing it. You are confused; and–how unusual for humans–confused in a way that happens to benefit you.
    Check out fanfiction.net, fictionalley.org, or any of the other major fanfiction archives on the Internet and see how many fanwriters there are.
    Check out any of a thousand adult chat rooms and see how many pedophiles and adulterers there are.
    I guess if enough people do it, it’s ethical.

  • Jocelyn

    April 25, 2005, pm30 7:41 PM
    14

    What’s lost is the ability of the owner of intellectual property to decide how it’s used. Without that ability, intellectual property is without value; it ceases to be property.
    Actually, I’m afraid the courts have held different. The owner of intellectual property has the right to control the COMMERCIAL uses of their work–to an extent. Copyright ownership is not absolute. Otherwise, you could theoretically prevent book reviewers from criticising your work.
    Copyright ownership doesn’t allow you to prevent fans from discussing your material, book reviewers from critiquing it, and it’s VERY up in the air of whether it would prevent fanwriters from borrowing and playing with it for fun (and noncommercially, of course.)
    EXAMPLE: a very commonly-cited Copyright case is Baker v. Seldon, which held that owning copyright in a book about a style accounting does not extend to owning copyright in all OTHER books that USE that style of accounting. Even if your IDEA was that process, you can’t prevent others from using it.
    Section 202 of the Copyright Act holds that “ideas, plans, methods” are not subject to copyright. My Copyright professor and I had more than one conversation about how fanfiction figures into all this, and she said (and many of the source materials from the class support her) that it’s a murky legal issue at best.
    (I’d go into Trademark law as well, but I haven’t taken that course yet.)
    So there you go: my basis for the claim that you (the original author) lose nothing is that in no way does fanfiction affect your control over your own work. You can write sequels, sell the movie rights, collaborate, sell derivative work rights, the whole shebang, whether fanfiction exists or not. Fanfiction is a HOBBY, shared by many people, like playing fantasy football or collecting memorabilia on this or that celebrity. If anything, it is free advertising for the original author just like any other “word of mouth” fan discussion of their work.
    Your intellectual property rights don’t extend to letting fans set up message boards to discuss the latest episode of your TV show or the latest book you’ve released (so long as they’re not doing it for a profit). It doesn’t extend to letting them speculate on the all-important “what comes next.”
    THAT is the claim I’m making–perhaps the courts will one day find against it, but I don’t think it’s ridiculous.
    And, Keith, if there were as many pedophiles out there as there are fanwriters, we’d be in serious trouble. If you’re accusing ME of making ridiculous claims, kindly don’t exaggerate your own beyond all possible sense. At worst, fanfiction is an irritation/affront/outrage to your authorly sensitivities. There are far worse things going on out there on the Internet, and I’d appreciate it if you didn’t group us among them. I wasn’t objecting to the profanity itself as much as your apparent inability to have a civil intellectual discussion.

  • Guyot

    April 25, 2005, pm30 7:41 PM
    15

    //I may own the profits from my books, but not the ideas themselves. Nor am I so arrogant as to try to.//
    I’m confused here. Are you saying that a writer does/should not own the ideas from/of their books?
    Surely, I’m missing something here. Because it sounds like you’re talking about intellectual property which most definitely is owned. And it sounds like you’re saying an idea or cast of characters from a book or series of books should be considered property of the writer.
    But I’m sure you’re not saying this. I’m just an idiot. Can you clear this up for me? Thank you.

  • Keith

    April 25, 2005, pm30 7:51 PM
    16

    ideas, plans, methods” are not subject to copyright.
    A character is not an idea, a plan, or a method, so the case law you cited is not relevant.
    There are far worse things going on out there on the Internet, and I’d appreciate it if you didn’t group us among them.
    Unfortunately, it doesn’t really matter to me with whom you prefer not to be grouped. She who lives by the ethics-by-way-of-numbers claim dies by the pedophile parallel.
    I wasn’t objecting to the profanity itself as much as your apparent inability to have a civil intellectual discussion.
    I’m happy to, provided there’s an intellectual discussion. This isn’t one.

  • Guyot

    April 25, 2005, pm30 7:54 PM
    17

    Oh. I just read your latest post to Keith, and I guess that is what you’re saying.
    My bad.
    Here’s a simple observation: it sounds like your argument *for* fanfic is all based on the fact that the law hasn’t quite figured out what to do with it, and since they haven’t then it’s all good.
    And you say you’re a writer of original work, too, but I find that odd when you speak so strongly about what published writers should and shouldn’t feel re: their own work. But then again you keep citing the courts as opposed to what a person feels if something that is theirs – a result of their sweat and their effort – is taken by someone else.
    But what if they decide to pass laws favoring Keith’s pov? Would you then say fanfic is bad? Or would say that the courts are wrong?

  • Mark A. York

    April 25, 2005, pm30 8:02 PM
    18

    An affected law student. That’s what I suspected. Well I’m a law student too it seems, and publication on the internet is publication insofar as say, an original novel published that way is published. Not to mention thrown away economically speaking. No money involved there either. So, Ms. Law stident when you do that with borrowed copyright protected characters, that’s infringement bait even if the caselaw hasn’t caught up yet. It will. And should.

  • Guyot

    April 25, 2005, pm30 8:13 PM
    19

    MARK:
    Don’t you remember being that age – when you were soaking up all this new information and it made you feel so much like a grown up, and you couldn’t wait to sound like a grown up, so you threw out all your new info every chance you got? And the more you spewed the more you felt like you really did know everything there was to know about how the world works…
    God, do I wish I still felt that way.
    🙂

  • Mark A. York

    April 25, 2005, pm30 8:27 PM
    20

    Yeah, but I just graduated from college at 51 so it’s fresh in my mind. So in essence I have the best of both worlds: the information and the wisdom from age to interpret it correctly. Still, it doesn’t always work out though.

  • Andi

    April 25, 2005, pm30 8:32 PM
    21

    Given that fan fiction has existed for, ok I don’t know, but I have know OF its existence for 40 years. I don’t get why it’s become a critical issue. Has it? Is there a lot of it in mystery? I’ve never seen it. Ever, and gee, I thought I got around.
    I have never heard any author complain that this stuff is stealing food from his table, or is not respecting intellectual property. And as someone who a) lives with an artist and b) used to work for an IP lawyer, I respect the creative process. Maybe it’s that when I learned of fanfic, it was Trek stuff and I have never EVER heard that Roddenberry or anyone connected with him minded it. I don’t recall anyone making money from it either. Probably it was accepted because it was respectful, showed a love of the show/genre and I never heard of anyone saying “I’d rather read fanfic than a book by someone connected with the show, or an “authorized” book. And I’ve been in sf fandom for close to 30 years. It’s meant as homage and it’s enthusiastic; asking permission? That I know of, no one ever has approached Gene R or his heirs or Joe Stracynski with Babylon 5 and “asked” permission to write fanfic. I also know fans who came out of fanfic to become serious, legit writers. Whhooo, boy. if someone is going to take a fanfic writer to court because she wrote a Buffy story? I’d be appalled, and stunned that it’s come to this. Do people really think it hurts them? Takes money away? Doesn’t show respect?
    I’m just as put off by people who take over series “with permission” from the heirs – seems creepy to me to read a book written as if….
    As for POD – well, most self-pubbed books i’ve read suck rocks. Some don’t however. Overall, there’s a lot of “legit” books out there that I consider dreck as well but there is a higher content of it with self-pubbed stuff. So Far. (says the woman who is about to BUY an iUniverse book because she thought it wonderful and thinks it should have been done by a “real” publisher.)
    As for MWA, I once was an associate member, or whatever it was called. And I’m not a mystery writer, and I wasn’t a con-runner. I was a friend of writers and a fan and a reader and I went to meetings hwere we had FUN and heard interesting speakers. I don’t belong now, haven’t for decades because it’s too pricy and I don’t fit criteria. It’s not useful for me as a non-writer, alhtough I am a reviewer, publicist, conrunner, blogger and knowledgable fan, there seems to place for the likes of me in the world of “professional associations”. true too of SinC; I no longer see a place for me as a non-writer and non-would-be/wannabe/pre-published (and i hate that particular neologism) writer.

  • Anonymous

    April 25, 2005, pm30 8:43 PM
    22

    Wow. I’m impressed by the fanfiction side of the argument here. Strong reasoning for junior high students – that’s when people outgrow fan fiction, right?
    Now, I will confess to writing some Nancy Drew mysteries as a kid, and a Starsky and Hutch story or two (no slash!), but the only people who read them were my group of close girlfriends.
    But… one does grow up and write one’s own stories. Or, if playing in someone else’s world, must repurpose it enough that it becomes a social commentary (and protected satire). WIDE SARGASSO SEA would be an example.
    The real question is, if you want to write, why not push yourself? Why not stand out on your own and say this is how I see the world? It’s kind of like the difference between collage art and scrapbooking.

  • Keith

    April 25, 2005, pm30 8:56 PM
    23

    In the case of Star Trek and Buffy, permission may not have been asked for–but I think it’s been effectively granted. It seems to me the people behind those shows know it’s part of the fan culture, and those fans are their income base. Discouraging it would alienate the consumer.
    One of the sites mentioned above includes 104 Stephanie Plum stories (badly written, if the few I skimmed are typical). For all I know, maybe Janet Evanovich loves bad stories about her creations and has blessed the website–but if she didn’t, and she doesn’t share the Buffy executive producers’ view of this stuff, where’s the gray area?
    The fundamental question is who gets to make the decision, not what the decision is. Intellectual property consists entire of the ability to deny usage.
    Do people really think it hurts them? Takes money away? Doesn’t show respect?
    Maybe. Doubt it. Sometimes.
    I don’t want my characters appearing in fanfic. Even if someone thinks I’m wrongheaded for that, it’s my wrongheaded decision to make. Not theirs.
    That’s all for me tonight. I haven’t made my word count yet.

  • Rachel Heslin

    April 26, 2005, am30 12:11 AM
    24

    Y’know, for me, the issue of fanfic isn’t a legal or financial one, nor even one of “ownership.” It’s an issue of personal violation.
    When I write, I live my characters. I know them. They are part of me. They have to be, in order for them to be believable and/or for a reader to care what happens to them.
    If someone else came along and took some of my characters and started changing who they were or what they did — and even if the fanster were talented enough to capture something close to the actual flavor of the character — it would feel as though something very precious and personal had been taken from me and tainted.
    Not everyone writes or feels this way.
    I do, and I would therefore like to have the right to protect myself and my created worlds from appearing in fanfic.

  • kete

    April 26, 2005, am30 2:56 AM
    25

    Dear Keith, FIRST you have to be so popular as to have a fan community that feels inspired to write fanfic for your work. But, no one seems to know you! So, I guess, your stand against fanfic is totally irrelevant and on the same level as unpublished writers announcing their agreement with fanfiction of their work should they ever publish something.
    kete

  • kete

    April 26, 2005, am30 2:57 AM
    26

    Dear members of MWA, the major percentage of you HAS no fandoms. What you have is enough buyers to ensure your next book gets published. Many of your books are just commodities casually purchased at the supermarket between milk and eggs and thrown away after reading. Having enough buyers to get published and actually having a living breathing internet fandom are two totally separate things. I hate to disappoint you, but you really, really have to be popular enough first to have fans group together on the net and form actual fandoms, with archives, mailing-lists, chat rooms and, yes, writers. So, for 95% of you feeling creeped out by fanfiction it will never be a problem you have to consider. Why worry about it, my dears?
    kete

  • Jocelyn

    April 26, 2005, am30 4:55 AM
    27

    Wow, I went to bed just as this was really getting interesting!
    Guyot: But then again you keep citing the courts as opposed to what a person feels if something that is theirs – a result of their sweat and their effort – is taken by someone else.
    But what if they decide to pass laws favoring Keith’s pov? Would you then say fanfic is bad? Or would say that the courts are wrong?

    1) My argument is that fanfiction is not a “taking” because the original author neither loses profits nor control over their material. I consider fanfiction to be a natural part of the regular discussion (or “buzz”, if you will) that fans engage in over a popular story/show/whatnot. An original author’s intellectual property rights don’t extend to preventing fans from talking about their work online, or critiquing it, or even speculating/wishing/imagining about “what comes next.” I don’t think it’s that much of a stretch to argue that they also don’t prevent fans from putting those speculations/imaginations into stories and sharing/discussing them online either.
    2) I’m not saying that just because the courts haven’t been clear on where non-profit fanfiction falls in the intellectual property spectrum makes it okay. Just that some aspects of copyright law lean more closely in my favor than in Keith’s–therefore there is plenty of argument to be made on both sides of this issue and I wanted the belittling to stop.
    3) If they did pass laws, I still would not believe fanfiction is wrong (see # 1) but I would obey the law–while making every effort to lobby for its being overturned.
    Mark: Lots of time spent on the Internet is thrown away economically speaking. I’m not arguing that posting something on the Internet isn’t publishing: merely that releasing a piece not for commercial reasons like fanfiction renders it in a different category for copyright purposes.
    Keith:
    1) I am hardly “she who lives by the ethics of the numbers.” I was responding to your original post in which you referred to “six dozen whackjobs” by pointing out that the fanfiction community is extremely large and diverse, and there’s no need to be patronizing. I don’t think we’re right because we’re large, I think there is plenty of law/policy to back up our position.
    2) Just because you don’t like an opposing argument doesn’t make a discussion non-intellectual. I’ve been respectful of your point of view even though I strongly disagree with it–for someone who claims to have so much moral high ground here, you certainly are neglecting common courtesy.
    Anonymous: (Headshake) Try exercising your own advice about “growing up” and learn that you can’t win an argument by insulting/patronising/belittling the other side.
    Plenty of hobbies out there are considered “wastes of time” in the most practical sense of the word. Plenty cross age groups and generations.
    Many, even most fanwriters do write original material, like myself. But we keep going with the fanfic because we enjoy it, because we get inspiration from the story we’re fans of as well as inspiration for our own original material, and see no good reason to give up a harmless hobby that we enjoy.
    Rachel Heslin: If someone else came along and took some of my characters and started changing who they were or what they did — and even if the fanster were talented enough to capture something close to the actual flavor of the character — it would feel as though something very precious and personal had been taken from me and tainted.
    I’ll be the first to admit that this, to me as a fanwriter, is the hardest objection of all to face.
    What I’d say in argument is that fanwriters aren’t actually “changing” who your characters are or what they do. YOU and only you, as the original author, have the power to do that. Fanfiction is not the real thing; it’s speculation, wishful thinking, or silly flights of fancy about “what if.” YOU have lost no power to determine your characters’ destiny, and your readers will never stop looking to YOU above any other for those stories. Therefore if stories by anyone other than yourself really bother you, my recommendation would be, just ignore it. If you don’t choose to acknowledge them or read them, they can’t taint your enjoyment of your own work.
    BUT…if you have real strong feelings about the use of your stories/characters, I realize that’s not much of a consolation. However, the law and rights (at least here in the US) operate to give as much freedom as possible to individuals so long as those freedoms don’t interfere with the rights/freedoms of others. That’s the crux of my argument for the legality of fanfiction: there is no legally recognizable harm to the original author.
    I acknowledge (even if I don’t really understand) your distress at seeing other people write about your characters. But fanfiction doesn’t prevent you in any way from continuing to write your work, publish it, and exercise your rights as the owner to make a profit off it, and only those rights (at least from my point-of-view) are the ones that can be LEGALLY protected.
    kete: What I’ve been saying to the others about keeping this a civilized, adult discussion holds true for our side as well. Let’s keep a civil tongue in our heads (and on our keyboards) shall we?

