Jocelyn's Other Desk

The writings of Jocelyn Smith, aspiring author, soon-to-be lawyer, once and future politician, all-around opinionated twentysomething.

My Photo
Location: Orlando, Florida, United States

I'm a lawyer in Florida, working on three novels, a screenplay, and half a dozen pieces of fanfiction at any given moment.

Wednesday, June 29, 2005

Culinary Fan Fiction...

Now this is just FUNNY!

I no longer participate in the spats on the Goldbergs' blog (my job alone is enough to give me an ulcer), but I still read what's going on.

The other day, Lee posted yet another announcement from a novelist "saying no to fanfiction." This time it was Megan Lindholm (who she is and what she writes, I haven't a clue.)

But this line in particular caught my eye...

On the notion that fanfiction is good "practice" for becoming a writer, she says, in part:

No. It isn’t. If this is true, then karaoke is the path to become a singer, coloring books produce great artists, and all great chefs have a shelf of cake mixes.

So last night I went out "happy-houring" at a lovely (and expensive) little bistro in the Orlando area, and decided I wanted some obnoxious dessert. There was hardly anyone there but the manager, on a rainy Tuesday evening, and I settled on a flourless chocolate torte.

Now, the thing was the richest, most obscene chocolate I've had in quite awhile, and anyone in my family will tell you I have the sweetest tooth on the East coast. The manager--a French gentleman who also happened to be the chef on duty that night--and I got to talking when he came by to see how I liked it.

(NOTE: I've transcribed and paraphrased the conversation as best I can remember it, and I think I got it mostly right.)


"How do you make a 'flourless torte'?" I asked him.

He explained, then said, "Does it taste like a brownie?"

I was a little afraid I'd insult him, but I said, "It does a little," and he laughed.

"Good, it is supposed to. Have you ever had a brownie that did not rise properly?"

A bit bewildered, I said yes, and then I realized--it DID kind of taste that way! The chef (name withheld) told me he always used to eat the undercooked parts of brownies from mixes because he liked it that way.

"When I learned to make gourmet desserts, I tried to make a chocolate taste that way. It is more dense, more rich, but it has a familiar taste. People like sophisticated and new things in a good meal, but they also like familiar tastes. Americans call it 'comfort food,' I think."

"Chocolate is comfort food," I said, (trying not to laugh, because by then I was remembering Lindholm's comment.) "So you based your recipe on a brownie mix?"

"Yes!" he teased me. "You are eating a very expensive, undercooked brownie!" (Definite implication that I was a sucker, but hey, I have a weakness for all things chocolate.)

He laughed, so I was able to at last, but he thought I was laughing at his joke--well, I was, but I was also laughing at the "brownie mix" comment.


There you have it, ladies and germs! Even a French chef whose menu has roasted duck and escargot and a whole bunch of things I can't even identify (let alone afford), based a recipe for a DAMN good dessert on good ol' brownie mix.

Why? Because people like "familiar tastes."

If that doesn't explain the motivation behind fanfic, I don't know what does.

The writer's imagination can enjoy both sophisticated new creations, and familiar, comfortable things. I love the new, uniqueness of a story that forms for the first time in my own mind, watching it come to life, watching the world build up into existence, watching the characters develop their personalities.

But I also love the familiarity of the worlds in my favorite books and movies, and letting my imagination take a little romp in them, and sharing those "familiar tastes" with other fans of those stories.

I hope one day that people will be interested in reading about the adventures of my Paulina, a teenager in circa 750 B.C. Italy. But until I've got her "just right," I know that my fandom readers enjoy reading my ideas for adventures for Harry Potter, that modern magical teen we all know and love.

There's no shame in enjoying "comfort food."

Monday, June 27, 2005

Deadlines and Deadlines...

This week is going to be aggravating.

I have an outline on a "supervised research project" on academic freedom due. (Or as we in law school sometimes call them, "keep Lexis in business" projects.)

I have three big memos due at the office--on three VERY different subjects.

I have about twenty days to get my HP fanfiction finished before Book 6 comes out. It's heading toward the climax of the tale, we're getting over 100 reviews per chapter (woohoo!), but my reader base will disappear off the face of the earth when the "real thing" arrives. Running out of time here!

I'm having muse attacks on a daily basis over my Roman novel. That thing is just screaming to be written. I'm also dying to get into the nitty-gritty on planning my sci-fi world. I want to start doing word counts on my books each day instead of only review counts for the fics.

I just discovered Forward Motion, and joined the community and assuming they don't kick me out as soon as they find out what I got up to over in the Goldberg debates, I think I could learn a lot from that group.

Life's busy. Dunno if I'll have time to post as many rants and ramblings on copyright and other fun stuff, but I'll do what I can.

Friday, June 24, 2005

Beware, Fanhaters, You're Impaling Yourselves On Your Own Sword!

You know what depresses me more than anything as the Great Fanfiction Battle rolls on?

(The people this is targeted to don't really care, but I'll say so anyway, just because it's an interesting observation.)

The fact that the "enemy," if you will, is encompassed of people who by all rights should be my idols.

Take Holly Lisle and F. O'Brien Andrew, for example: Frank writes sci-fi. I adore sci-fi. I got excited reading the synopses of his books on his websites. Holly's books aren't quite my genre of choice for reading, but her pages and pages of articles giving advice to writers is full of helpful insight.

There was one in particular that struck home with me: One Good Enemy

(Pardon me, Holly, for the reference to your article, but you will find that this is commentary, clearly encompassed by fair use, so if you don't like it my referring to it...sorry.)

Holly describes in the article how her now-ex-husband's remarks that "she'll never make it" (either in reference to her writing in particular or life in general) pushed her to a determination that drove her to succeed in becoming a full-time writer. It's a damn inspiring story. Seriously, Holly, I've read some statements by you that make me mad, and I've been obnoxious about you in return on Lee's blog, but you have a way of getting a writer fired up.

Just not in the way you probably thought THIS one would be.

I've been told I'm "not a real writer." Paul Guyot said I'll never succeed in publishing my original fiction as long as I keep writing fanfiction. I've been told I lack the creativity to write original fiction because I write fanfiction. That fanfiction PRECLUDES ability to be published.

Holly, you were right.

All of you who recognize the above paragraph as your words: I don't want to be your enemies. You are writers. I am a writer. We all do (contrary to Paul's statements) have the same writer's soul.

