Jocelyn's Other Desk

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

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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 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: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html

5 Comments:

Blogger Claire said...

The fanfiction world is a community of writers, readers, and fellow fans, all united by a shared love of the original work

Now who's generalizing?

But it sounds good on paper.

You know, Jocelyn. You should talk more with the fandom jam people. They've been around a long time. Know a lot of stuff. Not a bunch of nutcases. Not one will ever tell you who he or she really is, and with really, really good reason. But I think you'll find that in general, they're a bunch of decent folks.

9:46 PM  
Blogger Jocelyn Smith said...

Now who's generalizing?

Actually, that's a fairly accurate statement. If one fanwriter meets another fanwriter, just like any two people with a shared interest, they have that much in common.

And honestly, while I enjoy popping over to the fandom jam blog now and then and seeing what's being discussed, I've been noticing an awful lot of judgment and a lot of the "opinion-presented-as-fact" over there. (Like that "trial" thing that got posted.)

You've beeen by far the most decent of the lot.

9:20 AM  
Blogger Claire said...

heh. Again, you don't think that crew knows what they're talking about. They do. Better you talk with them at my blog. Comments are mostly kept shut down over there. Seems the anime people don't like being told that cartoons involving children having sex are questionable. There are sister-sites that the crew talks at. Not there.

You know, you put all kinds of stuff up here that nobody is honking on you about. Fandom Jam has their opinions, based on hard evidence, research and experience. Judgmental seems to be a 'bad word'. They inform, parody and humor is their vehicle, for the most part. Yet plenty over there are pretty damned sympathetic to fandom. It's like watching a slow-motion train wreck. Beating heads against walls kind of stuff.

In other words, for them, it's not All Good, All Okay, Live and Let Live, Rules Apply to Everybody Else but Me kind of attitude.

But, talk to them, not at them, and you might be pleasantly surprised.

Off to read your Guyot post.

3:05 PM  
Blogger Jocelyn Smith said...

Seems the anime people don't like being told that cartoons involving children having sex are questionable.

Well, heck, I perfectly agree!

I did have a couple of conversations, though, where I'd explain the copyright legalities of fanfiction in general, and people kept saying, "but what about pornfic?"

I would respond that the pornfic argument doesn't apply to the copyright legality of fanfic in general because not all fanfic is pornfic, but the only response I would get is, "but pornfic is BAD!"

It just got frustrating after awhile; I keep getting accused of defending kiddie pornfic perverts because I defend fanfic in general.

3:48 PM  
Blogger Claire said...

Because the kiddie pornfic IS their main concern. Adults sexualizing venues meant for children IS what worries them. They wouldn't be over there if it weren't for the unfortunate aspects of fandom. They aren't there to destroy fandom, they are there to point up a specific problem that fandom does not want to address. You should see the lampoons that don't go up. Because they are just good-natured fun-poking at the phenomenon in general. You'll see them from time to time, but it's not thrust of the blog nor their work.

Unfortunately, the issue of fanporn is so defended, tied into, academicized by the community that those who really didn't care decide they'd just as soon see it all go, then leave the kiddie porn there.

For those of us over there who are artists, the copyright issues are real, but subordinate to the kiddie porn issue. But it's easy to drag people into sympathy for that aspect of it if you show them how people are using their 'freedom of speech' and their abuse of fair use.

You can call them judgmental but they are careful in what they post and spend a lot of time sitting on their hands not to post. Better they work on real change then spend their time typing on blogs. Look at that little girl on LG's blog who doesn't understand the words, 'Shut up. You aren't doing the person you're dragging into this any freaking favors.'

She perceives me as 'the enemy', therefore can't see I'm trying to do her a service.

4:12 PM  

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