  • PK the Bookeemonster

    April 26, 2005, am30 7:01 AM
    28

    This has generated quite a bit of discussion. I wanted to touch briefly on Lee’s original post about the impact of bloggers and the deification of authors. Lee, what you wrote is very true. Blogging is having a huge impact in the business world as well as world of books – I’m about to finish an MBA with an emphasis in e-business a part of which studies the emerging power of blogs. I enjoy making the rounds of the bloggers I follow and keeping in touch with topics that I care about that I don’t normally get to do in the “real world.” Sarah’s blog is useful to me in her collection of mystery world news that if I took the time I could do myself but I don’t. My husband isn’t a reader and doesn’t “get” my love of books so having a medium that allows me to interact with others who share my interests is fantastic. But if blogs went away, I would continue to enjoy books without the “insider knowledge.” And that is a part of it, the insiders versus the outsiders, and as you stated, there is another dark side to blogging which is the power the more popular ones have similar to the cliques in high school all over again: if you’re not in, you’re out. Ken Bruen is an excellent example. I’ve tried his books and they don’t click with me; that’s just me and my taste but they’re equally valid as those who do like his stuff. There is a strong undercurrent in the mystery world promoting the “coolness” of noir, dark novels which is great but it shouldn’t come at the expense of any other subgenre. The phenomenon of blogging is bringing mystery lovers together but also separating us into niches of us and them.

  • Graham

    April 26, 2005, am30 7:18 AM
    29

    So, Jocelyn, by your logic, if you came by my house at night and drove off in my car, but made sure that it was back by morning (and topped off the gas, oil, etc.) I would have no reason to complain, because I haven’t “lost” anything. My car or my story – it’s my property, and I should decide how it’s used.
    From your earlier posts, I can see that you’re not really misunderstanding the issue – you just believe that fanficcers have the right to write original stories using other author’s characters. I am not a lawyer, but I would say you’re wrong.
    As for reviews, criticism, parodies, etc., these all fall under “fair use”, and come with some limitations.
    Fanfic in general seems to spring from the writer’s strong identification with a fictional world, and a desire to insert himself into it – either explicitly, as a character, or as the author/god, making the characters do as he wants (in some varieties, like slash and hurt/comfort, the writer’s personal needs are pretty much clear to everyone). In other words, the fanfic impulse comes from the same place as my childhood daydreams of saving the universe with Luke and Han.
    That may be a little unkind, but I think it’s true.

  • David J. Montgomery

    April 26, 2005, am30 7:51 AM
    30

    The essential point to understand about fanficcers is that they believe they should/do have the right to write fanfic, regardless of what the creators and rights holders think.
    They don’t care about the possible legality or illegality of it, they don’t believe there are any ethical questions involved, they don’t care if the writers who actually did the heavy lifting of thinking up the characters and worlds in the first place object.
    This shows a profound lack of respect for writers and their creations…but they don’t care about that either.
    I’m sure Lee didn’t intend to have this topic hijacked with yet another discussion of fanfic, though, so perhaps we could return to the original subject.
    To whit…Bloggers are assholes. Thoughts?

  • Keith

    April 26, 2005, am30 7:52 AM
    31

    Wow, I love it when all I have to do is go to sleep, and the other side shoots themselves.
    Saves money on ammo.

  • Jocelyn

    April 26, 2005, am30 7:58 AM
    32

    Graham: Read previous comments; I wouldn’t call anything you’ve said unkind. 🙂
    But no, to borrow a vehicle without permission isn’t the same thing as fanfic. For one thing, even one use of a vehicle takes away mileage, etc. That’s the difference between intellectual property and real property: while I am using your car, you CANNOT use it.
    But while I were using your story, characters, setting, etc for my own imaginings, you can still do the exact same thing.
    None of your RIGHTS and ABILITIES to create/profit from/expand on your intellectual property are lost by another person’s idle daydreams.
    Actually, your assessment of “where fanfic comes from” (indulging one’s impulse to save the world with Luke and Han) is quite correct in many cases: for me, that’s how it started when I was a kid. As I grew up, it evolved quite a bit, but “strong identification” with a fictional world is where it still comes from. That fictional world inspires (for me, at least) speculation, wishful thinking, which evolve in my mind into a story. For me, at least (as I’ve told others, the fanfic community is enormous, so I can’t speak for all of them) the darn thing won’t get out of my head until I write it down.
    I was fanwriting long before I discovered the Internet, but only when I got the chance to share my silly flights of fancy did I start to REALLY grow as a writer. I went from “saving the world along with Luke and Han” to writing stories about “how Luke and Han saved the world AFTER Return of the Jedi” or “etc (this is just an example, of course, I’m aware of the novels, but that is a very similar thought process.)
    I’m still a little rough on that part of Copyright Law (shameful, I know, given my interest in it) but I would try to make a claim for the legality of fanfiction as fair use.

  • Jocelyn

    April 26, 2005, am30 8:10 AM
    33

    David J. Montgomery: Bloggers are assholes. Thoughts?
    (Chuckle) I think many of my fellow thespians were saying that when I decided to blog the entire Mikado Show Week and ran around writing down everything they said. But they sure did love it when it was done!
    Although you’re right about this topic being hijacked–sorry ’bout that! If Lee asks us to kill the thread, I shall abide (although I do think we’re finally starting to have a fairly intelligent conversation on the subject, now that the name-calling and patronizing and profanity seems to have stopped.)
    They don’t care about the possible legality or illegality of it, they don’t believe there are any ethical questions involved, they don’t care if the writers who actually did the heavy lifting of thinking up the characters and worlds in the first place object.
    Actually yes, most fanwriters (again, can’t generalize a community this large–some of them, I freely admit, are nuts, as in all fan communities) DO recognize there are ethical questions involved. If JK Rowling developed a serious moral objection to fanfic itself…I’d have some serious thinking to do. Fortunately, all fandoms I write in have express permission from the owners (Tolkien, Rowling, Marvel Comics) or at worst, ignore us (Disney).
    This shows a profound lack of respect for writers and their creations…but they don’t care about that either.
    Again, BIG generalization. We (most of us, the normal ones) DO care and respect both the writers and their creations. As we would if writing a term paper about it or anything else, we cite the authors’ ownership (I’ve seen cases of bona fide plagiarism of a published author in fanfiction where credit wasn’t given, and that fanwriter was flamed right off the web. Good riddance too), and we do what we do because (see my response to Graham) we LOVE what the orignal author created, to the point where we identify with it enough to write a story or two of our own.
    Keith: We did? I must have missed it. (Goes back and re-reads comments.)

  • James C. Hess

    April 26, 2005, am30 8:26 AM
    34

    Bloggers are assholes.
    Gee, thanks for the vote of confidence.

  • Graham

    April 26, 2005, am30 8:37 AM
    35

    What I was really getting at was that the “fiction” portion of fanfiction is overwhelmed by the “fan” portion. People who write fanfic are motivated less by a desire to create than by a desire to be a part of whatever fictional world they’re into.
    Essentially I see it as a form of wish-fulfillment, the same desire to belong that leads people to go out in public dressed as Klingons (You Might Be A Geek If: You’ve ever been admitted free to a sci-fi convention based on how you’re dressed).
    If I’m right (always a big ‘if’), then there’s not any way to keep fanficcers from doing what they do. It means too much to them.

  • Mark A. York

    April 26, 2005, am30 8:45 AM
    36

    “My argument is that fanfiction is not a “taking” because the original author neither loses profits nor control over their material.”
    And everyone else here is say that’s BS. Get a life. You justify this obcession with other peoples’ property by lumping it in with even commentary about the taken material. It isn’t anything of the sort.

  • David J. Montgomery

    April 26, 2005, am30 9:06 AM
    37

    Jocelyn writes:
    “We (most of us, the normal ones) DO care and respect both the writers and their creations.”
    If that’s the case, then why don’t fanfic writers get permission before they do it? (Yes, I’m excepting your “fandoms” as you say you have permission.)
    Are you trying to argue that “most” fanfic writers have permission? If not, then they don’t respect the authors and their creations.

  • Jocelyn

    April 26, 2005, am30 9:07 AM
    38

    Graham: (Giggle) Well, I admit to wearing silly T-shirts to conventions, but I’ve NEVER worn any plastic appendages, I swear!
    But seriously, you are somewhat right. For many fanwriters, it is a desire to be a part of a world they identify with. For others, they are just natural storytellers who live to spin yarns, whether it’s original fiction or fanfic or both, and when they’re inspired for something original or by something in another story, they can’t breathe until they share it.
    I think for most of us, it’s a combination of the two. And you’re right: it does mean that much to us. I won’t stop my novels OR my fanstories. Both are too much a part of me to leave undone.
    Mark: How is it that I’m definitely in the minority here and yet managing to be calm, rational, and civil, whereas you are in the majority and can’t manage to respond without being rude?
    No, everyone here does not agree it’s BS. Two or three disagree with my point, and if you have anything civil/sane to say about it, I’ll gladly listen.

  • Keith

    April 26, 2005, am30 9:42 AM
    39

    Violating the rights and wishes of people who do what you can’t isn’t rude… but profanity is?
    That’s an example of what I mean by “shooting yourself.” Your arguments aren’t really the “sane debate” you wish they were. They’re more like an addict’s rationalization–lots of little logical tricks, moored to nothing.
    At least be honest. You know it’s wrong, but you don’t care.
    And Kete:
    I know Jocelyn told you to pipe down, but please. Do keep talking.

  • Jocelyn

    April 26, 2005, am30 10:48 AM
    40

    Very well, Keith, if you want me to respond in kind by patronising you, I’ll be happy to do so!
    Are you completely oblivious to common sense? No, my arguments are not “logical tricks.” Logic, my lad, is not a trick. And my arguments are moored to plenty of law, not to mention common sense, and individual rights.
    I grant, your position is also moored to other aspects of law and individual rights. But instead of emphasizing THOSE things, you choose to be rude, which suggests that you don’t even know what YOU are talking about, much less what I am talking about.

  • Guyot

    April 26, 2005, am30 10:57 AM
    41

    Where is Rodney King when we need him?

  • Jocelyn

    April 26, 2005, am30 11:01 AM
    42

    Guyot said: Where is Rodney King when we need him?
    Call me dense, but HUH?! I’m well-aware of who Rodney King is and how the case went, but…huh?
    Still, I think you just broke the tension. 😉

  • Keith

    April 26, 2005, am30 11:06 AM
    43

    Logic is, indeed, a trick, in the hands of anyone who uses it as a drunk uses a lamppost.
    P=>Q; Q=R; therefore R=>S is nothing but a trick unless P and Q are defined rigorously and the implications are supported by principles with reflections in reality. Even then, there’s still truth to deal with–a logical proof can be entirely valid and its conclusion entirely untrue, because logic is merely a process. But yours don’t even achieve validity, because you don’t know how to be rigorous; you keep swerving off into appeals to emotion and attempts at flattering self-portraiture.
    Logic’s just a way of manipulating data. Your data’s no good, and you’re not even rigorous with the manipulation. So not only do your ethics suck, but your logic’s faulty and self-serving.
    I wonder what vocation you could find where that doesn’t matter.

  • David J. Montgomery

    April 26, 2005, am30 11:16 AM
    44

    “Can’t we all just get along?” –Rodney King

  • Jocelyn

    April 26, 2005, am30 11:20 AM
    45

    Well, Keith, considering I don’t know how a drunk uses a lamppost, I’m sorry to say you’ve lost me there. I still fail to understand where exactly you have found FAULT in my logic.
    Okay, let me try the equation trick. Hadn’t thought of that.
    A and B are people. X=real property (car, house, whatever). IP=a piece of intellectual property (book, screenplay, whatever).
    B cannot use X while A is using X. (And vice versa.)
    If A owns X, and B uses X without permission, that is stealing, because B has deprived A of the use of X (even for a short length of time.) B can talk about X, B can look at X, but if B uses X while it belongs to A, B is stealing X.
    With me so far?
    But B can use IP while A owns it. Copyright law says that B cannot use IP to make money if A owns IP. Because the right to make money off IP belongs to A alone. B can talk about IP, B can look/read/watch IP, AND I submit that B can use IP so long as B doesn’t make any money off it.
    A is never DEPRIVED of IP when B uses it. When A owns IP, A can do whatever A wants with IP even when B is playing around with it…but only A has the right to make money off it.
    I’m not trying to trick you, Keith. For me it makes sense. If you can show me where it doesn’t make sense, rather than just flinging insults around, I’ll be happy to pay attention.

  • Jocelyn

    April 26, 2005, am30 11:24 AM
    46

    LOL! Thanks, David!
    And if anyone is interested, I invite you over to my blog where I’ve posted some information about fanfiction and a fanwriters’ view of the world, if you will, where you are welcome to continue debating.
    http://www.livejournal.com/users/jocelyncs/61269.html
    I haven’t touched the moral issue or gone into real detail on the law, but if anyone wants to, I’m always up for a good discussion.

  • Mark A. York

    April 26, 2005, am30 11:29 AM
    47

    “AND I submit that B can use IP so long as B doesn’t make any money off it.”
    This strikes me as an add on only one among has heard of, or used.
    “For me it makes sense.”
    Well there. That settles it.

  • Jocelyn

    April 26, 2005, am30 11:33 AM
    48

    This strikes me as an add on only one among has heard of, or used.
    How so? My contention is that “fair use” doctrine permits intellectual property to be used for nonprofit purposes BECAUSE it deprives the owner of that intellectual property of nothing.
    If you read this a different way, feel free to explain.

  • Keith

    April 26, 2005, am30 11:38 AM
    49

    A drunk uses a lamppost more for support than enlightenment.
    A is never DEPRIVED of IP when B uses it.
    Again, you’re ignoring any voice but your own.
    A is DEPRIVED of the ability to decide how A’s property is used when B uses it without permission.
    Your sleight-of-hand about money is not relevant. The issue is, in its entirety, the question of who gets to control the property. The issue is not:

    • Who makes money off it
    • Whether B is depriving A of the ability to make money
    • Whether it’s “good for the writer”
    • Whether it should be included in “fair use”
    • How much you love fanfic
    • The snootiness of the published cabal
    • That it’s really an ‘homage,” and the violated should feel grateful

    It is the ability of the creator or owner to decide how her property is used that you steal. That is the theft. That is the problem. You have yet to respond coherently to that very clear, concrete statement. Instead, you blather about nobody getting hurt.
    That may be true. But when J decides that A isn’t being hurt, and uses A’s property without permission, J has stolen A’s chance to decide whether anybody’s being hurt. And since it’s J’s property, it should be J’s decision.
    I don’t think you’re trying to trick me, Jocelyn. I think you’re trying to trick yourself. The more you can bolster the apparently logical side of things, the less you have to face your lack of ethics.
    The Internet allows readers and music lovers to do on a grand scale what only publishers and record labels were once capable of:
    Screw the artist.

  • Keith

    April 26, 2005, am30 11:40 AM
    50

    Too bad these things aren’t editable:
    Since it’s A’s property, it should be A’s decision.

  • Jocelyn

    April 26, 2005, am30 11:47 AM
    51

    It is the ability of the creator or owner to decide how her property is used that you’re stealing.
    But that ability is not without limits, and fanfiction falls outside the limit: that is what I’m arguing. “Fair use” permits the distribution/reproduction/slicing and dicing of intellectual property for purposes of commentary, education, even parody, for the very reasons that I’m citing:
    a) noncommercial
    b) doesn’t prevent owner from exercising regular intellectual property rights (sale of copies and rights/creation of derivative works/etc)
    c) there’s public policy reasons (encouragement of progress/creativity/public dialogue) for letting it happen
    What I’m arguing is that it is not a stretch for fair use doctrine to include fanfiction.
    And, no, I don’t think I’m tricking myself. Somebody posted the fair use statues in another thread, I’ll see if I can find them if you want to look at them.

  • Graham

    April 26, 2005, pm30 1:18 PM
    52

    Well, it’s obvious that this won’t be settled until Chief Justice Rehnquist hands down the law, so we may as well just disagree.
    Somebody made a comment above about fanficcers using any justification for continuing their addiction, and that’s really what I was getting at in my posts: fanfic fills an emotional need, and (I would argue) a different emotional need than writing original fiction, and as long as there’s no reason to stop, people will do it.