And I'll prove it to you.

I'm going to finish my novels. All three of them. The screenplay too. Maybe a few more novels or shorts out of the vague ideas fluttering in my head.

They'll be published. At least some of them.

And I will never hide that I am and always will be a fanwriter.

My imagination is too active for me to ever be otherwise.

Intellectual Property and Eminent Domain

Once again, Claire's thrown down the gauntlet (nicely) over on her blog, so I shall give detail into my thoughts over here.

I ranted yesterday about the Supreme Court's eminent domain ruling, which expands the power of developers to condemn the private property of citizens for the "public good" and essentially force them to sell their homes or business or other property if the local government orders it.

Claire asked, essentially, "How is that different from the fair use argument you keep making about fanfiction?"

Well, I'll tell you: eminent domain has to do with real property. Copyright has to do with intellectual property.

And yes, there is a BIG difference.

For one thing, the most obvious difference is just how it sounds: real property is real--ie, tangible. Intellectual property is not.

For example, let's look at the case the Supreme Court just decided: the government wanted to build a waterside marina/resort of some type (or rather, the developers wanted to do it with the blessing of the local government) but they needed to use some land along the water. There were houses and businesses already there--so the land couldn't be used unless the houses went away. The property owners refused to sell, so the only option left under the law was for the government to condemn the properties and pay the owners the "fair market value"--then essentially (no, literally) evict them. From their own homes.

That's what happens when the government decides someone else can use your real property whether you agree or not.

Now, let's look at intellectual property: the courts and Congress have said that there are certain ways people can use your copyrighted work without paying you. A teacher can teach it, a library can lend it, critics can comment and criticize it, a comedian can parody it. But that doesn't mean your copyright stops. That doesn't mean that you LOSE your property. Your book still belongs to you. You still have the right to sell copies, sell movie rights or write and sell sequels, etc.

The difference between intellectual property and real property is the nature of the use. Only one person can use real property at a time. You can't build a house and a resort on the same exact piece of land. Land can't be reproduced exactly--it's a limited resource. So is a single car or a single house, etc. No one else can use a car while it's being used.

Intellectual property can be used in a variety of different ways by an almost-infinite number of people simultaneously. Leaving fanfiction out for the sake of argument, since we're not sure if it's fair use or not, let's do parody instead. I can write a parody of Joe Schmoe's book at the same time that Joe is writing his sequel. My use does not affect his use of what he owns. I don't have to burn his book to write my parody/commentary/whatnot (whereas I would have to bulldoze his house to build my marina on his waterfront property.)

Does that clear things up a bit?

(And yes, that is why I think fanfiction is logically included among the fair uses: so long as it is noncommercial, it cannot possibly impact the original author's ability to use and enjoy his copyright.)

Thursday, June 23, 2005

Defending Fanfiction (Again): Meriting A Post Of His Own

One F. O'Brien Andrew appears to have a few bones to pick with my hobby:

If you aren't creative enough to make your own world, you can always write fanfic.
If you aren't intuitive enough to make your own characters, you can always write fanfic.
If you aren't good enough to devise your own backgrounds, you can always write fanfic.
But you can't be an artist when all you do is photocopy other people's work.
You can't be published if what you wrote is hung on other people's creations.
And you should be ashamed to even try.

True, Frank, (mind if I call you Frank?) all true. If you lack some aspect of creative ability that prevents you from taking that plunge into "creating from scratch" (or as scratch as original writing gets, these days), you can stick to fanfic if you wish.

But I double-dog-dare you to find a fanwriter who doesn't also write or plan to write original material.

You see, Frank, it's like this:
  • Many people are creative enough to make their own worlds. I'm in the outline stages of a sci-fi novel, the first draft of a historical fiction with rather limited research sources, and the outline stage of a Biblical fiction set in modern America.
But those same people may also write fanfic...because it's fun. And because they enjoy and are inspired by another fictional world enough to take a little creative romp in it.
  • Many people are intuitive enough to make their own characters. I've made Paulina the king's scholar's daughter, Aiden the cynical detective, and Dan, the enterprising and adventurous columnist in a future where men are scarce.
But those same people may also write fanfic...because it's fun. And because they enjoy and connect with their favorite characters enough to want to hop inside their heads.
  • Many people are good enough to devise their own backgrounds. I've devised a future where life and death in space colonization hinges on the economics of sponsoring businesses, an Italian scholar who raised his daughters in his craft instead of finding a male student, and a 2000-year-old conspiracy among the Church leadership to conceal the importance of women (yes, I know that sounds familiar, but it's a different conspiracy.)

And those same people may also write fanfic...because it's fun. And because they enjoy other stories enough to want to explore "gaps" in the background or other possibilities.

  • You can't be an artist if all you do is photocopy other people's work. Quite true. Who the hell is claiming otherwise?

But many artists find inspiration for their work from other works. The story of The Wizard of Oz from the Wicked Witch's point of view is now a bestselling novel and an award-winning Broadway musical (with an absolutely-killer soundtrack that I listen to at least once a week.)

  • You can't be published if what you wrote is hung on other people's creations.

See my statement above. You can. And many people do. But I don't know anyone who ever tried to publish an unauthorized derivative work. (Well, a guy name Pickett tried, and failed, in a court case called Pickett v. Prince.)

My historical fiction and the character of Paulina comes straight out of Roman "histories" by Plutarch and Livy.

  • And you should be ashamed to even try.

Sorry, I'm not. I'm not ashamed of where my inspiration for my novels comes from, and I'm not ashamed to enjoy and connect with the works of others. I'm not ashamed to jot a few ideas of my own about those works and share them with other fans.

Deal with it.

Copyright and Free Speech, Part IV

To recap, ladies and germs, we have examined the basic goals and differences between free speech law and copyright law. We have consulted the great Nimmer on where free speech ends and copyright begins--or where copyright ends and free speech begins, and looked at some illustrative court cases.

Now, the fun part: applying the whole darn thing.

Free speech
We've already seen from the The Wind Done Gone case that the courts don't like any government action that restrains freedom of speech. Here are a few useful terms:
  • prior restraint: any government action intended to PREVENT speech or expression (ie, an injunction against publishing a book like The Wind Done Gone or printing something in the press like the Pentagon Papers. But this also includes passing a law that imposes any kind of criminal penalty for speech.)
  • idea-based or content-based regulation: any kind of government action that hinges on the idea or the message behind the speech.
  • content-neutral regulation: a government action affecting speech that is not concerned with the idea or message behind the speech.
  • discriminatory intent: just how it sounds--action meant to allow some speech and restrict other speech.
  • discriminatory effect: action that may not be intended to discriminate between certain types of speech, but has the effect anyway.
  • time/place/manner restriction: a government action that controls, but does not cut off, the ability to speak (ie, requiring a permit to hold a rally in the streets, passing a noise ordinance in neighborhoods, banning signs of a certain size in certain locations, etc.)
  • government interest: the reason behind the government action, the motive.
  • compelling government interest: a very serious or important reason for the government to take the action it's taking

Now, how does all that relate to copyright? The answer is this: when a person accused of copyright infringement raises a free speech/First Amendment defense, these are some things the courts may look at.

Example 1: In the The Wind Done Gone case, the appeals court decided that to prevent publication of the book was an unlawful prior restraint on Alice Randall's free speech. The private or government interest in allowing the owners of Gone With The Wind to sue is, of course, the reason behind copyright: to encourage creativity and expression and dissemination of ideas by granting the authors a monopoly in the rights to their work. But the court decided that the interest wasn't compelling enough to justify prevention of publishing ideas. The copyright owners could still sue for damages, or even impoundment and destruction of all the books after the fact once infringement had been established, but they couldn't stop the speech before they'd even proven their case.

Example 2: (This one straight from the blogs.) There's been a lot of discussion in the debates about fandom and copyright about pornography and obscenity based on authors' copyrighted works. We've gone through the legal definitions of obscene, broader definitions of obscene, etc, and the question has come up more than once:

If the author can't stop fansites that produce legally-obscene things based on her works, can she get them for copyright violation?

Good question. There's no concrete answer, but here are the issues:

  • Suppose the author takes a site owner who posts pornographic material based on her work to court for copyright infringement. The site owner claims free speech. The material on the website, while dirty or inappropriate, is not legally obscene, but the author wants the site shut down.
  • The court may consider the questions of 1) whether the author is specifically targeting this type of site while allowing other site because she doesn't like what this site says, 2) whether the author's copyright allows her to control activities like what is on this site (ie fanfiction, fanart, story/episode recaps, trivia, reviews, etc.), 3) what are the author's interests and how are they affected by the fansite, 4) what are the fan/public's interest and how would they be affected by stopping the fansite.
  • How will they rule? Hard to say. The more original material added to the site, the further it gets from the coverage of copyright. It could be straightup derivative work or it could be fair use.
  • If the material isn't legally obscene, is the author's distress reason enough under the law to stop the speech? Take Texas v. Johnson, the US Supreme Court case that held that a particulat type of speech could not be suppressed just because someone might be offended. On the other hand, permitting people to post dirty material relating to an author's work isn't exactly consistent with the purpose of motivating those authors to create.
  • Is there any sort of public benefit from allowing this type of website? Can the court consider the quality of the content at all, or is that a content-based discrimination?

As I've said, there is not concrete answer, and the balance will tip based on the facts.

Example 3: JK Rowling's name keeps coming up in the blog discussions, particularly the question of whether or not she "condones" or "approves" pornography based on Harry Potter. There are several cases of websites containing NC-17 rated fanfiction being sent "Cease-and-Desist" letters from Rowling's attorneys. The letters speak of the risks to children of finding such sites on a random search for Harry Potter-related material.

  • Obviously, this shifts the balance a little more when the interests of children get involved. But Rowling's agents didn't make their claim based on obscenity--they made it based on copyright.
  • Could this action survive a court case? See Example 2.

Example 4: Suppose cases like 2 and 3 come to Congress's attention, and they amend the copyright act to allow the copyright owner complete control and discretion over what kinds of fan activities to allow. (In other words, an author could go after fans or fanwriters for any idea on a website that he doesn't like.)

  • The law gets challenged as violating free speech. Will it succeed?
  • For one thing, it's straightup, government-sanctioned idea-based discrimination. But it's not the government acting directly, just private authors. Does this make a difference? And what about fair use? Does the new law allow authors to go after critics?

Example 4 would be the kind of situation that both fanwriters and authors would probably dread: a direct collision between copyright and free speech, with fandom in the center.

I'm aware that my answers in these examples are vague at best--but that's how law works. (And that's why so many lawyers get ulcers.) The answer, more often than not, is "maybe."


This is probably the last post for now, unless something else comes up related to these issues that seems worth posting, but I invite everyone to weigh in.

Wednesday, June 22, 2005

Copyright and Free Speech, Part III

Today, boys and girls, we shall, under the guidance of Nimmer, look at specific areas where the interests favoring free speech may trump the interests in copyright protection.

(Heh-heh, now we're getting into the good stuff!)

Your work is yours forever...or not.

Copyright, as we know by now, is the ownership of certain exclusive rights to a creative/original work. An author who publishes a book can own the copyright in that book for several decades, depending on when it was first published, and then he can continue to renew the copyright for a certain number of years.

Before the Copyright Act, an author could "claim protection in perpetuity," as Nimmer puts it--forever. Since the Copyright Act, that's no longer the case.

A person can own a piece of land, or a car, or a house forever and pass that property down to his children and grandchildren, but not the copyright to a book they wrote (or a piece of artwork they made, or a building they designed, etc.) Why is that?

The First Amendment. Nimmer explains that the public interest in encouraging creativity through guaranteeing copyright protection is strong for the author, and balances in copyright's favor against the free speech interests in allowing society to have free access and free use of the work. But when we pass from the author to the author's heirs, the balance changes--the heirs didn't write the book. The interest in encouraging creativity by letting the author's heirs keep the copyright is now less than the interest in allowing society free access and free use of the book--public domain.

But don't fret, authors: with the length of copyright, extensions for copyright, renewal of copyrights that are available, a book published today in 2005 might well not pass into the public domain for 100 years. You and your heirs will have plenty of time to reap the profits.

Idea, Expression, and the Public Interest...

Finding the difference between the ideas, which aren't copyrightable, and the expression, which is, is relatively easy for written works or even artwork. But what about photographs or publication of facts?

Nimmer gives two good examples: the photographs of the My Lai massacre in Vietnam, and the films of JFK's assassination.