  • Rachel Heslin

    April 26, 2005, pm30 1:27 PM
    53

    Having talked about my personal feelings, I wanted to throw out two different perspectives:
    1. When I was working for Mazda, they had a department whose sole purpose was to find auto parts stores, mechanics, etc. who were illegally using the official Mazda logo in their advertising and serve cease and desists.
    Was Mazda technically losing money because these unaffiliated businesses were using their logo? Not necessarily.
    Was Mazda unwillingly associated with these businesses because of the use of the logo? Yes, it was.
    Was Mazda therefore subject to taints of its brand beyond its control (i.e. the body shop produced crappy work, so Mazda was associated with crappy work)? Most definitely. It was therefore only good business sense to limit the use of their logo to Officially Sanctioned affiliates.
    2. I agree that, for the most part, fanfic isn’t about Writing or Being A Writer. As others have said, it’s about being part of a world that you really like. Heck, when I was in high school, I wrote short stories based on Duran Duran music videos. Therefore, all the name-calling about “wannabes” and “get yer own creativity, ya talentless clod” type statements are not only unnecessary, but irrelevant, as are the “get a life” ones. There are some people who think that making up stories at all — published or not, “legitimate” or not — is a silly waste of time.
    Ethics and legality are definitely worthy of discussion and debate, but hobbies are hobbies, and if they bring enjoyment to the person pursuing them, that pursuit in and of itself should not be subject to ridicule.
    PS. Jocelyn, I do appreciate your continuing efforts on behalf of civility.

  • Mark A. York

    April 26, 2005, pm30 1:41 PM
    54

    This goes beyond fair use, a quote, which in a song can be as little as a partial sentence, a paragraph in a book, to trademark dilution ultimately. It is herculean leap of logic to include fanfiction as justifiable in that light.

  • Jocelyn

    April 26, 2005, pm30 2:40 PM
    55

    Thanks, Rachel. 🙂
    As for the Mazda issue, that’s a trademark use violation, I believe. Unfortunately, I don’t know as much about that as I do about Copyright (won’t take that class till next year). However, it could be argued that for a store to use the Mazda trademark would be making the store a profit. It’s certainly Mazda’s right to control whether anybody else GAINS money because of them. Beyond that…dunno. Ask me again in a year. 😉 I’m not sure if you could find a trademark violation defense in someone using a character/plot setting, etc. Fiction seems to fall pretty solidly in the realm of Copyright.
    Mark: Parodies, even full-length ones, are permitted by fair use laws. Why is it a herculean leap of logic for fanfiction to be included by that doctrine?

  • Huinesoron

    April 26, 2005, pm30 4:02 PM
    56

    On Mazda…
    Would it not be the case that the use of the Mazda logo would imply the consent of Mazda, and thus would cause people to associate the two? Thus, if the use of it was in a… let’s take an extreme example. If a car bearing the Mazda logo was shown mowing down protestors while [Insert politician of choice here] looked on and laughed manically, that would cause an awful lot of people to assume Mazda either hated the politician, or the protestors. Say goodbye to sales.
    Now let’s say there’s a fanfic, on a huge site full of fanfics, in which [Insert character of choice] runs through a crowd of protestors shooting them while said politician looks on and laughs manically. Do you /really/ think that people are going to read the fanfic and cry ‘Oh! The author of the original character must hate Politician/Protestors!’? If you really think that, then, with all due respect, you must be mad. People do /not/ think that the author has any say in what any given fanfic says. What they read in Fanfic is going to have /zero/ effect on the original author.
    And, incidentally, you’ve all been violating each others intellectual property by, gasp, interpreting what other people are saying and making comments on it. Jocelyn, would you like to sue everyone over it? Or, in the interests of fairness, would any of the rest of you like to sue Jocelyn? Or me?

  • Mark A. York

    April 26, 2005, pm30 4:42 PM
    57

    Depends if you deliberately parodying the work. This is easy to tell, such as The Wind Done Gone, but if the work just creates additional storylines with protected elements then no.

  • Keith

    April 26, 2005, pm30 5:02 PM
    58

    hobbies are hobbies, and if they bring enjoyment to the person pursuing them, that pursuit in and of itself should not be subject to ridicule.
    There’s been a distinction lost: Writing fanfiction versus distributing fanfiction.
    What Jocelyn does with other people’s copyrighted characters in the privacy of her own home is her business. Ridiculing that would be mean.
    When she distributes it, that’s another thing. In broad strokes, that’s publication. Publication is what writers do. She’s now a writer using someone else’s copyrighted material and distributing the result. Ridicule is still not quite called for, though it’s probably pretty easily justified.
    When she goes public with a bunch of ignorant, self-justifying gobbledegook, trying to rationalize compulsive copyright violation as though she’s an injured party, in a location frequented by writers, under an initial post that describes how writers really feel about their rights being stepped on, I think she’s earned both barrels.

  • Jocelyn

    April 26, 2005, pm30 5:55 PM
    59

    Self-justifying, eh, Keith? Funny, I’ve been posting some pretty compelling evidence that at least one branch of law leans strongly in my favor. What I can’t figure out is whether you’re just choosing to ignore it because you don’t like the result (which would be a definite case of self-justification) or you just don’t understand it at all and are too ignorant to admit it.
    I’ve tried to be respectful of your point of view. There are strong feelings and strong arguments on both sides, but for some reason, you seem to feel that just because YOU disagree with me, that gives you the right to be rude.
    That alone makes your side much weaker. Perhaps if you were to offer some explanation of WHY a specific point I’ve made is wrong, rather resorting to ridicule and name-calling, it might be easier to focus on the argument rather than the immaturity of your behavior.
    But I’ll try:
    There’s been a distinction lost: Writing fanfiction versus distributing fanfiction.
    Again, my justification comes not from myself, but from an interpretation of fair use. Fair use doctrine allows DISTRIBUTION of copyrighted material under certain circumstances without penalty: education, commentary, parody, among others.
    Courts generally take into account some combination of the following factors:
    Whether the material was distributed
    a) for nonprofit purposes
    b) without damaging the copyright owner’s ability to exercise his legal rights as the copyright owner (ie, to sell the work, the rights, produce and sell or grant rights to produce and sell derivative works, etc)
    c) for purposes beneficial to society (ie advancing creativity, education, commentary, progress, etc)
    This doctrine has been used to allow for-profit parodies of certain works. This doctrine has been invoked in a few cases where authors tried to attack critics of their work.
    My argument is that this doctrine provides a support for allowing fanfiction.
    KEITH…perhaps my conclusion is wrong. It’s possible. There is law on your side too. But I would appreciate it if you’d acknowledge that I have more evidence than my own opinions here, that I’m trying to have an intelligent discussion despite my very strong feelings, and I’d appreciate it even more if you’d return the courtesy.

  • Keith

    April 26, 2005, pm30 6:02 PM
    60

    Fair use doctrine allows DISTRIBUTION of copyrighted material under certain circumstances without penalty: education, commentary, parody, among others.
    Fanfic isn’t on the list.
    Fanfic isn’t parody.
    Fanfic is not covered by fair use. You wish it was. It’s not.
    Better come up with a new red herring. To mangle a perfectly good image, that one doesn’t fly.

  • Jocelyn

    April 26, 2005, pm30 6:23 PM
    61

    Fanfic isn’t on ANY list, that’s the material point. Until the issue does get litigated, legislated, or both, we can only try to infer based on the existing law where this new type of activity falls.
    That’s not a red herring, that’s perfectly normal legal reasoning. That’s what has to be done anytime some new technology/activity is created–you take the existing law, figure out what it means, and where the new activity best fits in.
    The copyright laws create a set of activities that copyright owners can control, and a set of activities that they can’t. You think fanfic is among the former, I think it’s among the latter.
    I’ve explained why I think fanfic fits among the latter, but I’ve yet to see you present any evidence based on what fanfiction is that suggests why it fits better among the former, because you’re too busy mudslinging.

  • Keith

    April 26, 2005, pm30 6:36 PM
    62

    Actually, no. That’s not quiet how it works.
    A number of uses count as “fair use.” Anything not on the list is not fair use.
    You’re trying to say that since the words “fanfic is not fair use” don’t appear in copyright law, it’s a gray area. Not so. Anything not on the list is not fair use. There is no gray area. The creation of fanfic is not protected by fair use.
    You wish it was. It’s not.
    I’m done saying it over and over, and you’re not hearing anything you don’t like anyway.
    End transmission.

  • Mark A. York

    April 26, 2005, pm30 6:45 PM
    63

    Keith’s right it’s not. “Fanfic isn’t on ANY list, that’s the material point.”
    And an ad ignorantiam.
    I’ll add this to the fray since it’s legal and related. In short the fanficcer’s ISP could be found liable.
    Harlan Ellison Case

  • Jocelyn

    April 26, 2005, pm30 6:48 PM
    64

    Uh, Keith, it actually says IN the fair use statues that the list is not exclusive. Those are merely examples of the TYPE of work that’s protected–that’s why I claim that fanfiction fits in among those types.
    But if we apply your logic, fanfiction isn’t included expressly among the types of derivative works listed that authors can claim control over.
    So if it isn’t listed on YOUR side, does that mean you can’t control it? Is that your position?
    And I’m hearing you loud and clear, I just think your interpretation is a tad flawed.

  • Jocelyn

    April 26, 2005, pm30 6:55 PM
    65

    Sorry, Mark, didn’t see your post before I posted.
    As per your first point, see my response to Keith above: the list of works that qualify for the fair use protection is expressly stated to be NON-exclusive in the statute. That’s why you can’t claim that just because something’s not listed in it outright doesn’t mean it’s not included–we’d need a court case or statute change to be sure.
    As per the Harlan Ellison case–if I read it correctly (sorry, I’m trying to juggle this and homework) that had to do with outright copying of Ellison’s work into free “e-book” format–ergo potentially affecting his profits. It’s the literary version of Napster-esque cases.
    That’s not the same as fanfic. Free “e-books” fail the fair use test in most case because 1) it’s commercial (most of the e-book companies do make a profit via advertising and whatnot) 2) it does affect the potential market for the author and the ability of the author to exercise his intellectual property rights.
    That type of “online piracy” is not the same as recreationally creating material based on another’s works and discussing it online. As far as I know, a case dealing with fanfiction-type activity has never gone to court.

  • David J. Montgomery

    April 26, 2005, pm30 7:14 PM
    66

    The fact remains that, even if fanfic were legally protected, which in all likelihood it’s not, it’s still unethical to write it against the author’s wishes. In the absence of express permission, you don’t have the right to do it. If nothing else, writers should respect the rights of other writers.
    Get permission or else don’t do it. What could be simpler than that?

  • Keith

    April 26, 2005, pm30 7:19 PM
    67

    Transmission resumes (briefly, I promise).
    It would be embarrassing (and irresponsible) to be wrong about fair use after being vehement about it–so I went looking for support for this statement of Jocelyn’s:
    the list is not exclusive. Those are merely examples of the TYPE of work that’s protected
    That appears to be so. However, that TYPE is characterized quite clearly, in a way that does not include fanfic. Here’s what I found at several sites, the clearest of which is http://www.publaw.com/work.html:

       Section 107 of the Copyright Act, entitled, "Limitations on Exclusive Rights: Fair Use,"
    is the statutory codification of the fair use doctrine. This judicially developed concept
    strives to balance the public's need to know and be informed against authors'
    incentives to create. The copyright law contemplates that fair use of a copyrighted
    work without permission shall be for purposes such as (1) criticism and comment,
    (2) parody and satire, (3) scholarship and research, (4) news reporting and (5)
    teaching, and that such fair use will not result in the infringement of a copyrighted
    work.

    So parody and satire are covered by fair use because they serve the public’s need to be informed.
    Showing that fanfic serves that need would require serious pretzelmaking.
    And now transmission ends with ambiguity put to rest, and I’m out.

  • Keith

    April 26, 2005, pm30 7:22 PM
    68

    Once more, with readable formatting:

    Section 107 of the Copyright Act, entitled, "Limitations on
    Exclusive Rights: Fair Use," is the statutory codification of
    the fair use doctrine. This judicially developed concept
    strives to balance the public's need to know and be
    informed against authors' incentives to create. The copyright
    law contemplates that fair use of a copyrighted work without
    permission shall be for purposes such as (1) criticism and
    comment, (2) parody and satire, (3) scholarship and research,
    (4) news reporting and (5) teaching, and that such fair use will
    not result in the infringement of a copyrighted work.
  • Jocelyn

    April 26, 2005, pm30 7:23 PM
    69

    Even if fanfic were legally protected…it’s still unethical to write it against the author’s wishes.
    Dunno about that…what about criticism? Some authors (like Anne Rice) hit the ceiling when people criticise their work. Even though it’s legal, is THAT unethical? I’d argue not. I’d submit that fanfiction and criticism are all in a category of activity that is simply part of the literary “price of fame” if you will. People may not like your work, people may talk about it, people may write stuff based on it. Doesn’t mean they’re unethical.
    Get permission or else don’t do it. What could be simpler than that?
    (Chuckle) a lot of things. But for the sake of argument, I’ll hash it out. For example: some authors/copyright owners like JK Rowling, JRR Tolkien, and Marvel have issued blanket permission for fanfiction. Okay, that’s covered.
    But I also wrote a fanstory based on Disney’s Pirates of the Caribbean. They’ve said mum on the subject, but for the sake of argument, what if I wrote their legal department or whatnot asking permission to post my story?
    As is often the case with very big fiction franchises, in all likelihood, I would get no response at all. What does that mean? Do I have permission or don’t I? How long should I wait? Do they care? Should I care if they obviously don’t think I merit a response?
    But on the whole, my reason for not asking permission is that I consider fanfiction to be like I stated above: part of the natural discussion/critique/speculation that revolves around any published work. We don’t need permission to talk about it, to critique it, or even to parody it, and that doesn’t make us unethical. My opinion is that based on that, fanfiction doesn’t need permission either.

  • Mark A. York

    April 26, 2005, pm30 7:27 PM
    70

    Indeed. It’s not of the type covered in the law save in Jocelyn’s head. I said it was related not identical. He has a series on fanfic I linked here somewhere. It ain’t kosher. That’s the bottomline.

  • Jocelyn

    April 26, 2005, pm30 7:32 PM
    71

    Uh, sorry, Keith, ambiguity not put to rest, and I’m afraid your source material is flawed.
    That is NOT what the statute says. It’s a paraphrase, albeit a close one.
    BELOW is what the statute actually says:
    § 107 · Limitations on exclusive rights: Fair use
    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or
    by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use),
    scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors
    to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    The fact that the list of activities that your source has is NOT exclusive is the reason the statute lists those four criteria for determining whether something is fair use.
    Fanwriters can make a case for including fanfiction as a type of commentary or educational use, or based on the four factors in the statute, possibly get it included one day as a category of fair use all its own (that’s a long shot, I admit, but I can dream.)

  • Jocelyn

    April 26, 2005, pm30 7:35 PM
    72

    Mark: Can’t find the fanfic link you mentioned connected to the Ellison case. Could you repost it?
    Furthermore, there are quite a few respected intellectual property scholars and lawyers who feel that fanwriters have a strong case for including our activity in the fair use categories. Check out the actual wording of the statute, and I’ll see if I can hunt down some of the articles on the subject–just so you’ll know I didn’t invent this reasoning myself.

  • Mark A. York

    April 26, 2005, pm30 7:41 PM
    73

    I’m reading you loud and clear. It’s a series. A rather long one by an Illinois intellectual property lawyer that represents SFWA.
    Warped left

  • Mark A. York

    April 26, 2005, pm30 7:45 PM
    74

    Yeah you are dreaming. It’s not commentary.

  • Jocelyn

    April 26, 2005, pm30 7:50 PM
    75

    Perhaps not. But as I said (and the law says) those categories aren’t exclusive–that’s why the criteria for determining fair use are there.
    And then there’s the all-important “public policy” argument, which carries a LOT of weight in court, if not as much in the legislatures. Fanwriters do in fact have a fair amount of public policy on their side as to why fanfiction should be allowed.
    I’m still reading the essay. Thanks for that link! At this rate I’m going to be up till 2 am to get my homework done! 😉

  • Jocelyn

    April 26, 2005, pm30 8:22 PM
    76

    Okay, I’ve read it (albeit quickly) and the essay seems only to validate the concession that I’ve made:
    Fanfiction is a murky issue.
    The trademark claims I can’t be so certain of, since I’m not as familiar with them as I am with copyright law. Although from what I do know, I think that to make a trademark infringement/dilution claim based on a fanwriter’s use of their character/title/whatnot, the author would have to have registered a trademark. Otherwise, due to the essay author’s point about the courts liking to keep copyright and trademark law separate, the case would just get kicked into copyright law and the claimant required to find a case under copyright statutes.
    Those advertising and potential confusion issues are interesting. I hadn’t thought of the self-advertising angle (honestly I don’t think any of my fanwriting would be good enough to warrant a publisher “discovering” me) but it merits considering. As for the “misrepresentation” issue, from what I know of the law in those types of cases, the standard is usually, “would a reasonable person see Product X and believe it was actually Product Y?”
    Those two-bit disclaimers most fanwriters put in their stories might be worth more in the misrepresentation department than the essay author thinks (assuming that standard is in use for misrepresentation claims, which I do not know for certain.)
    Anyway, I’d better sign off for the evening as well and get my schoolwork finished, but those were my immediate thoughts upon reading the essay.