There was copyright in both cases, vested in the photographer and the person who took the home movies of the assassination, but both times, the Court found that "no words describing the 'idea' of what happened could substitute for the image," and there was a public interest in "having the fullest information available." To allow the copyright holder in either case to prevent copies of those images from being made and distributed to the public, not to mention the investigating authorities, would have been intolerable.

Nimmer tentatively suggests that this special category may be limited to "news photographs" or other similar works of public interest and importance.

In the JFK home movie case, the Judge (with whom Nimmer disagrees) said that any competitive disadvantage of the defendant's use of the film was speculative, and that it would be more likely to enhance the value of the copyrighted work (the home movies of the assassination.)

Nimmer says this is like arguing that if a motion picture company takes someone's novel and uses it as the basis of the film, the novelist is not likely to be injured because the film is likely to enhance sale of the novel. (For a current events case-in-point, look up the play, Frank's Life and the movie, The Truman Show.)

Another case where Nimmer feels the balance may have been unjustifiably tipped in favor of speech rights was where Random House copied a series of articles on the life of Howard Hughes and published them in an unauthorized biography. Hughes's company, which owned the copyright and had a biography of its own, sued to stop them, but the court refused, citing the public interest in "being acquainted with the life of a person with...extraordinary talents..."

Although the facts of Hughes's life are "ideas" and uncopyrightable, Random House did more than that and copied the expression in which Hughes's company held copyright.

The First Amendment and Fair Use

Fair use and the free speech, although related, are not the same thing.

As one court put it, "The tension between the First Amendment and the copyright statute...does not exist...because the doctrine of fair use...has been precisely contoured by the courts to assure simultaneously the public's access to knowledge of general import and the right of an author to protect his intellectual creation..." (Quoted from Nimmer.)

While it isn't quite so simple as that in most other courts, it's a good point.

For example, as the Nation Magazine case showed, just because something is "newsworthy" or the magazine is in a hurry to put together a major story doesn't mean said magazine can go and copy 300 words of copyrighted text verbatim in lieu of writing their own treatment of the uncopyrighted facts.

Fair use is the doctrine of limiting the monopolies that copyrights bestow at the discretion of Congress and the courts. They could re-expand the monopolies if they chose, but not to the extent of colliding with the First Amendment.

View all the rights that surround a piece of intellectual work (a book or art etc), as a circle. There are two smaller circles within that circle, each inside the other, that represent different layers of rights.

The smallest circle encompasses all the copyrights that belong exclusively to the author. Any actions that fall within that circle, the author is free to permit or refuse.

Beyond the author's rights circle is the fair use circle, and other "exceptions" to copyright. Those are certain actions that Congress and the courts have decided, through laws and rulings, there is a public interest in permitting, like commentary about a work, a parody, criticism, educational and library distribution. Congress may be motivated by a free speech interest when it chooses to take an action out of the inside circle and put it in the second circle, but it's still acknowledged USE of the author's work, even if the author can't stop it.

Beyond the fair use circle is the First Amendment free speech. Here lie all the rights relating to ideas and messages that no act of Congress or an author can stop. This is where ideas themselves fall, or stories involving scenes a faire (plotlines, characters, or themes that are SIMILAR to another author's work--genre staples, if you will, like the suave international spy types or the little boy wizards in general).

Case in Point: The Wind Done Gone

Nimmer gives a good illustration of how these three circles coexist and how the courts distinguish between them with Suntrust Bank v. Houghton Mifflin Co., the case of Alice Randall's novel, The Wind Done Gone, a book undeniably based on Gone With The Wind, which relates the events in the literary classic through the eyes of a slave on Tara plantation--who happens to be Scarlett O'Hara's half-sister.

When the case began, the court issued an injunction preventing publication of The Wind Done Gone. But the appeals court vacated the injunction as "an unlawful prior restraint in violation of the First Amendment."

(A crash-course in First Amendment/free speech law: a "prior restraint," or any action by the government to PREVENT speech from taking place, is considered the most suspect of all, and is only allowed in the most pressing circumstances--and apparently, an approaching copyright violation is not one of them.)

When the court finally dealt with the book itself, they looked at it not in terms on free speech, but fair use, and through fair use, the court held that The Wind Done Gone was legal: a parody.

"Sews a new stitch of fabric to the intricate framework of [Scarlett O'Hara's] existing fictional personality" was the defense Randall had made of her book. (My amusement at the mixed metaphor aside, I haven't read the book, so I don't know whether it reads like a traditional parody or not, but the court thought so.)

With that, ladies and gentlemen, I come to the end of my lunch break, and also, this chapter. That's also the end, more or less, of Nimmer's treatment of copyright and free speech, so next time, I shall attempt to apply other sources of free speech law to copyright and see what comes out.

To be continued...

Tuesday, June 21, 2005

A Bit of Original Fiction...

I post below a quote from the historical fiction novel I'm working on. Just curious to see if anyone has any thoughts on it.

The setting: Italy, in the mountains to the northeast of Rome, during the very early rise of the Romans under Romulus.

The characters:
Paulina, our heroine, a scholar's young daughter celebrating her sixteenth birthday
Thyone, a priestess in Paulina's city
Caecilia, Paulina's younger sister


"Wisdom is not a thing to be found. It does not come upon a day announced, and you will not discover it by scouring the words of men in your father's scrolls. Remember that, daughter of Paulinus."

Before Paulina could manage a reply--or even determine whether or not she had been insulted--Thyone was gone.

Caecilia came up behind her then, peering over her shoulder. "What did she say?"

An unpleasant prickle went down Paulina's spine, making her shudder. "She says I am not wise."


Thoughts, anyone?

Copyright and Free Speech, Part II

Once again, Nimmer on Copyright is my principal source. Anybody who's interested in this stuff really should find their nearest law library and read this treatise. It's just so darn good.

And I am just such a darn geek.

Anyway, class, today, Nimmer and I are exploring the interests and purposes of copyright doctrine and free speech doctrine.

  • To grant to individual artists, authors, etc. a legal protection of their work.
  • To derive a public benefit from the creative activities of said authors/artists by allowing them a limited monopoly over the economic/personal benefit of their works.
  • A privacy interest/moral right, that authors/artists who create a work purely as a form of self-expression may intend a work for themselves alone or a limited group of viewers/readers--the right to "first publication" of the work.

Free Speech

  • A necessary component of a self-governing society
  • Free speech is a goal of itself because it is "the nature of man" to achieve fulfillment by the freedom to express his ideas/thoughts
  • There are hazards in discouraging hope, thought, imagination, and safety lies in the opportunity to discuss ideas and feelings (ie grievances with the government) freely.

Both free speech and copyright, in some form or another, tend to revolve around the promotion of a "marketplace of ideas," which involves an interest in putting as many ideas and expressions into the open for public viewing and discussion as possible for the general benefit and growth of society.

Copyright does this by giving authors/artists an "incentive" to create (by promising them the right to certain benefits of their work granted to them alone), and Free Speech does this by giving individuals the "freedom" to put out any idea/message they wish without fear of retaliation by the government.

"Idea" versus "Expression"

Copyright Law purports to protect only the "expression" of ideas, not the ideas themselves. Of course, this is easier said than explained. What's the difference?

As Professor Zechariah Chafee put it, "the line does lie somewhere between the author's idea and the precise form in which he wrote it down. I like to say that the protection covers the "pattern" of the work."

For example: a book is an expression. A book called Harry Potter about a little boy who discovers he's a wizard and goes off to wizard school and has to fight evil wizards while growing up is an expression of an author's ideas. Harry Potter books and movies can be copyrighted.

But that doesn't prevent another person from writing and publishing a book about a little boy wizard, or a little girl witch, or kids at magic school. There are lots of books for children out there about witches and wizards. So long as you do not too closely copy the previous author's "pattern" of expression (the precise forms, descriptions, names, unique aspects of the copyrighted work) you are free to use ideas.

The First Case: Harper & Row Publishers, Inc. v. Nation Enterprises (1985)

  • Nation Magazine reprinted, without authority, 300 words from the published and copyrighted memoirs of former President Gerald Ford. When the publisher of the memoirs sued them for infringement, they raised a First Amendment defense.
  • The Court agreed that the balance between the First Amendment and Copyright Law permits "free communication of facts while still protecting an author's expression."
  • But Nation had gone beyond that and copied 300 words in a direct quote from the copyrighted expression. (Ie, instead of saying "President Ford fell off the steps of Air Force One," they copied Ford's memoirs that said, "I was just waving to my adoring public and the next thing I knew, I was taking a header onto the runway!" [not a quote from the case.])
  • Result? Nation had infringed on the copyright.

To be continued...

Monday, June 20, 2005

Copyright And Free Speech, Part I

Ah, Nimmer, how do I love thee...

This is a very complicated issue, and there's no way I'll get it all together in one day, (at least not without winding up seriously short on billable hours at work) so I shall post it in installments as my research at work brings me to the issue.

A comment from Claire on a previous post made me decide to start posting this. Often in the debates we've been having, the questions of "free speech" and "free culture" have come up. So now, at least to begin with, I shall start to explore them.

An issue that's been touched on in previous debates but not expanded on nearly enough is how free speech relates and interacts with copyright law as a whole. Amid working on my lovely new assignment regarding copyrights, I have discovered in my favorite treatise an entire section that explains--or at least tries to make sense of--these often-contradictory principles...

"Congress shall make no law...abridging the freedom of speech, or of the press."

Well, as Nimmer notes, by that token, you couldn't punish perjury because it's speech. If you went absolutist with respect to the First Amendment, you COULD yell "fire" in a crowded theater, threaten to kill the president, or blackmail someone, because all those things are speech.

On the other hand, Supreme Court Justice Black was fond of saying "no law" means "no law," no ifs, ands, or buts. Black also said in Reid v. Covert (1957), "the United States is a creature of the Constitution...It can only act in accordance with all the limitations of the Constitution."

Meaning that any law which conflicts with the First Amendment (or any other part of the Constitution) must necessarily give way.

But what does this mean for Copyright? Is the whole statute invalid?

In a sense, anytime a Congressional or state law comes into direct conflict with the First Amendment, any part or all of that law which is in conflict becomes invalid.

So the question becomes: what parts of Copyright Law do or could conflict with the First Amendment?

To be continued...

Squeal! New Copyright Assignment!

The case on which I first investigated the kinds of damages a copyright plaintiff can claim is rolling along, and now I am investigating the definition of "author" for purposes of Copyright Law.

And I am very excited.

I am SUCH a geek.

Since I know those individuals with whom I am currently duking it out over whether copyright law includes fanfiction will be interested, I shall post any relevant findings.

(Heads off to dive into my beloved Nimmer.)

Sunday, June 19, 2005

Current Projects

Getting my frustrated self off frustrating topics, I shall now describe (for my own benefit as much as the few blog readers who are interested) my current writing projects.

  1. A historical fiction set during the legendary Romulus period of ancient Rome, telling the tale from the point of view of the denizens of the surrounding lands as this strange new city rises to power.
  2. A bit of Biblical fiction inspired by a literal-if-outlandish interpretation of a single Bible verse. My mother came up with the idea a long time ago, and it rekindled my interest as an adult. It's the reason I haven't read The Da Vinci Code or Perdue's Da Vinci Legacy or Daughter of God...because my tale also deals with the many incarnations of Mary Magdalene.
  3. A sci-fi novel where the idea came to me in a dream only a few months ago. I picture it as Lost meets Firefly meets Nell. I've had quite a few ideas hit me in dreams. This one scares me a little because it's the first time I've had to start quite literally from scratch (in any kind of non-scifi/fantasy genre, you have at least something to go on for your world) but I found that the world expanded very fast once the idea planted itself in my head.

Books # 2 and # 3 are still in the pre-writing stages, particularly 3, which is taking quite a bit of time to build the world the way I want it, while 2's main problem is all the Bible research required. # 1 is well under way, at last, after almost a year of hunting down every book about Rome that doesn't start post-Kings. (Rome did not HATCH out of the Palantine Hills, people, there was a kingdom before that Republic no matter how much Livy you believe!)


  1. A law school movie--set at Georgetown Law. This came up in a discussion during my 1L post-finals bash: why do all the law school movies have to be at Harvard? Is it some unspoken rule? Harvard is SO boring...and there you have it. Most of my law school friends and colleagues know that if you do anything memorable in front of me, odds are you're going to end up caricatured in one form or another in my screenplay.

This one is making good progress as well, although it probably will not be finished until I've finished with law school, since it'd be rather silly to write a whole law school movie without finishing law school myself!

Fan Fiction (oh, what the hell, why not?)