  • Jocelyn

    April 26, 2005, pm30 9:09 PM
    77

    Here’s a few more academic/legal sources for you folks to chew on, if you wish:
    http://www.tushnet.com/law/fanficarticle.html
    http://www.bu.edu/law/scitech/volume9issue2/McCardleWebPDF.pdf
    They’re both law journal articles on the subject. I think the second is the more recent, but I could be wrong, and I don’t know how much emphasis is put on trademark versus copyright claims.

  • Claire

    April 26, 2005, pm30 9:18 PM
    78

    Hmmm…JD’s flexing their legal muscles determined to legitimize an activity that requires somebody else do the real work first before they can have their fun. Convoluted arguments and the rationalizations, defenses and explanations so that the internet may be graced by yet another story detailing Harry Potter and his teacher, Snape, having sex. Or is it Hermione and Ron? Or Ron and his siblings? It all runs together.
    Truly our world would be that much poorer without these pithy and exploratory works, examining the dark corners of her fiction that JKR failed to…um, explore.
    Must be another fanfic thread at Lee Goldberg’s blog. I think fanfiction authors keep an eye on Mr. Goldberg. Why? Because lots of people read his blog? Because he’s so darned logical in his comments?
    Has the first amendment been invoked yet? Did I miss it?

  • Jocelyn

    April 26, 2005, pm30 9:34 PM
    79

    JD’s flexing their muscles… Oh, did you mean me? Not for another year, alas.
    Convoluted arguments and the rationalizations, defenses and explanations so that the internet may be graced by yet another story detailing Harry Potter and his teacher, Snape, having sex. Or is it Hermione and Ron? Or Ron and his siblings? It all runs together.
    Or so that the internet may be graced by yet another story about Lily Evans and James Potter’s first date. Or the story of Frodo and Bilbo Baggins’s impression of arriving in Valinor, the first mortals to set foot there in over 1000 years. Or speculating on what Oliver Wood’s professional Quidditch career was like with the war starting.
    Don’t try to condemn all fanfiction based on the creepiness of the fringe element. That kind of logic never works in any circumstance.
    Must be another fanfic thread at Lee Goldberg’s blog. I think fanfiction authors keep an eye on Mr. Goldberg. Why? Because lots of people read his blog? Because he’s so darned logical in his comments?
    Actually, Mr. Goldberg was the one who brought himself to fanwriters’ attention when he paid a visit to a fanfiction message board and proceeded to issue blanket condemnations. He himself admitted later that it was like “walking into a bar mitzvah and saying ‘I hate Jews.'”
    But yes, many fanwriters still keep an eye on his blog because of that, and also some, like myself, enjoy hearing the perspective of a person “on the other side” as it were. It’s a good way to learn.
    Has the first amendment been invoked yet? Did I miss it?
    Kind of, I pretty much include it in my “public policy” claim in favor of fanfiction. Freedom of expression and all that. I have to go to bed, but I’d be happy to do it tomorrow, if you like!
    :0)

  • Claire

    April 26, 2005, pm30 9:42 PM
    80

    Kind of, I pretty much include it in my “public policy” claim in favor of fanfiction. Freedom of expression and all that. I have to go to bed, but I’d be happy to do it tomorrow, if you like!
    Alas, I fear we shall not be able to avoid that bit of jurisprudent tap-dancing. Please, no fanfic thread is complete without invocation of the first amendment, relegation of all those highly sexualized stories based on children’s literature to the ‘fringe’ element and the ‘public policy’ statement. So, Mr. Goldberg is now on the fanfiction writer’s ‘watch list’. Lucky him.

  • claire

    April 26, 2005, pm30 11:07 PM
    81

    Maybe it’s that when I learned of fanfic, it was Trek stuff and I have never EVER heard that Roddenberry or anyone connected with him minded it. I don’t recall anyone making money from it either. Probably it was accepted because it was respectful, showed a love of the show/genre and I never heard of anyone saying “I’d rather read fanfic than a book by someone connected with the show, or an “authorized” book.
    Hi Andi,
    go here: http://www.lionheartdistribution.com/startrek.htm
    sure looks like somebody’s making money off it. Also here:
    http://www.lionheartdistribution.com/lotr.htm
    What do I know? Maybe they’re licensed…Do you think the Tolkien Estate is okay with stories depicting their characters engaging in incest. I’d heard they were pretty tight about their licensing, but I guess I’m wrong.
    Cool site, tons of stuff there. Bring your credit card.

  • Walter

    April 26, 2005, pm30 11:42 PM
    82

    I’m steering clear of the legal debate because I can’t pretend to keep up with the rest of you there. But the ethical debate I find interesting.
    David Montgomery said:
    The fact remains that, even if fanfic were legally protected, which in all likelihood it’s not, it’s still unethical to write it against the author’s wishes. In the absence of express permission, you don’t have the right to do it. If nothing else, writers should respect the rights of other writers.
    David, I get what you’re saying, but the thing is, whether or not fanfiction is unethical is a very subjective question. You think it is, and obviously most of the published authors here agree. But clearly there are many published authors who don’t consider it unethical. There isn’t an absolute here. Just because you believe something is wrong doesn’t mean we all have to agree.
    As a fanfiction writer, if I know an author has said he or she does not like fanfiction, fine, I won’t write it, because I respect his or her feelings. But if the author hasn’t made his or her wishes clear, I’m not going to worry about it.
    Those of you who have posted that fanfiction is unethical and/or a worthless endeavor, I’m curious what you think about books like Wicked, which, in my opinion, is basically fanfiction (albeit very well written fanfiction). The author has said in interviews that he didn’t obtain permission from the original author’s family (because copyright wasn’t an issue). Does that make him unethical? How is his situation any different from that of the legions of fanfiction writers out there?

  • Claire

    April 26, 2005, pm30 11:51 PM
    83

    Isn’t the Wizard of Oz in the public domain? I’m not certain I understand your question, Walter.

  • Walter

    April 27, 2005, am30 12:02 AM
    84

    Yes, Claire, it is public domain. Which is why my question is entirely about the ethical (not legal) debate. Is it ethical for the author of Wicked to use the original characters from The Wizard of Oz for his own story? And if it is ethical, why is it OK in this situation, but not for fanfiction in general? Because the original author is dead? (I’m not trying to be argumentative here. I really am just curious.)

  • Huinesoron

    April 27, 2005, am30 5:18 AM
    85

    On the ethical issue, if it’s about asking the /creator/, not just the person with the legal rights to the thing, then Peter Jackson has completely violated that, too. He never asked Tolkien, he has no /idea/ what Tolkien would want in films of his books… ethically, he’s a fan-filmer. Yes, he got permission from the Tolkien Estate, but the creator himself wasn’t involved. Legally, sure, he’s fine, I’m not quibbling that.
    The same goes for Wicked (which, Walter, I agree is a /great/ book), and… ooh, countless other things. Actually, most writing is based off other pieces, to some degree. It’s very rare that you find a completely 100% orginal piece. But that’s a little less the issue – it’s not direct character use, just character types.
    And, on the issue of all the really weird ‘fics out there — Jocelyn is, I fear, wrong, at least for the major fandoms (Harry Potter, Lord of the Rings, probably Star Trek…). The vast majority of fanfic in those areas is either sex/romance of some description, usually horribly written, or self-inserts with all the personality of a fruitfly who stand out from the characters like a grape on a plate of peas. A lot of us wrote that sort of thing before. We’ve grown past that stage. We’re hoping those writers do too. Like any writers, we have to learn how to write fanfic, how to write characters as the original author wrote them. We just know that we have a wider audience to show our experiments to than the few friends I’d show my original stuff to.
    I’ve gone off on a tangent again. Did I make a point anywhere in there?

  • David J. Montgomery

    April 27, 2005, am30 6:12 AM
    86

    It’s unethical because you’re assuming permission when you have no reason to believe the creator would grant it. If the creators have given permission, it’s not unethical. But it is unethical to take someone’s creation without that permission.
    In the absence of permission, you don’t have it. Silence does not mean agreement. How hard is that to understand?
    You can run around this issue as much as you like, but I can’t imagine how anyone who thinks of themselves as a writer could take another writer’s creations without their permission and think it’s okay.
    At least when fanficcers say “I don’t care if it’s illegal, I don’t care if it’s wrong, I like doing it and I’m going to keep doing it” you can admire their honesty.

  • Mark A. York

    April 27, 2005, am30 8:21 AM
    87

    Yeah this really is a cult.

  • Jocelyn

    April 27, 2005, am30 10:35 AM
    88

    Mark: A cult? Where precisely did you get that conclusion?
    David: But how do you define “taking?” We’ve spent about 24 hours on how I define it, so let’s try the opposite–what’s your definition?
    If a “taking,” as you seem to suggest, is any Internet use of another person’s material, then do we have to get permission to talk about a book/show on a message board? Is it unethical then to review/criticize a book or a show without permission? Is it unethical to speculate about what will happen in the next book in a series or the next episode of a show?
    Where do YOU draw the line, then, between permissible and ethical fan/commentor activities and unethical “taking” of material?

  • claire

    April 27, 2005, am30 10:59 AM
    89

    I haven’t read Wicked, so I can’t comment, Walter. I had the impression it’s a parody…it’s not?
    Re: Cultism. You hit it well, Mark York. Fandom comprises a lot of the basic criteria including this weird need to clump on Mr. Goldberg’s blog whenever the topic comes up.
    On a serious note, several aspects of the culture are deeply disturbing. On a less serious note, I adore watching how they take the basic example and expand and distort it by handing over a ridiculous example to make the point that it’s really okay to steal someone’s creation and use it for their own purposes. (operative word is STEAL, here). Beyond that, the need to legitimize the thievery, to make it okay, so it can be something they can put, with pride, on their resumes. In the end they betray the very people they claim to be – other artists.

  • David J. Montgomery

    April 27, 2005, am30 11:07 AM
    90

    If you take another writer’s character, or the original world they’ve created, and use them in your own story that’s taking. And that’s unethical to do unless the creator gives you permission.
    Talking about or writing about someone’s work is obviously completely different from this. And I suspect you know it is. I think you’re being disingenous if you claim otherwise.
    Example 1:
    Harry Potter and the Sorceror’s Stone is an engaging and original first novel that is sure to delight readers of all ages.”
    Example 2:
    “Harry Potter woke up on Tuesday with a raging boner and immediately thought about Hermione.”
    See the difference?

  • Mark A. York

    April 27, 2005, am30 11:15 AM
    91

    It’s the mother of all rationalizations in my view. Taking means you take the copyright protected elements and use them as your own. What part of that don’t they get? It’s not commentary. It’s not parody. It’s use.

  • Jocelyn

    April 27, 2005, am30 11:19 AM
    92

    Okay, David, let’s try some other examples, a little more mainstream:
    Example 1: “Wow, I can’t wait until Harry Potter Book 6 comes out! What do you think will happen?”
    Example 2: “I think Dumbledore will die in Book 6. I think he’ll die saving Harry.”
    Example 3: “I’ll bet Lily and James’s first date went something like this…”
    Example 4: “Here’s a little story I wrote about the Marauders’ first year at Hogwarts.”
    Which of the above is taking and which is just permissible discussion? When does speculation, however detailed, give way to this heinous thievery?
    And Claire…there have been three pro-fanfiction people here in this conversation, and a small army of anti-fanfiction people. If anyone’s clumping, it’s not us. If fanwriters are a cult, so are fantasy football clubs.

  • Walter

    April 27, 2005, am30 11:20 AM
    93

    Claire: Wicked is definitely not parody. It meets pretty much all of the “criteria” for fanfiction (assuming such criteria even exist): It was written by a fan of the original work, with characters taken from the original work to tell a new story (in this case, the backstory of the Wicked Witch of the West). As far as I can tell, the only thing that makes it different from all the rest of the fanfiction out there is the fact that it’s extremely well written, and the fanfiction author is getting paid for it.
    David said:
    You can run around this issue as much as you like, but I can’t imagine how anyone who thinks of themselves as a writer could take another writer’s creations without their permission and think it’s okay.
    I realize that “because everyone does it” isn’t a good excuse, but the fact of the matter is, taking other writers’ creations happens all the time, with or without their permission. As Huinesoron wrote, people _ legitimate, published writers (and film directors) _ have “stolen” from earlier published works many times over the years. As long as the original creators are duly credited, I don’t consider that unethical. As I said before, I can understand why an author wouldn’t *like* to have his or her work used, and therefore if he or she specifically asks to be left alone, I’ll respect that. But I do not consider it unethical, and I won’t go out of my way to ask permission. Is that unfair of me? I suppose so. I consider it more a matter of being impolite than unethical, though.
    Which brings me back to Wicked: Is it unethical for the author of that book to have used the characters from The Wizard of Oz without permissions? I would, of course, argue that it isn’t unethical. But for the authors who consider fanfiction unethical, is Wicked acceptable?

  • Jocelyn

    April 27, 2005, am30 11:20 AM
    94

    Mark: Oh, sure, it’s use. But why not “fair use?”

  • David J. Montgomery

    April 27, 2005, am30 11:28 AM
    95

    Come on, Jocelyn. Now I know you’re just quibbling. (Either that or you’re an idiot, which I don’t think you are.)
    Nobody cares if you talk about or speculate about a book, story or characters. It’s when you write a story using those characters and then publish it on the internet that you’re stepping out of bounds.
    Sure, you can do it if you want to… and plenty of people do. But writers should respect each other’s creations.
    Enough of this nonsense.

  • Jocelyn

    April 27, 2005, am30 11:35 AM
    96

    Uh, David, I’m neither quibbling nor an idiot, and I’ll thank you not to be patronizing. Until now, I’d always appreciated your civility in this debate.
    My reason for using those examples is because you are operating under the assumption that there’s this huge line between the speculation and the stories that develop.
    Haven’t you realized that that’s how fanfiction first got started?!
    The speculation, the critiquing, the commentary, and finally the fanfiction, are a nearly-seamless mass of fan activity that goes on for any given show/book/movie/whatnot. People mull over plot points, speculate over “what comes next” and “what came before” and “what came between”, that speculation breeds ideas, and somebody (or everybody) thinks and thinks about it and finally winds up with a story in their head that won’t shut up until they put it on paper.
    Then they pop back onto the message board/website and say “Hey, fellow fans, that idea we were talking about? What do you think of this?” and passes the story around for all to see.
    It’s the same kind of activity that might take place in the Real World among a group of buddies meeting at a coffee house on a regular basis, just on the larger scale of the Internet.
    The line’s not so clear as you assume, so don’t use your ignorance-based assumptions about how the fan community works to automatically declare something “nonsense.”
    (And I’m sure you or one of the others will start asking about porn and pedophilia in fanfiction very soon. As I keep saying, there are freaks and sickos just as prevalent in the realm of original fiction. If you can’t condemn all books for their actions, you can’t condemn all fanfic for our weirdos’ actions.)

  • claire

    April 27, 2005, am30 11:48 AM
    97

    And, of course, those who are non-ignorant of the culture are what, exactly, Jocelyn?
    Porn, Pedophilia and Fanfiction. Who needs to make the connection? You just did.