  1. Harry Potter and the Battle of Wills: a sixth-year Harry Potter fic that I'm co-authoring with my mother. It began as a lark last year, but now has become the most popular fanfiction I've ever written, and has a huge reader following, which is lots of fun. It's nearly done, and the first time I've ever worked with a deadline--namely July 16th, when the real book comes out!
  2. Pirates of the Caribbean: The Curse of the White Sword: My readers of this story are about to kill me because I put it on hold to write Battle of Wills with Mum. Hey, it's not every day your mother gets into your fanfic! But this, as you can guess, is a sequel to the last movie, and involves the legends of sunken ships, a whole fleet of shipwrecked and long-dead pirates, the return of Barbossa, a mysterious sword, and the very-real earthquake that destroyed Port Royal in 1692.
  3. Trumpet of the Swan: Although this has been one of my slowest projects, I'm very proud of it. It's based on Tolkien's The Silmarillion and The Unfinished Tales, namely the alternate history of Galadriel and Celeborn. In The Unfinished Tales, Tolkien was revising Celeborn's story to make him a Teleri prince, rather than a Sindarin in Middle Earth, whose romance with Galadriel began before the First Kinslaying. Trumpet tells that story that our beloved Professor never told, following the romance of the legendary elven couple through the Darkening of Valinor, The Kinslaying, and the flight of the Noldor.

So that's that. Really, just an accounting of what I'm working on, just for the hell of it. Not as exciting as the previous wank-fests, but hey, I figured I ought to get back to business sooner or later!

As for my reading list, I intend to get my paws on Wicked, one or all of Kate Rothwell's historical romances, a few narrative non-fictions like Caliban's Shore, and of course, Harry Potter and the Half-Blood Prince, in exactly twenty-five days.

Saturday, June 18, 2005

My Courage Screw To Bid You Adieu!

Some of you, anyway.

For the time being at least, I think I'm well done with the Lee Goldberg blog. I swear, the collective IQ of certain parties over there seems to drop the further into the debate we go, and even a patient lass such as myself has her limits.

You can try and try and explain, but they just don't get it. Whether it is intellect fallen short or ego run amok, those mavens of the published world seem to think that the dictation and interpretation of the rules of law, morality, and just about everything else are theirs by right, all because they have achieved that shadowy dream of seeing their name in print for cash.

I hope to still engage in friendly dialogue with Claire and the Fandom Jammers and Fandom Rebels (please forgive the manner of my departure from Lee's gang. I'm simply fed up) because they have been civil and courteous and gracious in inviting me to voice opinions, regardless of whether they agree with them, and have returned that courtesy by coming to my blog to discuss these complicated and by-no-means obvious issues with me. Much can be learned by such discussion, but after almost a year of trying to participate in Lee Goldberg's discussions, it's clear that his ilk aren't learning much of anything.

Now to be fair, my side hasn't been a glowing emblem of restraint and coherence either--all in all, the feelings of the Goldberg Gang and those fanwriters bold enough to challenge them are too strong to budge, or to even entertain a rational conversation on the subject.

So I shall say farewell.

Thy lips rot off, Lee Goldberg! Thou jarring, fat-kidneyed scullian! You speak an infinite deal of nothing! And you, Paul Guyot, thou villainous, rude-growing measle! Thy forward voice is to speak well of thy friend, thy backward voice is to utter foul speeches and to detract, thou fry of treachery! And David Montgomery, thou art wither'd like an old apple-john! Thine horrid image doth unfix my hair! As for Mark A. York, would the water of thy mind were clear again, that I might water an ass in it! Thy tongue outvenoms all the worms of Nile! And last, Holly Lisle, you are as a candle, better burnt out, thou craven, pox-marked strumpet! Thou art spacious in possession of dirt.

Goldbergs one and all, thine sole name blisters our tongues. Thou hath more hair than wit, and more faults than hairs.

I will most humbly take my leave of you. You cannot, gentlemen, take from me anything that I will not more willingly part withal! Thou art most noble cowards, infinite and endless liars, hourly promise breakers, the owners of no one good quality. In civility thou seem'st so empty!

Fare ye well!

Friday, June 17, 2005

New Topic: Writing And Selling Historical Fiction

My blog this evening has been graced by the presence of one Kate Rothwell, it seems, a historical romance writer.

Much squealing ensued.

As you may or may not know, my first novel in which I am making serious progress at last is a historical fiction (well, part historical, part mythological) set in the founding legends of ancient Rome. It's also got a pretty healthy romantic element as well, although I'm not sure if it qualifies as a wholesale romance...perhaps I should ask Kate.

But she made a very gracious comment on a previous post, and I wished to state for the record how thrilled I was to hear from her, and invite her to give input again.

(After all, when I started this blog, I had planned it to be about pro writing too, although I tend to get sidetracked when my ire is roused, as it often is, to the defense of my hobby.)

I have heard scary things about attempting to publish "genre straddlers." If I were to compare my story to a published work, I'd say it's most similar to Marion Zimmer Bradley's The Firebrand, in its treatment of history from the point of view of a minor character. But Bradley started and became established--I think--as a sci-fi writer.

What's a newbie author to do?

My published friends, regardless of your feelings about my night writing job (har har), have you any thoughts?

Thursday, June 16, 2005

Round and Round and Round We Go...

Ya know, I've got this assignment at the office right now that's driving me absolutely batty. It involves two areas of law that are related, but for the purposes of my case, they are not actually connected. The problem is, one side wants to say the two ARE connected, and the other wants to say they AREN'T.

My job? Find some case/statutory law that says who's right.

My problem? There doesn't appear to be any!

The result? Legal Area X and Legal Area Y each contain Provision Z. I find lots of info about how Action X.Z works and info about how Action Y.Z works, but nothing that suggests that Action X.Z would be valid under Legal Area Y, or that Action Y.Z would be valid under Legal Area X.

See my difficulty? ARRRGH! Now you might reply, "Well, then, I guess you can't DO Action X.Z and say that applies to Legal Area Y or vice versa!"

Man, I wish it were that simple. The problem is, X and Y are SO closely related that just because a specific case or law doesn't SAY you can do Y.Z for X or X.Z for Y doesn't mean a judge won't rule that you can.

On The Great Fanfiction Debate...

I was just musing on how this relates to the back-forth-back-forth, knock-down-drag-out, take-no-prisoners debate that's been raging all day on Lee's blog. And I got to thinking: the difficulty we're all up against is a similar problem.

It's a question of defining the issues again.

The questions involve the definition of creativity, the definition of originality, and the definition of writing.

What is writing?
What is creativity and/or originality?

And how much of the two latter do you need to equal the former?

On The Definition Of Writing...

They Say: (essentially) Real writing involves creativity and originality and because fanfiction uses other people's ideas, it's not original or creative.

I/We Say: (fanwriters) Real writing involves putting words and/or ideas on paper, and you can still be original and creative while using other ideas as a starting point.

On The Definition of Original/Creative...

They Say: (essentially) You invent your own characters/worlds/plots from scratch is required for creativity/originality.

I/We Say: Taking another idea/source and elaborating on it or altering it/taking it in a new direction, or interpreting it differently is still creative and still makes something original. interpretation creative, or is it another action separate from writing? What about adaptation/elaboration?

Round and round and round we go...

Oh, and to all the anti-fanfiction crowd, please feel free to correct my interpretation of your positions. I feel rather badly for my lack of manners in the previous discussions, and hope to reinstate common courtesy.

But overall, what do you think? Have I summed up our difficulty?

Guyot, What Bit Your Ass?!

With all due respect, of course. Lee Goldberg's comment boards weren't nearly large enough to hold the response I wanted to give to your comment, so I shall post my thoughts more coherently here.

I cannot tell you how happy I am that we are all home again. Feels good. Feels right. I do wish Keith Snyder were here...
Okay, to clear this all up - once and for all. Everyone - THAT MEANS YOU - is missing the point. Is missing the real essence behind this whole thing.

  • 1. Spoken as someone who actually comprehends the real reason? Tell me, my learned friend, from whence dost thou get this coveted knowledge?

It matters not what the law says or doesn't say. Some counties have "No dancing" laws on the books.

  • 2. Okay, I'll concede that up to a point, you are correct. The law is not the end of the debate, since laws become outdated, and they change. However, much of our debate has centered around whether or not fanfiction is legal, and for that, well...there's no better source than the law as backing up one's position, no matter which side you're on.

It matters not whether it's a trademark or copyright or is-it-right argument.

  • 3. Since when?

It is simply this: Those that engage in fanfic production do so because they lack any real creativity or originality.

  • 4. Pray tell, Guyot, when did you get your psychic license? Don't have one? Then how, I am perishing to know, do you propose to convince us that you KNOW what the reason behind fanfiction is?

Now, they will scream and shout that their work is creative and an "original" version of someone else's original idea, but that's crap. And they know it's crap.

  • 5. See # 4, first. And second, since the pattern of research-and-elaborate-0n-previously-created-concept is inherent in adapting novels to film, writing media fiction, etc, are you telling us that all such works are crap? I think Lee might take offense.

Does anyone notice that whenever Jocelyn - despite all her posturing about the law and her passion for fanfic - wants to justify herself as a writer, she mentions her original work. Not her fanfic.

  • 6. Thank you for bringing me into this by name, and for the personal insult. Not to say I haven't had worse (I'm a lawyer-in-training, after all), but really. Posturing? As I said on Lee's blog, I have been nothing but honest with all of you, since I am aware that my opinion is the minority over there. And I've done my best (not always succeeding, I admit) to be polite in my disagreement. Why you holier-than-thou beings of proclaimed greater intelligence, creativity, and maturity can't extend the same courtesy to a lowly fanwriter is beyond me.
  • 7. When I want to justify myself as having creativity sufficient to be published, yes, I do refer to my original fiction, because I am not going to list fanfic on my resume or anything else, any more than someone would mention collecting Elvis memorabilia or singing kareoke.

Because she is intelligent enough to understand that in the final analysis a writer is only truly a writer if they are creating - meaning thinking up their own characters, own worlds, etc. Not riffing on someone else's.

  • 8. Again, see # 4. I'm still waiting for you to produce your psychic license, particularly if you presume to comprehend my motives. Although I appreciate the compliment to my intelligence following the insult to my integrity.
  • 9. Actually, in the final analysis, a writer is a writer if they put words on paper. Are you trying to tell us that a researcher who collects stacks of books and treatises on some historical event and writes a treatment of it to add to that theory is not a writer? What about a parody writer? Creativity is just as inherent in the act of elaborating or transforming or rethinking as it is in inventing something for the first time. And don't try to tell me that none of your original concepts were ever inspired by something out. Creativity comes in degrees, I freely admit. But kindly don't presume to be the judge of where the "cutoff point" is.

I don't have an opinion about the legal questions re: fanfic. Who cares?

  • 10. A lot of people, actually, on my side AND on yours.

The opinion I hold is simply that fanfic is not only disrespectful to the author, but personally embarrassing and a waste of time.

  • 11. At least here you were kind enough to state it as an opinion. As for "personally embarrassing," so is skinny dipping, singing bad kareoke, and collecting Elvis memorabilia. Eating too much chocolate is a waste of time, that doesn't mean a person can't derive a little pleasure from it!

I love Harry Bosch. LOVE that character. Do I wish I created him? Absolutely. Would I ever think about writing something with Harry Bosch in it? Absolutely not. Why? Because:
1) it's disrepectful to Mike Connelly (am I right or wrong about this? There is no right or wrong. It is only opinion).

  • 12. Now he tells us. Back when you were knocking fanwriting, my motives, and creativity, you might have made that stipulation about it being only your opinion.

2) I would be embarrassed because it is saying to the world that I have no ability to create. Oh, I can take someone else's idea and riff on that - make Harry gay or a Trekkie, or whatever - but that's not creating, that's not writing. Despite how hard fanfic producers will try to convince themselves they are creating - they are not.

  • 13. Again, you speak with the voice of an authority you don't have.

3) And maybe this is the most important reason - my ego. I've got my own ideas and my own characters. I want to write them! Because I think they're pretty bitchin. Let Connelly have Bosch. Let JKR have Potter. I love my characters!

  • 14. And I love mine. I love the characters in the novel I'm writing, the original characters I've added to the universe I write fanfic in, and the characters I've borrowed from the original author for my fanfiction. And my ego gets just as big a boost from a fanreader telling me, "You've made the wait for Harry Potter # 6 so much easier!" that I would from someone praising my original work. (I'll let you know how being paid factors into the ego thing once I publish a novel.)