  • Jocelyn

    April 27, 2005, pm30 12:02 PM
    98

    And, of course, those who are non-ignorant of the culture are what, exactly, Jocelyn?
    Fans, of course.
    Porn, Pedophilia and Fanfiction. Who needs to make the connection? You just did.
    Oh? Are you trying to tell me that porn and pedophilia didn’t EXIST before fanfiction? I don’t think you’ll get very far with that one.
    I said there is undoubtedly a connection (which way it goes is another, undetermined question altogether) between fanfiction that contains pedophilia and pedophiles. Just as there is undoubtedly a connection between original stories concerning pedophilia and pedophiles.
    Why would a person write a story, fanfiction or original, that glorifies pedophilia if they’re not a pedophile?
    The existence of fanfiction in general does not CAUSE pedophilia, just like the existence of the Internet at large doesn’t cause pornography. These new modes of communication/expression (both of them) have just given the sickos as well as the normal people an opportunity to express themselves.
    Normal people benefit from new methods of communication and expression, and unfortunately, we’ve yet to determine a clear-cut way to keep the sickos from benefiting too. Fanfiction isn’t the only area where that’s a serious problem.

  • claire

    April 27, 2005, pm30 12:17 PM
    99

    And, of course, those who are non-ignorant of the culture are what, exactly, Jocelyn?
    Fans, of course.

    Au contraire. Au tres contraire.
    Porn, Pedophilia and Fanfiction. Who needs to make the connection? You just did.
    Oh? Are you trying to tell me that porn and pedophilia didn’t EXIST before fanfiction? I don’t think you’ll get very far with that one.

    Um. No. That’s not what I was trying to tell you. We’re you purposely trying to misunderstand?

  • Jocelyn

    April 27, 2005, pm30 12:27 PM
    100

    No, I’m honestly not following you. You asked me (at least I think that’s what you meant) what people who are non-ignorant of fan culture are.
    I said fans. If I misunderstood your question, (and I never misunderstand deliberately, but I gather that you weren’t asking what I thought you were) please clarify it.
    Au contraire? How so?
    I’m sorry if I misconstrued what you were trying to claim, these threads are flying so fast that I may have mixed up what you were referring to.
    If you wanted to know about how I know so much about fanfiction, pedophilia, and porn, the answer is that I’m aware that it’s a very serious issue, and I try to keep up to date on it. I’ve also dealt with it for three straight semesters of constitutional law. Pornography and internet regulation are some of the hottest topics in any law class today, and we do a lot of reading and independent research on the subject just to fuel our arguments.

  • Katarina

    April 27, 2005, pm30 1:28 PM
    101

    All right, I’ll take the bait and join in on the discussion…
    There have been two major (ethical) arguments against fanfiction in this thread. The first is that fanfiction is wrong if and when it makes the author uncomfortable, since the author shouldn’t have to take anyone twisting her stories. As has been pointed out, this is also true of criticism and reviews, and I thus see it as rather pointless – once a story is out there, the author has very little control over how it is interpreted.
    The other argument is that characters belong to the author, and that it is thus thievery to use them, in a way that criticism and parody wouldn’t be. I can understand this point of view, but it makes me rather curious to find out how it applies to derivative fiction in general. The “pro-fanfic” team has already mentioned Wicked, but there are very many novels out there based on someone else’s works. These are considered “all right” because the author is dead – but then we are once again back to the subject of the author’s feelings, rather than the idea that fanfiction is thievery because it’s derivative. What if the author was against fanfiction before s/he died? Would it still be all right to write derivative fiction once the copyright was over? Or to put the difference between derivative fiction and fanfiction another way – is it all right for Tim Rice to write Jesus Christ Superstar, but not for a fan writer to write Jesus fanfic based specifically on that musical?
    Also, I’m reminded of the situation in the music business, where it’s perfectly acceptable to make a cover. I’m certain there are many musicians who find the cover versions of their songs quite painful, and yet few argue that it’s unethical in general.
    I do think that there are consistent anti-fanfic positions to take, but the issue, when compared to other forms of derivative arts, is hardly a clear-cut one legally *or* ethically.

  • Katarina

    April 27, 2005, pm30 1:30 PM
    102

    Argh! Criticism and parodies, obviously, not reviews. I should really use that preview feature better…

  • Mark A. York

    April 27, 2005, pm30 1:34 PM
    103

    Because you take more than is allowed under fair use. That’s why. “Facts are stubborn things.” John Adams

  • claire

    April 27, 2005, pm30 1:53 PM
    104

    Jocelyn, I’m laughing at your premise that the only people who truly know about fan culture are fans, therefore those who make assertions against it or about it are non-fans and don’t know what they’re talking about.
    It doesn’t take much to keep up on the issues regarding fanfiction, porn and pedophilia. Well, maybe it does, blogs concerning the issue tend to blow up, people are hounded. That aside, take an hour and cruise around fanfiction communities. You’re claims of ignorance are wearing thin. But if it’s truly of concern to you, that’s great. As a budding lawyer, you’d be in excellent position to aid in encouraging legislation to tighten the laws. As a fan, you’d be in excellent position to speak out against it and encourage other fans to do the same.

  • Christine

    April 27, 2005, pm30 2:17 PM
    105

    Regarding fanfic and copyright law, I’d just like to point out that laws are not the same in every country, and the internet and fanfic are a worldwide phenomenon.
    Specifically, in the UK there is no copyright in a character in a book. There is copyright in the exact description of the character, in pictoral representations of the character, but here it is perfectly legal to write a story using a character created by another author so long as you are not passing it off as their work (or copying actual passages of their writing). So if a fanfic writer is based in the UK and hosting their fanfic writer on a UK server, unless it is breaching trademark or other laws, there is no legal objection to it in any jurisdiction which legally matters. (No, I’m not a lawyer, but my father is and I’d be happy to give you his name so you can Google it for his credentials if you wish.)

  • Graham

    April 27, 2005, pm30 2:23 PM
    106

    Following one of the links posted earlier in this thread, I ended up at Eugene Volokh’s blog. He’s a copyright law professor at UCLA, and this entry specifically covers fanfic:
    http://volokh.com/archives/archive_2004_12_19-2004_12_25.shtml#1103746756
    I tried to get him to write a bit more about it, but he said he was busy. Clearly he’s trying to dodge the wrath of the fanfic community.

  • Jocelyn

    April 27, 2005, pm30 3:41 PM
    107

    Claire: I never said the ONLY people who know about fan culture are fans. Just that in this instance certain people on this blog were making assumptions about fandom and fanfiction culture that were just plain wrong.

  • zvi

    April 27, 2005, pm30 4:01 PM
    108

    Mark, you cannot copyright characters in the United States. You trademark characters. You copyright fixed creative works: a novel, short story, poem, play, recording of a performance, television script, television show, movie, song lyrics, musical recording, etc.
    Keith, you said What’s lost is the ability of the owner of intellectual property to decide how it’s used. Without that ability, intellectual property is without value; it ceases to be property. You do realize that the copyright (a right to make copies) is not a moral right, but instead, a legal fiction given to the creators of IP so that they are incentivized to make more IP? If you write a story about a princess with long golden-hair who falls in love with the dragon who is supposed to eat her as his sacrifice, and I write and upload to my website a story about how they raise their little dragon-royal hybrid babies, I haven’t erased one word of your original stories. I haven’t made a copy of your original story. I haven’t prevented you from writing a story about how the dragon accidentally steps on the princess one day in the cave and goes on a rampage against the countryside because he can’t deal with his guilt. I haven’t prevented you from selling the rights for movies, tv, animated shows, merchandising, foreign sales, e-book versions, audiobook versions, or theatrical adaptation. And further, by making all of my little fannish friends aware of your dragon meets princess story, I have increased the chance that any of my fannish friends will actually legitimately acquire any of those other kinds of copies you could have created.
    So, please, tell me what harm fanfiction is doing you? It’s not erasing your work. It’s not copying your work (because for the purposes of copyright, we’re looking at whether or not I am lifting your original text, not adapting your original ideas: i.e. characters, settings, plot). And I’m not preventing you from creating further work in the same vein, unless you’re telling me that there are writers out there so troubled by the idea of fanfiction that they have stopped publishing because of it. I’m not engaging in identity theft and representing myself as you, the writer of the princess/dragon story my little fan friends and I all love so much. (Or, that we would have loved, if you had just thought about the implications of what you had written a little more. Not all fanfiction is written out of a fit of adolescent worship; a lot of it is written out of the sense of, “This would be really great except for the x, y, and z parts where the original author has fucked it all up. How do I fix it?”)
    I think part of what’s happening in our discussion is that you anti-fanfiction people are assuming that pro-fanfiction people should fall into line with your moral premise that authors are special, privileged people working in creative isolation to produce heartbreaking works of staggeringly original genius. And the pro-fanfiction people view the world as a place full of collective storytelling where ideas are built on other ideas and stories, characters, landscapes, etc. should be understood in the context of other ideas and stories. I feel a lot like pagan whose been told she’s a bad, bad person for raising a circle of power by a Christian who engages in ritual cannibalism (i.e. taking communion) on Sundays.

  • Mark A. York

    April 27, 2005, pm30 4:22 PM
    109

    These people are nuts. The characters are part of the original story, the names, descriptions; behavior, traits, all are part of the original expression. It’s using the original creation for playtime and since it’s published you’re on the hook for whatever it may be. Good luck with that.

  • Christine

    April 27, 2005, pm30 4:31 PM
    110

    Unless you’re in the UK, when you’re not. 🙂

  • claire

    April 27, 2005, pm30 4:33 PM
    111

    And what’s the law regarding US servers carrying such illegal content?

  • Mark A. York

    April 27, 2005, pm30 4:34 PM
    112

    Volokh disagrees:
    “I’d counsel against it. The fan fiction would use enough of the Moorcock and Hamilton material — enough character attributes and allusions — to constitute “copying” for copyright purposes (even if the only things that they literally copy are the names).”
    You’d have use the names with no descriptive connection to the original. Right. That’s likely.

  • Christine

    April 27, 2005, pm30 6:54 PM
    113

    Claire: Presumably US servers would act on breaches of US copyright law, if they believed they would have a lawsuit served on them if they didn’t.

  • Christine

    April 27, 2005, pm30 6:56 PM
    114

    Regarding copyright law in the UK:
    Copyright expert Robin Fry, of the London law firm Beachcroft Wansbroughs, says there’s “no copyright in characters – only in a book’s storylines – so material ‘inspired’ by others may well be acceptable. The Willows in Winter or Bored of the Rings don’t disguise their origins and that’s fine.
    “But if the public become confused over the source or think it’s the real McCoy, then a freezing order’s not far behind.
    “I wouldn’t recommend anyone to pitch Barry Trotter or Dr Atkins Beer and Chips Diet Revolution to an agent.”
    http://news.bbc.co.uk/1/hi/magazine/3188813.stm

  • chuck

    April 27, 2005, pm30 9:09 PM
    115

    Fan fiction deserves protection because it gives authors and readers meaning and enjoyment, allowing them to participate in the production of culture without hurting the legitimate interests of the copyright holder. Fan copyright disclaimers express a sense of justice and fairness that copyright law must address, especially as it attempts to extend its reach to individuals.
    Whoa. From the Tushnet thing. Fanfiction writers are actually just and fair. Copyright law needs to understand that. It’s okay for me to steal somebody else’s work as long as I let everybody know that I’m stealing it and it doesn’t belong to me .
    So when somebody steals a car, it’s okay if the thief puts a sign-in the back window explaining that the car’s not his, and that he’s stealing it. His stealing it should be protected because it adds to his enjoyment and gives his life meaning. Thank you, Ms. Tushnet, for explaining it.
    The paper won a prize and her JD’s from Yale.
    Gosh, Mama told me stealing wasn’t nice. My bad.

  • Jocelyn

    April 27, 2005, pm30 9:13 PM
    116

    The paper won a prize and her JD’s from Yale.
    Maybe that suggests that she understands a little more about INTERPRETING the law than you do, Chuck!
    (Gasp!) I know that’s a novel concept, that a lawyer might know more about the law than you, but try to wrap your mind around it.

  • chuck

    April 27, 2005, pm30 9:21 PM
    117

    Hmmm…friend of yours? No, I think the problem is that my Mama doesn’t have a JD from Yale. Ethics were simple in the ‘hood where I grew up. But, you’re right, Ms. Tushnet has an impressive bio, so I guess I’ll shut up and accept whatever she says.
    So – I take you agree with the car stealing corollary? Especially if the fellow’s stealing it to take his poor flabbergasted Mama to the hospital, she having fallen over to learn that a lawyer from Yale advocates stealing?

  • Jocelyn

    April 27, 2005, pm30 9:27 PM
    118

    Actually, your comparison to the car thing is wrong. A car and a story are not the same type of property.
    See comments above about the nature of “taking” between myself and Keith and a couple of the other boys from yesterday afternoon/evening.
    So the lawyer from Yale (who I do admire as one of the first and only IP scholars to really sink her teeth into the fanfic issue, which until then was pretty much under the legal radar) is actually analyzing the use of intellectual property and where that falls into the spectrum of a copyright owner’s rights.
    I think the other article, the more recent one, may have some trademark stuff in it, but I don’t recall.
    So if a lawyer from Yale (or anywhere else from that matter) explains a complex legal distinction regarding a specific set of rights for intangible property, what I’m arguing is that you might want to admit the possibility that she knows a bit more than you.

  • chuck

    April 27, 2005, pm30 9:35 PM
    119

    Absolutely, Ma’am. Far be it from me to question the goings on between the ears of peoples with book-learning and all. No doubt no lawyer anywhere disagrees with her. I mean, she won a prize and clerked for Justice Souter. Where else do dummies like me go for clarity? We accept and stand in proper awe of the mechanations.
    Something about this conversation so reminds me of that poster at Fanfic Savvy who made the comments about double-plus ungood, black is white stuff. Forget the handle, but boy s/he had a practical head on his/her shoulders.

  • Jocelyn

    April 27, 2005, pm30 9:42 PM
    120

    Forgive me, Chuck, perhaps I spoke hastily. Art thou a lawyer?
    You decry the merits of education and experience a particular field, so is there something in your body of knowledge, either acquired or inherited, that lends your opinion credit beyond, “Because I said so?”
    Yeah, I’ve already been asked if I’m this as-yet-unidentified Fanfic-Savvy poster, unfortunately that’s one debate I missed. Sounds like it was a good one.

  • chuck

    April 27, 2005, pm30 9:48 PM
    121

    And if I am a lawyer…what happens? My words transform? My opinions become valid? Yes, you missed a fine debate, one of the more interesting of my career, a turning point for several people. Pity you missed it.

  • Jocelyn

    April 27, 2005, pm30 9:52 PM
    122

    And if I am a lawyer…what happens? My words transform? My opinions become valid?
    It’s called credibility, Chuck. And being a lawyer isn’t necessary (I’m not one) but citing some evidence/experience/background knowledge beyond “I’m right because I say I’m right” always lends credibility.

  • chuck

    April 27, 2005, pm30 10:00 PM
    123

    Okay. What evidence/credentials do you require to lend credibility to my statement that stealing is wrong?

  • Jocelyn

    April 27, 2005, pm30 10:30 PM
    124

    None.
    You’re missing the issue altogether. The issue is whether use of intellectual property without permission is stealing.
    1) The law says intellectual property is not the same as real property. The law says the rights of intellectual property owners are different from real property owners.
    2) The law says some forms of use of intellectual property (see the “fair use” statutes and discussions in above posts) are legal even without permission, therefore not stealing.
    3) Some of the scholars I’ve cited have concluded that fanfiction is among those fair uses.
    You have every right to disagree with them, but if you want to be credible, you’re going to have to find some credible evidence of your own to counter the experts. (No, the experts don’t all agree. I’m just suggesting you find or name something more credible than your own as-yet-unbacked-by-authority opinion.)

  • Storyteller

    April 27, 2005, pm30 10:35 PM
    125

    Hey, Keith, let me let you in on a little secret. THERE ARE NO NEW STORIES. You do not “own” the ideas in your tales any more than the last guy who wrote stories based on them. Every story that can be told has been told already, probably more times than you can count. The real joy in writing comes not from deluding yourself that you’re making up something no one’s ever heard before, but in entertaining the reader with thoughts and style that are YOUR take on the ideas. I think writing and publishing in general would be a lot more enjoyable and fulfilling as professions if people would let go of this absured definition of “originality”, and understand that what’s original about a work of fiction is not the story itself, but the writer who is telling it.
    Unfortunately, the byzantine world of publishing law makes such a concept untenable, if not ultimately impossible, these days. Too many people (other than the author) stand to lose too much money, and too many others too much potential money (read: suit-happy lawyers), for us to be more reasonable about the subject. But the fact remains: if you put a story out there, others are going to pick it up. Maybe they’ll just read it, maybe they’ll pass it around, maybe they’ll pick up a pen (or keyboard) and continue it. Either way, if you get apoplectic about it, nothing’s gonna be hurt but your blood pressure. So calm down.
    Oh, and Jocelyn is right about fanfic writers – the proportion of them who want to squeeze money out of “real” writers is microscopic. That’s why it’s called FAN fiction. They’re FANS of the books and authors they write on. FANS, as in love and admire. So your assumption that they’re “self-entitled creeps” is way off the mark here. Unless of course you’d rather have fewer people reading your books, which you would if all those “creeps” decided your attitude put them off. The smart writers (and publishers) are the ones who realize that fanfic can ENHANCE an author’s popularity, by turning readers on to someone they haven’t read before. You might want to think about that one a bit.