The bottom line, the end-all, the final analysis is simply that if you are writing fanfic you are lying to yourself. You are not a writer. You are not learning to be a writer. You are wasting your time.

  • 15. Again: says YOU. Mutter under your breath that fanwriters are weird and immature all you want, but don't try to tell me that you have the power, knowledge, or wisdom to judge what is writing and creating and what isn't. You don't have that power. No one does.

If it makes you smile and makes your other fanfic buddies smile, then more power to you - go write the shit out of it. But just know that you will never be what you truly, deep-down-inside want to be - a writer.

  • 16. I neither know that nor believe it. And since all I have telling me that I'm not a writer is your judgmental, self-aggrandizing rambling, I'm not going to lose much sleep over it.

How can I make such a bold statement?

  • 17. DAMN good question!

Because to be a writer - a REAL writer - one has to have the soul of a writer.

  • 18. And you, sir, have the wisdom to see that soul how, exactly?

And that particular soul understands in no uncertain terms that fanfic is soulless.

  • 19. Riiight. Again, spoken with such conviction for someone who has no idea what he's talking about!

I do apologize for my rudeness in this post, but I can't deny that comment made me mad. For one, since like I said on Lee's blog, Guyot was always one of the more decent and rational members of this ongoing discussion, generally polite to those who disagreed with him.

But the sheer arrogance of it is mind-boggling.

I shall post more shortly on a fanwriter's explanations for the ACTUAL motives (from someone who actually knows) behind why fanwriters do what they do.

Wednesday, June 15, 2005

In Your Dreams!

Forgive me, ladies and gentlemen, this shall be a cranky post.

In the wake of NPR's Open Source hosting Lee Goldberg, some fanwriters, and Rebecca Tushnet in a reportedly-poorly-conducted discussion about fanfiction, the debate has flared up again. And to my greater annoyance, I missed the show. (Was bogged down with a paper at the time.)

And once again, published authors are declaring on blogs far and near what they "know" about fanfiction: "It's stealing."

Apparently because being published automatically makes you an expert on the laws concerning published works.

Sorry, folks, the law doesn't work that way. Copyright Law in particular grants you specific rights, many of which are complicated and often up for debate depending on the nature of the action you object to. And you don't get to dictate how the law is applied, even in relation to your own material.

  1. Intellectual Property is not the same as real property. An IP owner's rights to control and possess are far less than a real property owner's. Don't like it? Too bad. That's the way it is.
  2. A Copyright does not grant an author the exclusive right to control all use of their work and ideas. The most notable exception is Fair Use, but there are other statutory exceptions as well.
  3. Relating to fair use, four things are taken into account: a) the purpose and character of your use, b) the nature of the copyrighted work, c) the amount and substantiality of the portion of copyrighted work taken, d) the effect of the use upon the potential market.
  4. Just because the author doesn't like how his/her work is used doesn't mean the author can prevent the use. That's why copyright law allows for uses like criticism, commentary, and parody.

I'm planning to do a much more detailed treatment of fanfiction and copyright law when I've got some time to spare at the office, to avail myself of their enormous treatise on Copyright Law. (Nimmer, how do I love thee...)

And once again, Lee is attempting to generalize all fanwriters based on one blog comment in response to his radio discussion, which argued that fanwriters have a great emotional attachment to the original work.

I generally agree with Lee's assessment of the comment itself--it's a bit much.

Let me see if I can explain it better:

The Fanfiction Community

While it's a stretch at best to say that fanwriters have a greater emotional attachment to the work their stories are based on than the people who originally created that work, it's worth noting the emotional attachment that fanwriters have to their own work.

The fanfiction world is a community of writers, readers, and fellow fans, all united by a shared love of the original work. And contrary to what the other blog comment said, we often do have deadlines. (For example, Harry Potter fanwriters who wrote "sixth-year fics" are scrambling to get them done before July 16th, lest their readership vanish in favor of the real thing.)

Writing a story, whether it's based on something else or not, creates an emotional attachment to that story throughout the process. For fanwriters, especially those who write multi-chapter tales and update them on websites chapter by chapter, this is especially true, when readers send reviews after the posting of a cliffhanger, begging for the next installment and theorizing about what comes next. Fanwriters and their readers get to know each other, converse with their regular reviewers, and debate on how well the fanfiction treats the original work. It's a fun, friendship-forming experience.

So that's my latest input to the fanfic debate. More to follow, as always...

For future reference:

Sunday, June 12, 2005

The first syllable of my name is not pronounced JOYCE, dammit!

Tee hee! Amusing that the part of Tono Rodone's latest salvo to which I take most offense is his inability to pronounce my name correctly even in writing.

My name is Jocelyn, Tono, not "Joycelyn." It's pronounced "JOSS-uh-linn." Although it does mean "joyous," the word "joy" is found nowhere in the actual pronunciation!

(Chuckle) As to the rest of it, I rather like the idea of being "Joce sells linen" (I've been called worse things," and I suppose your assessment of me is correct:

Whilst a law student, I most likely will not complete my novels. Hey, you try researching and writing historical fiction in between moot court practice and studying, not to mention the rest of your extracurriculars!

Good ol' Tono, what will he think up next?

Friday, June 03, 2005

It's Friday But I Ain't Thanking Anyone!

You know you're a workaholic in the making when you hate the arrival of the weekend and are glad that you've got a keycard to get in after hours.

Yep, 'tis the conclusion of my second week lawyering at an Orlando law firm, and thus far, I'm loving it. I turned in my huge copyright research project yesterday, having learned some very interesting things about damages (I'm looking at YOU, Lewis Perdue!) and also about proving copyright infringement in general (I'm looking at YOU, Lee, Tod, Claire, Keith, etc.)

Only now I'm onto my next project, staring at the treatises and American Jurisprudence entries I use to get myself started, and thinking, "Good lord, I'm back at square one!"

Interesting. But each stage of figuring out a point of law has its appeal. I kind of like the beginning, just the learning part, but I adore the moment when it's really starting to come together and I'm finding the answers our client needs.

Or am I just pathetic?


Yesterday was the first day I put in less than ten hours. The day before the copyright memo was due, I put in over eleven and didn't eat lunch, I was working so hard. But I really like it. It's a relief. I'm thinking maybe law was the right choice after all.

But I still work on my stories during lunch. ;-)