  • April

    April 28, 2005, am30 1:10 AM
    126

    Thank you, Storyteller.
    My God/dess, people, grow up. Fan fiction is, in general, a good thing. As mentioned before, it’s free advertising. There are a few books I was not particularly interested in until I encountered them on multi-fandom forums, and after listening to discussion and reading a few short fan-written fics, decided to go ahead and invest my seven dollars in the paperback. (Also has applied to movies.) There’s a little money that the author wouldn’t have gotten without fan work, and multiply that by a thousand.
    While a few authors have unfortunately been burned by fans turning ugly – let’s face it, every basket has a few bad apples – most of the loud complainers are the ones who are worried, legitimately, that a large number of their fans might be doing better work than they are. That is going to cut into your earnings a lot more than a few Internet stories will, because if I hear that a particular author is being wanky and paranoid about her/his precious words, I’m a LOT less likely to want to read any of it, and if I do, I’ll be borrowing the book or movie from our public library. That way, my money isn’t funding more rants against writers just as good but less able to pay an agent and get “legitimized”.
    Also, did you ever hear that imitation is the sincerest form of flattery?
    I’m considering self-publishing on principle. It might make less money than traditional publishing, and a handful of snobs will look down on it, but that’s not the point. Writing is a form of art, and I take pride in my work, but nothing is completely original. I write fiction based on mythology, which is exactly like writing fan fiction except that the legalese is even more in a myth fic-writer’s favor than for one of standard fanfic. (I doubt people who have been dead for 2,500 years are going to complain about copyright.) Originality is in how you arrange characters and events, and in your style of writing, far less than the basic storyline. Another writer using your work as a base will have a different style and a different view. As long as you get properly credited, why be so overprotective? (And for the record, if an author I liked used ended up borrowing ideas of mine, I wouldn’t sue. I’d feel flattered and probably call my mother.)
    Congratulation$, you’ve turned your art into a commercial venture, and managed to alienate a good chunk of your potential audience by putting them down. Here’$ a green ribbon that you can wear with pride when you go to $ee your friend$ and talk about how evil unpubli$hed writer$, fan fiction writer$, journali$t$, etc. are.
    All in all – if you were such a great writer that the lowly peasants of fanfic couldn’t compare, then you’d have nothing to worry about. And if not, then you have bigger problems than the fact that someone, somewhere, might be writing a drabble in honor of one of your characters.

  • MoneyMike

    April 28, 2005, am30 3:06 AM
    127

    April you really should self publish, your vast understanding of publishing proves that [I like that bit about not being able to afford an agent especially.you know the ins and outs, sweetheart]. And may your characters all become ass licking pedophile trekkies in fan fiction that you will admire as true art, but starring Thor and shit. Don’t you see people think you people are clowns? Maybe after you turn 14 it will be clearer. This article isn’t even about fan fiction.

  • emie554

    April 28, 2005, am30 4:42 AM
    128

    I am going to share a few thoughts here. I can understand how an author might not want their original work to be the subject of fan fiction. Usually all you have to do is let people know that, for example Fanfiction.net, one of the largest fanfic sites states:
    in the site guidelines that some authors have expressed a desire for their work to not be used in fan fiction, and the site has a policy of not allowing the submission of worked based on their published material. These authors include Anne Rice, Anne McCaffrey, Raymond Feist, Robin McKinley, Laurell K. Hamilton, Nora Roberts/J.D. Robb, Irene Radford, P.N. Elrod and Terry Goodkind
    If you are have a large enough fan base that you are worried about fan fiction, like I said just let people know. You too can have your name added to that list.
    Many authors such as:
    Tamora Pierce encourages her young fans to write anything in order to help themselves grow as writers (Pierce). Kristen Randle allows fan fiction to be derived from her work so long as it does not go against her own moral views and is not out of step with the characters (Randle ). Terry Pratchett prefers fan fiction not be written from his work but tolerates it in order to foster a sense of unity within the Discworld fandom (Disc World Monthly). Piers Anthony allows fan fiction so long it is not sold at a profit (Anthony). Lois McMaster Bujold allows fan fiction to be written by her fans but does not read it (Bernardi par. 2). Anne McCaffrey allows her fans to write fan fiction on the condition it is not archived on the Internet and follows guidelines she has established (Gaskill ).
    I could list others who have not even been touched upon here. Most people write fan fiction BECAUSE we are fans, not because we want to offend our favorite authors.

  • Katarina

    April 28, 2005, am30 4:48 AM
    129

    Oky, so nobody has replied directly to me and I’m probably an idiot for butting in again and giving myself unnecessary stress… but still…
    I think one of the main issues is whether or not one believes in auteur theory. Personally, I don’t. Copyright as it stands is tightly connected to the 19th century idea of the author as an inspired genius forming his story from his own mind, and that’s just not something I believe in. (Not saying that I think all forms of copyright should be abandoned, mind you.) I see art as a cannibalistic endeavour, where everyone uses ideas, plotlines, characters, or styles first used by someone else – to Shakespeare, the idea that he couldn’t use anyone else’s characters would have been as ludicruous as if a modern-day poet had claimed that he “invented” a certain form of meter and that no one else was allowed to use it.
    Now, since I look at things from this perspective, I see fanfiction as positive (people doing creative things) and also honest: these people do not try to claim that they have invented everything, and often have precise disclaimers stating what is and isn’t their own stuff.
    I can understand that if one does believe in auteur theory, thus dividing the world into “real” artists and epigons, fanfiction is a horror. The best I can give for comfort is that most fanfiction is either written about collective media like comics and TV where writing other people’s characters is the norm (take Superman, for example), or based on books and films that are themselves highly intertextual. George Lucas took from Kurosawa and Tolkien. Tolkien took from myth. JK Rowling took from Enid Blyton, Diana Wynne Jones and pretty much everyone else. Diana Wynne Jones took from Romeo and Juliet and Nordic myths. Neil Gaiman took from every sort of myth, Snow White, Milton, Lewis Carrol and others. Terry Pratchett took (and keeps taking) from everyone he could get his hands on. And so on. It is in other words utterly unlikely that people claiming that they invented the whole thing “and it isn’t FAIR” will be subjected to fanfiction.
    Of course, occasionally one runs into an author who borrows heavily and still dislikes fanfiction, such as Robin McKinley. This strikes me as incredibly hypocritical. Her main sales-pitch is that she remakes fairy tales – but no one is allowed to remake her version? Yeah, that makes sense.
    But that’s usually an aberration. As for the auteur believers – well, I accept your existance, but I do believe you’re missing out on the lovely, cannibalistic, intertextual form of communication that is premodern/postmodern art.

  • telegram sam

    April 28, 2005, am30 5:56 AM
    130

    Fanfiction writers have never killed anybody, starved any children, overthrown any governments or made anyone late for dinner through their activities.
    It certainly has never hurt an author or publisher, not even you, beyond the damage you inflict on yourself with your childish worrying and whining. I don’t care how much screaming you do about it, you have not lost your livelyhood on it and you’re not going to go bankrupt and end up living on skid row because somebody wrote a story about your characters.
    The vast majority of fanfic writers (myself included) do this for shits and giggles and little else. It’s an idle hobby meant for our own amusement. The stories are thrown around on the ‘net for the amusement of other fans at no cost. I can’t say anything about fic published in fan’zines because I’ve never bought a ‘zine and have no desire to. The internet stuff, however, is completely harmless.
    You were that kid in preschool who hoarded all the toys in a corner and sat on them and screeched if any other child tried to touch them, aren’t you?

  • Sara

    April 28, 2005, am30 8:12 AM
    131

    I said this on my journal, and I’ll say it here: if you have a problem with (the vast majority of) fanfiction, then you don’t understand what it’s really all about. Here’s the relevant paragraph:
    “Fans are people for whom the source material has special meaning. Something in it has spoken to them. They don’t just want to experience it and walk away, they want to interact with it. They do so by making websites, and drawing fanart, and writing fanfic, and cosplay, and other creative endeavors. It’s a *good* thing, a *compliment.* It’s not taking anything from you; it’s the type of reaction you *want* people to have.”
    Fanfic writers aren’t thieves, and they’re not trying to take anything away from the source material. They’re expressing their love for it. It’s the equivalent of calling “encore” at a live performance. And, if by some decree, fanfic disappeared tomorrow, I suspect you (meaning Lee and co.) would find interest in your work diminished because of it. That’s not a threat of any kind, it’s a simple fact. Those who go on and on about “It’s my work, I own it, keep your filthy mitts off” may be in the right legally, but they may also find the general fan reaction is “fine, you can have it.” Being a great writer in total control of your material doesn’t do much good if you’re turning off the very people who would read/watch it.

  • April

    April 28, 2005, am30 8:25 AM
    132

    MoneyMike, it is fairly difficult for a previously unpublished author to get a novel published without an agent or doing it oneself. That was the point I was trying to make. I never said having an agent was a guarantee of anything.
    Relatively few fandoms have large volumes of fan work made in them, and the stories that do are enormously popular themselves, so either way, I don’t see how it can be an important issue.
    I turned 14 in 19*4. I hope your 14th birthday will be as enjoyable as mine was. I’ve also never been a clown, despite the fact that I’m posting in a thread that seems to have a lot of them.

  • MM

    April 28, 2005, am30 8:39 AM
    133

    Once upon a time, people sat around fires, and the storyteller in the group would spin a yarn about how Coyote lost his man-bits. And everyone laughed, because everyone knew who Coyote was, and there was no need to set up tone/setting/ etc. because when Raven showed up, everyone knew who he was too, and everyone knew the river, or a river, and the story was good. No one said “You didn’t create Coyote or Raven!” Everyone knew it was all about the story and the joy of telling.
    Once upon a time, men told stories of Everyman and characters named Gluttony, and no one said “You’re stealing that setting!”
    Once upon a time, playwrights took characters from Ovid and from English history and from their fellow playwrights, and no one said, “But Marlowe wrote about these same characters last season!” (Except, perhaps, for Marlowe and Marlowe’s fans, and later English majors who needed a dissertation topic.)
    Once upon a time, someone said, “If we copyright the characters/situations, we’ll Make Money.” Indeed, once there was Money To Be Had, writers lined up to make it, and some were great storytellers and playwrights and some were hacks. But because they were Published, they were also Legitimate, and they could sit back and snark about the people who still liked the campfire circles. They sent out lawyers with Cease and Desist letters, and sat together in their own circles. Some said, “If it is not Making Money, it must be dreck,” and some said, “I heard a campfire tale once that was dreck ergo it must all be dreck,” and a few said, “Some of it’s actually pretty good. I heard this one about John Smith’s man-bits … ” And some people moved from the campfires to the circles of them who were Making Money, and noticed that the big difference between telling a story about Coyote and a story about John Smith the down on his luck detective in LA is that the names changed.
    And then there was the Internet.
    And now there are so many campfires that the sky is lit at night across the plains, and people tell stories about Coyote, and they tell stories about how Superman found Kryptonite in his boxers, and everyone laughs and no one needs complicated setups to get the joke because everyone knows who Batman is, too. A few even know who John Smith is, and then his man-bits become the topic of the story. Some people who Make Money stomp out campfires, and some ignore them, and some sit down and join in the telling. Indeed some of it is dreck, and some of it is better than the stories being told by those who are Making Money, and much of it is still about man-bits because stories about man-bits never go out of style.
    And it’s still all about the story and the joy of telling.

  • telegram sam

    April 28, 2005, am30 9:12 AM
    134

    “Fan fiction is a way of the culture repairing the damage done in a system where contemporary myths are owned by corporations, instead of owned by the folk.”
    —Henry Jenkins, director of media studies, MIT

  • Mark A. York

    April 28, 2005, am30 11:18 AM
    135

    Well that ignores the folk who created and sold them in the first place doesn’t it?

  • Holli

    April 28, 2005, am30 11:28 AM
    136

    But who created Coyote, Mark? And for that matter, do you think it’s Bob Kane whose opinions I should worry about when I write about Batman, or DC Comics?
    Actually, that reminds me– if the idea of other people playing in a creator’s sandbox appalls you, steer clear of comics. I mean, what if Siegel & Schuster would have been appalled with Jeph Loeb’s take on the character? Should Gail Simone have to worry about the people who created Black Canary or Barbara Gordon, or should she listen to editorial and do her job?
    It *is* a different legal situation, of course, because that’s entirely protected by copyright and always has been, but do you think it’s a moral equivalent? Is there an ethical difference between Geoff Johns writing an issue of Teen Titans, and me writing Teen Titans fanfic? Neither of us created *any* of those characters, or that world.
    For me, it’s more of an interesting intellectual exercise than an actual moral dilemma, but it seems that for some people it’s a lot more serious.

  • Mark A. York

    April 28, 2005, pm30 12:40 PM
    137

    I don’t know who the hell you’re talking about.

  • emie554

    April 28, 2005, pm30 1:48 PM
    138

    Looking at the world of fan fiction in many lights is not going to end the war on this thread, it has been pointed out that there are authors that prefer not to have fan fiction written about their works. We understand that, but truthfully how many authors really have to worry about this issue.
    Take for example my favorite mystery writer Jonathan Kellerman; totally love his work, would I write a fiction about his characters… No. Why? His world is not the escapism that writing about a Hogwarts adventure is.
    Really besides science fiction and fantasy, people don’t bother with it. And truthfully if JK came out tomorrow and said no fan fiction I would be greatly saddened, (never get to read the end of Jocelyn’s wonderful fan fiction story) but I would respect her wishes.
    I don’t think that you should get your knickers in a twist over a little playing around, see it for what it is a complement that you built a world so fantastic that we want to imagine more, play with it a bit.

  • Graham

    April 28, 2005, pm30 1:49 PM
    139

    I think that there’s not much of an ethical dilemma when many, if not most or even all, of the comic book creators had work-for-hire contracts. In other words, when they were hired they knew that they would be giving up their rights to their creations.
    I really have no problem with the ethics of subsequent additions and interpretations as long as the owners of the copyright agree to it. Some may be unnecessary (Rober B. Parker’s PERCHANCE TO DREAM, a sequel to Chandler’s THE BIG SLEEP), but I don’t think there’s an ethical dilemma.
    Let’s remember that this whole topic came up on Lee’s blog to begin with because hard-core Diagnosis Murder fans (not necessarily fanficcers) were unhappy with the direction his novels took. It didn’t fit in with their conception of Diagnosis Murder, and Lee quite rightly took umbrage at being told what he should and shouldn’t write.
    As for fanfic, I don’t really have a problem with it, but I think that the holder of the copyright should be able to tell his fans to knock it off.
    Graham Powell
    THE THREAD THAT WOULDN’T DIE!!!! -coming April 2005
    “150 posts of pure terror!” – MyBoogPages.com

  • P M Rommel

    April 28, 2005, pm30 2:02 PM
    140

    Graham wrote: As for fanfic, I don’t really have a problem with it, but I think that the holder of the copyright should be able to tell his fans to knock it off.
    He can. Any copyright owner can – fanfiction.net has a list of people who have asked them not to include fanficiton on their works in their archive. Most fan fic writers will do as they have been asked. A very few won’t, but you get idiots in every group of people.

  • Jocelyn

    April 28, 2005, pm30 2:20 PM
    141

    Let’s remember that this whole topic came up on Lee’s blog to begin with because hard-core Diagnosis Murder fans (not necessarily fanficcers) were unhappy with the direction his novels took. It didn’t fit in with their conception of Diagnosis Murder, and Lee quite rightly took umbrage at being told what he should and shouldn’t write.
    As for fanfic, I don’t really have a problem with it, but I think that the holder of the copyright should be able to tell his fans to knock it off.

    Oh, I agree that fans who start telling the author what to write are morons, but while the author has every right to TELL his fans to knock it off, whether he has the right to FORCE them is another issue.
    He’d do better just to ignore them.
    Or better yet, laugh at them. Life is a lot easier when you can laugh at stupid people instead of getting mad at them.

  • emie554

    April 28, 2005, pm30 2:37 PM
    142

    Let’s remember that this whole topic came up on Lee’s blog to begin with because hard-core Diagnosis Murder fans (not necessarily fanficcers) were unhappy with the direction his novels took. It didn’t fit in with their conception of Diagnosis Murder, and Lee quite rightly took umbrage at being told what he should and shouldn’t write.
    I agree whole heart that the author can tell their fans to go jump in the river, if they want to. But being a crazy (lol) fan myself, I think that might make me mad and I just might not buy the books anymore. Well that and broadcast my feelings on that known loudly.

  • amusedashell

    April 28, 2005, pm30 2:52 PM
    143

    “Let’s remember that this whole topic came up on Lee’s blog to begin with because hard-core Diagnosis Murder fans (not necessarily fanficcers) were unhappy with the direction his novels took. It didn’t fit in with their conception of Diagnosis Murder, and Lee quite rightly took umbrage at being told what he should and shouldn’t write.”
    Aaaah. *Now* we know what’s bugging this…author. Thanks!
    Hilarious thread. Only Jocelyn has any real idea of the law at all, it appears. Nearly everyone else: I’m insulted, and therefore, I am right!

  • Christine

    April 28, 2005, pm30 4:08 PM
    144

    What about people who write fanfic of authors whose copyright has expired? If it is ethically wrong (or simply uncreative) to use characters created by another author, regardless of the copyright status (which is not a problem in all countries), is every published non-Conan-Doyle Sherlock Holmes story the ethical equivalent of fanfic?

  • Mark A. York

    April 28, 2005, pm30 4:38 PM
    145

    And believe me we’re laughing at the lot of you.

  • Graham

    April 28, 2005, pm30 5:50 PM
    146

    This will be a longish post, so those bored with the subject may skip to the end where I commit ritual seppuku.
    I would respectfully disagree with amusedashell – I have quoted UCLA law professor Eugene Volokh, an authority on copyrights. Here’s the link again: http://volokh.com/archives/archive_2004_12_19-2004_12_25.shtml#1103746756
    Here’s the crux of his point:
    “The fan fiction would use enough of the Moorcock and Hamilton material — enough character attributes and allusions — to constitute “copying” for copyright purposes (even if the only things that they literally copy are the names).”
    With that in mind, I think that pretty much everyone agrees that fan fiction violates copyright. What fanficcers argue is that their stories fall under the fair use exception.
    Fair use, by law, covers the use of the original work in things like reviews, criticism, parodies, and teaching. One of these things is not like the others: all of them use the author’s original words except parody, which uses “character attributes and allusions”, slightly modified, to comment on the original work.
    Since fanfic falls into a legal gray area, we have to guess how judges might rule on it, and to do that, I’m going to look at parody, its closest analog in the law as written, and at one ruling in particular.
    The case I’m referring to concerned a story called “The Cat NOT In The Hat”, which used the style and creations of Dr. Seuss to comment on O. J. Simpson. In this case, the Ninth Circuit court held that this work was not a parody, because it did not comment on the original work.
    There are two points behind this: the first is that the law considers parody to really be a form of criticism. This decision means that it’s not legal to create a new derivative work to comment on an unrelated issue; fair use only allows a parody to comment on the original work itself.
    My other point is that the courts have very narrowly interpreted even the exceptions written into the law. In a case involving fanfic, it seems likely that they would err on the side of the copyright holder instead of carving out new fair use rights not explicitly mentioned.
    Now for the seppuku: you are all Nazis, especially you, Keith. According to Godwin’s Law I automatically lose this argument – but at least it’s over.

  • Beverly

    April 28, 2005, pm30 5:51 PM
    147

    I think it is very telling that the anti-fanfic people here brought up the idea that it is unethical to ignore the wishes of the creators of original fiction from which fanfic is derived but then completely ignored the people who question whether Wicked/Sherlock Holmes/etc are ethical or not.
    Bravo to Graham/Mark/Chuck/Claire/David/Keith for ignoring the other side and basically making yourselves look like uptight idiots worried about someone stealing something nobody wants.

  • Jocelyn

    April 28, 2005, pm30 6:07 PM
    148

    Beverly, I’d suggest leaving Graham out of that particular list. Out of all the debaters on both sides of this, he’s one of the few who hasn’t been reduced to flinging insults around, and he has brought actual evidence to back up his opinion.

  • Mark A. York

    April 28, 2005, pm30 8:19 PM
    149

    Yeah Graham that’s the post I quoted from.

  • RatWrangler

    April 28, 2005, pm30 10:01 PM
    150

    Claire:Print fanzines have been around for at least 30 years. I’ve been buying and reading them for at least 20 years. Yes, they cost money, but add up how much printing costs and mailing costs are, and you’ll see that no one is making a profit off them.
    If you look closely at most zine publishers websites, you’ll see that there is a price discount if you plan to pick them up in person at a convention rather than having them mailed. Why? Because they don’t have to pay for mailing them.
    Fandom has long been self-policing in regards to zines–printers have been raked over the coals for charging more than cost for their zines. And my guess is that if enough pressure comes to bear on internet fanfiction, we’ll see a return to the days of zine only publishing. And I for one wouldn’t mind it, because in most cases, zines have an editor, and the general quality of fic is much higher. Now before anyone on the fannish side gets offended, I’m not saying there aren’t really good fanworks on line, it’s just that the slush pile of absolute crap is much bigger since anyone can put what they want up there.

  • P M Rommel

    April 29, 2005, am30 3:15 AM
    151

    Claire: this weird need to clump on Mr. Goldberg’s blog whenever the topic comes up.
    As discussed just a few weeks ago, when people are attacked, they tend to defend themselves. It’s hardly unexpected. And I’m sure the denizens of fandom_wank and GAFF have this blog staked out: given Lee’s history of attacking fandom and fanfiction writers it’s hardly surprising – if there’s a wasp in the room, one would want to know where it is. Once, he attacked them in their own space, though to do him justice he did apologise.
    Claire again: operative word is STEAL, here.
    No, it’s not. The operative words are ‘copyright infringement’ and that case has yet to be proven. I spent a good deal of time last October explaining to David Montgomery and others that copyright infringement is to theft what ‘taking and driving a car without the consent of the owner’ is to robbery. They are different legal concepts, and you do not help your case by confusing them.
    David Montgomery said: If you take another writer’s character, or the original world they’ve created, and use them in your own story that’s taking. And that’s unethical to do unless the creator gives you permission.
    So, it’s just as unethical to take Homer’s characters as it is to take J K Rowling’s? Isn’t that where we started out just a few weeks ago? I’m glad to see you’re finally coming round to my view: that there is no ethical difference (though there is a legal difference) between borrowing from Homer and borrowing from Rowling.
    All writers borrow to a greater or lesser extent, but I’ve yet to see any of the anti-fanfiction group address that point seriously, other than to imply that legal and moral are the same, a point which I would dispute. I mean, just look at the number of fantasy writers who dress up poor old Mallory (Arthurian legend, if the reference isn’t immediately obvious) in questionable new clothes and serve it to the reading public as ‘original fiction’.
    Zvi wrote: of what’s happening in our discussion is that you anti-fanfiction people are assuming that pro-fanfiction people should fall into line with your moral premise that authors are special, privileged people working in creative isolation to produce heartbreaking works of staggeringly original genius.
    I think it’s worse than that. From my reading of the discussion, not only does the underlying belief appear to be that the works are of staggering genius (no matter how derivative they may be) but (1) that the creators should not have to and do not have to interact with the readers/consumers and (2) that they can in some way dictate how their products are perceived or used. If that is their claim (and I look forward to seeing something sensible to refute it) I do not think that it is justifiable.
    Where Sara quotes herself, “Fans are people for whom the source material has special meaning. Something in it has spoken to them. They don’t just want to experience it and walk away, they want to interact with it.” she’s on to something. Except that people like Lee, Mark, Claire and David seem to find this interaction threatening, and seek to belittle fans and fannish endeavour and from a standpoint, largely, of ignorance.
    I remember last October, during the original discussion I took part in with Lee around fanfiction, he mentioned that he owned Textual Poachers: Television Fans and Participatory Culture (Studies in Culture & Communication) by Henry Jenkins. If he does own it, he showed precious little sign of having read or understood it, and my feeling is that some of the other participants in this debate haven’t even heard of it.
    Ratwrangler wrote: my guess is that if enough pressure comes to bear on internet fanfiction, we’ll see a return to the days of zine only publishing.
    That’s already happened in at least one fandom that I’m familiar with – I won’t mention any names but it was a WW2 based show. A C&D letter to the website owner and ISP took the fanfiction off the net – and put paid to any conventions and thus any useful payments to anyone involved with the show – but hasn’t killed it by any manner of means. It also put paid to any revival/repeat showing of the show (and thus any new writers fees or repeat fees) which was a pity as quite a head of steam had been building up.

  • Graham

    April 29, 2005, am30 6:44 AM
    152

    Let’s take a hypothetical here – and I’m going to pick on a dead guy, since he’s not around to defend himself. Let’s say Isaac Asimov has a web site. He becomes a huge fan of “Star Trek: Enterprise”, and starts posting well-written, entertaining stories about Archer and the crew on his web site, charging nothing of course. Fans flock to his site, he gets tons of attention, etc. etc.
    Does anyone think that the creators of the show wouldn’t have a copyright infringement case? Although Asimov hasn’t made any money, he certainly has gained something from these stories. The differences between this and amateur fanfic are strictly matters of degree.
    Now I’d like to respond to a couple of points Rommel raised above.
    1) “I spent a good deal of time last October explaining to David Montgomery and others that copyright infringement is to theft what ‘taking and driving a car without the consent of the owner’ is to robbery.” Unauthorized use of a motor vehicle is still a crime.
    2) “The operative words are ‘copyright infringement’ and that case has yet to be proven.” Just because there is no settled case law doesn’t mean it’s not illegal. Courts have interpreted the explicit fair-use exemptions very narrowly – why would they be eager to add new exemptions?
    3) “A C&D letter to the website owner and ISP took the fanfiction off the net…” Corporate bullying aside, why would they fold so quickly if fanfic was on firm legal grounds?
    Now I haven’t addressed the ethical issues because I think they’re less clear-cut than the legal issues, but generally, in my opinion, if a copyright owner says no to fanfic, fans should respect his wishes. Would he be damaging the value of his work by pissing off his fans? Yes! But that should be his right.

  • MM

    April 29, 2005, am30 7:57 AM
    153

    if a copyright owner says no to fanfic, fans should respect his wishes.
    As far as I can tell, no one is disagreeing with you on this. Authors who have specifically requested that no fanfic be written about their books/characters generally finds that indeed, no fanfic is written save by people who haven’t seen/heard the ban.
    However, the vast majority of writers, and for that matter producers, directors and other creative folks, haven’t said a word either way. Many who have mentioned it find it flattering and turn a blind eye because they know it’s getting more people to talk about their product. (Back to the “free advertising” discussion.)
    Let’s take another example, because the “car thief” example doesn’t work.
    Vincent van Gogh painted “The Starry Night.” I like “The Starry Night.” I write a song about “The Starry Night.” I have made filk (look it up) about “The Starry Night.” Am I infringing on the intellectual property of van Gogh and his heirs or am I a 70’s folk singer?
    I like marshmallows. For fun, I paint a version of “The Starry Night” with marshmallows, and I show it to my friends and neighbors. I scan it in and put it up on my website, me.com. Am I infringing? What about if I publish it to a larger website such as fanart.com?
    I write a story set in Victorian London, starring a detective with remarkable powers of deduction and his devoted but slightly clueless doctor friend who records his adventures. I name them John Smith and Dr. Bob Jones. I make references to the “Blond-Headed League” and Smith’s archnemesis Professor Green. Random House gives me an advance for my next several stories. Am I infringing? What about if I only post my stories starring Smith to my website?
    What if I use the names Holmes and Watson instead? Random House won’t touch me, but what about my website? Am I infringing if I only have things up at me.com? Does it become infringement when I put it up at fanfiction.net because of the wider distribution?
    My friend wrote the John Smith and Bob Jones story and got it published; I wrote the same story for Holmes and Watson and put it on the Internet. I am being honest about my source material, my friend just changed the names. Which of us is infringing?
    A friend of a friend got her “Xena” fanfic published by changing the names and altering the location. Two people I know got their fanfics (from a fandom you wouldn’t recognize) published by changing the names. Are they infringing on the original copyrights, or does it only count if they get caught? Does it change things to know that the creators of the properties involved tacitly approve of fanfic even if they can’t give an official nod?
    Fanfic doesn’t stop the source material from being produced. If it did, the Trek franchise would have ground to a halt decades ago. Fanfic *can* affect sales, I’ll grant. Again speaking of the Trek franchise, the officially-sanctioned novels suck and have ever since Pocket instituted The Rules (i.e. no romances between canon characters, no relatives, no continuity between novels). If Trek fans prefer to read about romances between characters or about characters’ relatives or anything else forbidden by the ban, naturally they’re going to try to find material (in this case fanfiction) that gives them what they want. Likewise, if a published author has a successful series and then starts taking the characters in a direction that the fans don’t like / are bored by, sales are going to drop and the drop will be accelerated by having well-written fanfic available that does make the readers happy. If the book-buying readership is unhappy with the direction the writing is taking, do you blame the availability of fanfic, or do you blame the original author for stagnating? If there is no fanfic, but there’s a new book series available that’s better-written (and based off the same series of Arthurian myths or Tolkien ripoff), and sales of the original drop off, do you blame the new series for stealing readers?
    Fanfic fills a need in readers. We want stories where our favorite characters continue their adventures after we’ve closed the book or turned off the television. If more people want to read Star Wars fanfic than go see “Revenge of the Sith,” is it the fault of the fanfic writers, or do you say maybe George Lucas should actually give his fans good stories instead of special effects?
    You can talk copyright infringement until you’re blue in the face. People have always told each other stories, and will always continue to tell each other stories. If the stories we’re telling each other aren’t as good as the source, we’ll always go back to the source. If they’re better, regardless of if they are fanfic or original fiction, the source needs to think about why no one comes to play anymore.

  • RatWrangler

    April 29, 2005, am30 8:47 AM
    154

    PMRommel: Yup, was there for that one, know it well.
    Graham: The reason fans don’t pursue stuff like that is mostly because we don’t have the money. The great majority of fen are middle-class folks and college students. We don’t have unlimited $$$ hanging around to pursue a lawsuit, even if we won the legal fees would be enormous. Which, on the flip side, is why studios rarely go beyond a C+D letter. They do a bit of looking around and discover that no one is making any money off this hobby, so there’s nothing for them to appropriate.

  • P M Rommel

    April 29, 2005, pm30 1:54 PM
    155

    Graham: 1) “I spent a good deal of time last October explaining to David Montgomery and others that copyright infringement is to theft what ‘taking and driving a car without the consent of the owner’ is to robbery.” Unauthorized use of a motor vehicle is still a crime.
    I never said it wasn’t. My point is that they are not the same type of thing: taking and driving away a motor vehicle is a crime. Copyright infringement, certainly where I live and I think in the US as well, is (usually) a civil offence.
    3) “A C&D letter to the website owner and ISP took the fanfiction off the net…” Corporate bullying aside, why would they fold so quickly if fanfic was on firm legal grounds?
    In this particular case there was a good deal going on behind the scenes the copyright owner has no knowledge of – but as I’ve explained several times, as has Jocelyn, legal issues aside, normally if a copyright owner makes their objection to fanfiction known widely enough, the fans will respond by removing their fiction at least from where it can be found easily and possibly cause offence.
    Now I haven’t addressed the ethical issues because I think they’re less clear-cut than the legal issues, but generally, in my opinion, if a copyright owner says no to fanfic, fans should respect his wishes.
    The thing is, Graham, this does not help move the debate along. Most (all?) of the fans in this discussion have said, some of them more than once, that if the copyright owner asks, most fanfiction covered by that copyright will come off the net, and many (I would say most) writers will honour that request. Nobody is disagreeing with you on this point.
    The remaining issue we are debating, the one we are interested in, is the one you have failed to address.

  • alisonkent.com

    April 29, 2005, pm30 9:29 PM
    156

    Genre Fiction

    There are two award winning romance authors who, imo, are also two of the best writing teachers around. Much in the way Chris Vogler’s The Writer’s Journey can be applied to strengthen a book in any genre, so can the generous lessons these two autho…

  • Beverly

    April 29, 2005, pm30 10:50 PM
    157

    Everyone here should read the discussion going on here. A linked but totally different discussion of intellectual property.

  • Herongale

    May 1, 2005, pm31 7:30 PM
    158

    Facts are the enemy of truth.
    Cervantes, Don Quixote
    The fact of the matter is that in the current legal milieu, fanfiction is indeed a dicey proposition, and for those who publish online without explicit consent of the author, the current guidelines (although unclear) are supportive of the writer’s copyright over any concept of implied creative license for fanfiction. A lot of fanfic writers ignore this.
    It’s a shame, though.
    Too many writers treat their work as a mere commercial prospect, and their voice as that of a person speaking from a high pedestal. There is no sense of collegiate interactivity, nor is there any sense of true discourse, with this approach.
    Nor, will I add, is there any appropriate sense of history… the supposedly ironclad laws of international copyright have no true universal support. Throughout the ages creators of epics and plays, novels and poetry, have riffed shamelessly off of each other, from borrowing words to character concepts to whole plots. And what was the result? Was it poverty of thought and repression of enterprise?
    Of course not.
    I am sick of modern day authors (such as this Keith person here, whose work I am blissfully unfamiliar with) who think they are the shit because they make money off of stories they write, and that their ideas are inviolate because of it. These kind of authors forget, with great hypocrisy, the fact that most of their own works involve theft of the most basic kind. I don’t need to read Keith’s novels to guess that probably some of his characters and settings were inspired by people and places he knew, and the rest were modifications of things he’s heard about or read about through his lifetime.
    Every writer alive owes a great debt to those who have come before, and every writer in existence has been influenced by his admiration of those he considers great. This is a truth that supercedes fact.
    Courtesy towards authors, living and dead, should include attribution for ideas, but not avoidance of using or elaborating on them. Or is the realm of literature to always remain inferior to that of other intellectual pursuits (such as mathematics or the science, history or art), where the pursuit of excellence is seen as a common goal, with ideas and truth to be shared by all?

  • frakman

    May 1, 2005, pm31 7:44 PM
    159

    Spoken like a geek without a single creative thought of his own who couldn’t sell his writing if his life depended on it. Your resentment towards people more creative and successful than you is obvious. You suck as a writer and hate other writers for it. Boo-hoo. Grow up. Come back when you get your driver’s license.

  • Mark A. York

    May 1, 2005, pm31 8:07 PM
    160

    “I don’t need to read Keith’s novels to guess that probably some of his characters and settings were inspired by people and places he knew, and the rest were modifications of things he’s heard about or read about through his lifetime.”
    I’ll go out on a limb to suggest they were real people and not some other writer’s creation. Can you say the same thing?

  • J.C.

    May 2, 2005, am31 11:33 AM
    161

    “Spoken like a geek without a single creative thought of his own who couldn’t sell his writing if his life depended on it.”
    Herongale seems to be a her, actually. That aside, what is sad is that she chooses to incoherently defend her right to produce poorly written pornography about Digimon cartoon characters by framing it as a slam against professional writers.

  • P M Rommel

    May 2, 2005, pm31 2:08 PM
    162

    JC: she chooses to incoherently
    Strange definition of ‘inchoherently’ they have in your world. I understood her perfectly.

  • Graham

    May 3, 2005, pm31 12:55 PM
    163

    “I am sick of modern day authors… who think they are the shit because they make money off of stories they write…”
    Money doesn’t have anything to do with it – you’re missing the point. If you write a wholly original but completely unsold novel, short story, or grocery list, you have the same rights as every published writer.

  • Mark A. York

    May 3, 2005, pm31 1:17 PM
    164

    And if you get involved in an infringement suit can copyright that manuscript foramlly. For these folks that would be a disaster since they have an illegitimate product.

  • emie554

    May 3, 2005, pm31 11:22 PM
    165

    “Money doesn’t have anything to do with it – you’re missing the point. If you write a wholly original but completely unsold novel, short story, or grocery list, you have the same rights as every published writer.”
    Not necessarily, say I write this wonderful original novel, don’t publish it for some reason. Is npt published, it then how would it be copyrighted? What if I accidentally lost it on a plane trip, someone found it and maybe changed a name or two and published it. No one would say, “Hey thats Emily’s story, you stole that.”
    Then what proof or recourse would I have, none really, its not the same thing.

  • David J. Montgomery

    May 4, 2005, am31 7:22 AM
    166

    Works are automatically copyrighted as soon as they’re written. They don’t need to be published. Things might be tough in the rest of the hypothetical situation you describe, but it all seems so unlikely. If you write something that’s good enough for someone else to publish, you should get it published yourself.

  • Mark A. York

    May 4, 2005, am31 8:46 AM
    167

    Only register an unpublished manuscript if you suspect infringement and want to go to court. I did that since it was taking so long to get my book published and I found potential infringement. The scavengers like Dorrance send you junk mail off the unpublished copyright list.

  • Theresa

    May 5, 2005, pm31 8:18 PM
    168

    Well, well, well. I must say that this is a very interesting discussion.
    First off, perhaps I should give my opinion. Me, I am simply a writer. I write anything from fanfiction, original fiction, children’s fiction, poetry, to even nonfiction. That’s what I do, I write. What does it matter that I write fanfiction? Should I stop writing fanfiction because it’s ‘unethical’ or ‘immoral’, or potentially ‘illegal’? Yes, I write fanfiction, post it on the internet, and I don’t care. Why should I stop writing fanfiction because other’s say that it’s immoral, or illegal? That may be true, but as I said, I don’t care. I will not try to justify my reasons for writing fanfiction. If the original creators say something, then I will gladly respect their wishes and stop posting it on the internet (which is not to say that I’ll stop writing it). Other then that, I will not change what I write.
    I may be young, I may not have anything ‘professionally’ published, but I still have the writer’s passion. Which is simply that; passion. I write whatever comes to mind, as does every writer. In many years to come, if I become a famous writer, I wouldn’t mind at all if someone wrote a fanfic about my creation. I think I may be honored. As for misusing characters/plots/settings, I have a very open mind. I would see them as how they were written, not which way they were written. However, that’s in the future, and it may never happen, no one’s really to tell. All I know, is that I will continue writing with all my heart.
    Oh, and another thing, as goes to what I was saying before. Fanfiction is only unethical and immoral if one believes it to be, as with anything else in this world. Personally, I believe that it’s not illegal. No matter what the original creator says, unless there’s a law that states that it’s a violation, then it’s not. In the US, we sometimes have a lose interpretation of the law, if it doesn’t say it, then it doesn’t apply. However, I’m not a law student, nor do I plan to be, so I only have a basic understanding of the law.
    Well, I need my sleep, so I guess I’ll cut this short.

  • Keith

    May 5, 2005, pm31 8:32 PM
    169

    I had no idea I was still so popular with the haterz.
    I am sick of modern day authors (such as this Keith person here, whose work I am blissfully unfamiliar with) who think they are the shit because they make money off of stories they write
    My fault–I didn’t make this clear.
    I think I’m the shit because I am the shit. Money’s got nothing to do with it.
    I don’t need to read Keith’s novels
    Oh, but you should.
    Because they’re the sha-zizzle.

  • Mark A. York

    May 6, 2005, am31 8:02 AM
    170

    Then put your “passion” into something you can sell. That should keep you too busy for diddling with others’ work.

  • Theresa

    May 7, 2005, pm31 2:48 PM
    171

    Oh?
    And what if I don’t wish to put my writings up for sale?

  • Theresa

    May 7, 2005, pm31 2:57 PM
    172

    I don’t wish to have a career in writing. It would be a nice dream and all, but not enough to make a living. I just write for the enjoyment, and the enjoyment of reading what others have to say about what I write. That’s why it doesn’t matter in what feild I write in.

  • Claire

    May 7, 2005, pm31 3:02 PM
    173

    Then don’t sell them, Theresa. It’s not required. If you like writing fanfiction, share it with your friends. It doesn’t have to go on the public internet. It can go in a private blog. Do you really not consider your content before you post something up?

  • Theresa

    May 7, 2005, pm31 3:59 PM
    174

    And why shouldn’t post it on the public Internet for others to enjoy? Yes, I do consider the content of what I post, and I find it entertaining, as do many others. At the risk of straying off topic here, not everything that is entertaining in this world tends to be ethical. So why should fanfiction be any different? There are worse things out there that are more unethical then fanfiction.

  • Theresa

    May 7, 2005, pm31 4:07 PM
    175

    Oh, and Keith, I would really like to read some of your works, you seem like an interesting author.
    Do you have a list and perhaps a place where I can find them?

  • claire

    May 7, 2005, pm31 4:20 PM
    176

    not everything that is entertaining in this world tends to be ethical. So why should fanfiction be any different?
    I can’t answer that, Theresa. I don’t think I need to.

  • wordsmith

    May 7, 2005, pm31 4:58 PM
    177

    Theresa, here is a word to look up: sophism. And thank you for bringing to light one of the very worst explanations of why fan fiction exists. Truly, more 15 year olds like yourself should attempt to defend fan fic. Theresa, you are an idiot, but one day you’ll be able to look back at this, where it will be saved for eternity on the internet, and laugh at your stupitiy.

  • Theresa

    May 7, 2005, pm31 5:11 PM
    178

    No, Claire, it’s not a question that needs to be answered, is it? It’s a question that needs to be asked. Fanfiction may be unethical, but to many it is entertaining. Not many people (including myself) care if fanfiction is unethical or not. They read fanfiction for the enjoyment factor. However, I can’t really speak for any one else but my self, can I?
    (How come I feel like I’m repeating my self?)

  • claire

    May 7, 2005, pm31 5:34 PM
    179

    Not many people (including myself) care if fanfiction is unethical or not. They read fanfiction for the enjoyment factor.
    Point taken. And one that bears repeating. Many times over and wherever you’d care to post it.

  • Theresa

    May 7, 2005, pm31 5:42 PM
    180

    wordsmith:Truly, more 15 year olds like yourself should attempt to defend fan fic.
    Why, pray tell, do you believe I am 15? Because I simply have a different view as you? Is it because I hold fanfiction in a more optimistic light then you? My explanations, as you call it, is my opinion of fanfiction, not my definition. I have no explanation, nor definition of fanfiction, because I believe that it doesn’t need one.
    I did say that I was young, yes, but 15 is a bit too young for me. I find that very insulting. How old are you? You could be 15 for all I know with that last comment.
    Theresa, you are an idiot, but one day you’ll be able to look back at this, where it will be saved for eternity on the Internet, and laugh at your stupitiy.
    I haven’t heard something like that sense I was in elementary school.
    Last I checked this was a discussion, not a place to insult and degrade other individuals.
    Perhaps we should get back to the discussion, and stop degrading people because of their views? Is that too much to ask for?

  • Mark A. York

    May 7, 2005, pm31 6:37 PM
    181

    Jane you ignorant…..

  • Keith

    May 7, 2005, pm31 11:10 PM
    182

    Is there a better reason for degrading people than their views?

  • Mark A. York

    May 8, 2005, am31 8:30 AM
    183

    It’s all about the views. Do they stand or fall on merit?

  • bryley_james

    May 8, 2005, pm31 7:43 PM
    184

    Fanfiction is writen by fans for fans its not ment in
    bad way the writers I read write online for free.And do
    it for the love of writing thats all.For me it a way writing down new look on how things should be the writer way of seeing it but others like to read it and reply.Well for me thats how it is a lot what ifs for the
    world to see writen those how love the most.

  • anonymous

    May 8, 2005, pm31 8:54 PM
    185

    Yep, read that post again, ladies and gentlemen. That’s who is writing fanfic and who is reading it. Enough said.

  • bryley

    May 8, 2005, pm31 10:05 PM
    186

    I’d say most of may work is and oc and not fanfiction
    still I love fanfic and always have I may not know the law but I what I like.And wordsmith I so love your work.

  • bryley

    May 8, 2005, pm31 10:17 PM
    187

    lol come on fanfic lovers if they don’t like fanfic we are not goning to win this fight and calling someone names won’t help any thing no matter who says it.

  • anonymous

    May 8, 2005, pm31 10:41 PM
    188

    Bryley, is English your second or third language?

  • bryley

    May 8, 2005, pm31 11:34 PM
    189

    Oh funny I’d say second and I’m a really bad speller
    thats way I a beta reader.I’m not fighting with you
    and anonymos thats so lame. Anonymus I’m bryley and I leave my name.

  • bryley

    May 8, 2005, pm31 11:43 PM
    190

    sorry that was i a have beta see add my bad english and and spelling to 20 hours of work and kids and I’m a all but dead.But I love fanfiction thats all good night and good bye.

  • P M Rommel

    May 9, 2005, am31 4:39 AM
    191

    wordsmith: Truly, more 15 year olds like yourself should attempt to defend fan fic.
    Theresa: Why, pray tell, do you believe I am 15?
    Theresa, it’s because they believe that everyone who writes fanfiction is 15, and though they have been told repeatedly that fanfiction writers are every age from 12 to 80, they would prefer to believe their comfortable lie than attempt to address an audience of adults.

  • Theresa

    May 9, 2005, pm31 7:40 PM
    192

    bryley: Fanfiction is writen by fans for fans its not ment in bad way the writers I read write online for free. And do it for the love of writing thats all. For me it a way writing down new look on how things should be the writer way of seeing it but others like to read it and reply. Well for me thats how it is a lot what ifs for the
    world to see writen those how love the most.

    Bryley, dear, I believe that you are my new best friend here. I whole-heartedly agree with you. And don’t worry about the spelling, I think you got your point across just fine. ;}
    P M Rommel: Theresa, it’s because they believe that everyone who writes fanfiction is 15, and though they have been told repeatedly that fanfiction writers are every age from 12 to 80, they would prefer to believe their comfortable lie than attempt to address an audience of adults.
    I couldn’t agree with you more. If they believe that only 15 year olds write fanfiction, then there must be some really good writers out there. No offence to anyone, but I know that when I was 15, I wasn’t as good with writing as I was now. That’s not to say that all 15 year old writers are bad, I’ve read many that were good. I’ve also read fanfiction from writers that were 50 or so, at least that’s what I know.

  • David J. Montgomery

    May 9, 2005, pm31 8:49 PM
    193

    For me, Bryley’s posts sum up the very essence of fan fiction and what it stands for. I am moved.
    “Fanfiction is writen by fans for fans its not ment in
    bad way the writers I read write online for free.”
    I think that says it all. Thank you.

  • Theresa

    May 10, 2005, pm31 1:34 PM
    194

    I no longer stand alone.

  • LithiumFlower

    June 1, 2005, pm30 2:07 PM
    195

    I am 27 and read and write fan fiction. Many of you seem to think that because a work is published it is the most perfect and incredible piece of work that could never ever be improved upon or expanded. I like to read and write fan fiction that explores gaps in time that are not covered in a work, or “what if” stories after a book/mopvie/show has ended and fan writers “continue” the story. Also, in some works I would have liked to have seen x,y,z happen but instead the author did a, b, c. With fan fiction, one can make their own “version”–it all has to do with being creative and imaginative. I’ve seen fan fiction more brilliantly done than maybe original published works that hav bored me to tears.

  • Keri

    October 30, 2013, pm31 2:17 PM
    196

    I saw this title and my first reaction was, “The Murder Of Roger Ackyroyd debate strikes again!” (I’d just been reading a mystery writing book covering this controversy)

    Apparently I was wrong, but now I’m curious. Lee, do you think Dame Agatha played fair with her villain or not?

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