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.

Friday, June 24, 2005

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.)

13 Comments:

Blogger Claire said...

I'll wade in.

Intellectual Property can take years to develop. Consider the time spent in law school or medical school. Teachers do not dispense their knowledge for free, neither do doctors and lawyers. To all my medical buddies out there, leave the obvious jokes by the side of the road. A drug company who puts research and dollars into a drug is allowed a certain amount of time that drug is proprietary, as in, it cannot be duplicated in a cheaper way for the public good. Again, medical types, give this a wide berth. For me, pretty please?

An effective drug makes way more money than the typical writer.

Eminent Domain, dare I say, is a concept I support, though I hope it never happens to me. It provides roads where there are none, protects land that might otherwise not be protected, makes parks. Provides tangible good. Also, apparently, provides housing and shopping malls where people were living. That part sucks. At the same time, each case needs to be examined on an individual basis.

Often eminent domain is used in cases in which the needs of the many do outweigh the needs of the few, or the one.

The subject of fanfiction: There is no 'need of the many' here. If they like the world, they buy the book, or borrow it from the author. Making use of that book outside the bounds of Fair Use, in the form of derivative works without asking permission first serves no 'greater good'. All risk accrues to the copyright holder, the creator, the artist, who might find themselves in position of being accused of supporting inappropriate materials (especially in the case of children's works) or being sued for stealing some fanwriter's creation.

Long-winded, and I have to run, so...that's all for now. Apologies it's so messy and all over the place.

4:35 PM  
Blogger Claire said...

whoops!

borrow it from the LIBRARY.

eek.

4:36 PM  
Blogger Jocelyn Smith said...

it cannot be duplicated in a cheaper way for the public good.

But again, there is a difference: with "fair use" we're not talking about straight duplication--and that distinction is important. A library could not lend out an unlimited number of copies of a book. There's no question that a fan posting the entire text of a book straightup online would be simple infringement.

Making use of that book outside the bounds of Fair Use, in the form of derivative works without asking permission first serves no 'greater good'.

In your opinion. We fanwriters have presented a whole host of goods that come from allowing people to use the world to play with: educational benefits (the improvement of writing skills for those who write the fic and those who read it), artistic benefits (the creativity that comes from carrying on the story in different directions), and economic benefit (to the author, from the fan appreciation and "free advertisement", to the Internet web hosts, etc.)

And DON'T talk to me about porn in this discussion. You can't negate the benefits of an entire medium of communication because of the use of one small percentage.

If they like the world, they buy the book, or borrow it from the author.

This isn't a situation of simply "liking" the world, this is a situation of wanting to see a story in that world that the author hasn't written and may never written (in some cases, will definitely never write.)

It was Tolkien who said that his Middle Earth was so vast a world that he couldn't possibly tell all the stories that were there to be told, and he wanted other people to tell them.

That's the force that drives the fanwriter: wanting more than any single author could possibly provide in their lifetime. "But what happened before So-and-So arrived at the scene of the crime? How did Boy meet Girl? What was their first date like? What happens after 'The End'?"

Those are perfectly healthy questions for a fan of a story to have, and there is no harm to the author in allowing the fans to dream up answers to those questions and share them with each other.

As for the risks: do they really outweigh the benefits I've described?

Yes, people may write porn based on the work. But the AUTHOR is not legally responsible for that. Nor could any fanwriter possibly hope to win a plagiarism/infringement case against an original author in a million lifetimes (see Pickett v. Prince, it's already been proven.)

How does the POSSIBILITY of a little bad press because the author gives his/her fans the freedom to speculate and share their ideas stack up to the REALITY of the educational, artistic benefits that their entire fan base can receive?

I think it leans our way.

5:22 PM  
Blogger Claire said...

Okay. I won't bring up the porn. Doesn't matter, it's one of the big issues that will decide this if it ever does end up in a head-on collision. Because nobody is going to argue that the porn supports the greater good.

The onus of 'the greater good' is on the fanwriter to prove. Otherwise, they are splitting hairs to be able to write their stuff. Like Heidi declaring that JKR likes having porn written about her stuff. Or whatever weird backpedal that was over in The Unnamed Place.

I presume you don't plan to give away your Intellectual Property, as in, your legal smarts, for free?

8:05 PM  
Anonymous PPG said...

Claire writes:

The subject of fanfiction: There is no 'need of the many' here. If they like the world, they buy the book, or borrow it from the author. Making use of that book outside the bounds of Fair Use, in the form of derivative works without asking permission first serves no 'greater good'.

I've been lurking in and out of this discussion on a few blogs. I'm also a fan fiction writer (or yet another "soulless hack", but anyway) for a couple of fandoms. These are just my humble observations, nothing more.

I would certainly call the continued popularity of a fandom a 'greater good'. What those who deride fanfic writers forget (or don't want to admit), is that fan fiction helps to keep a fandom going during the lulls between new book or season or movie installments. It was a ten year gap between when "Star Trek" the series ended and "Star Trek: The Motion Picture" was released. The only thing that kept the franchise going in those years was the fans, through conventions and fanzines and yes, fan fiction. (I recall a few media-tie-in books, but not that many, certainly not as many as what had been written after the movie aired.) The book edition of Star Trek: The Motion Picture even slyly acknowledged slash fanfic writers in a footnote in the novel (text can be found here. ) I find it refreshing that the creator of what has arguably become the most well-known TV franchise, saw the need to acknowledge fanfic writers for essentially keeping his dream alive.

Now that the franchise has ended it remains to be seen whether the fans will be able to sustain it until its next incarnation. (I've watched fandoms die due to lack of interest. It's not pretty.) In the original 10-year lull, fans (and fan fiction) managed to keep the fandom momentum going without the Internet. Now the Internet is available as a tool. At any rate it should be interesting. :-)

Also, on the topic of "the greater good", this is what Ronald Moore, the senior writer for the SciFi series "Battlestar Galactica", had to say about the Star Trek series cancellation: "Star Trek has now been returned to the care of its community of fans." This is a writer who wrote episodes for Star Trek: The Next Generation. He acknowledges outright the originality and contributions of fanfic writers to keeping the franchise alive during the lean years, and he expresses his hope that they will do so again.

It's too bad that Lee Goldberg and friends don't want to admit this--fans and their opinions do count, some choose to express their opinions through fan fiction, and to dismiss those who write fan fiction outright can only hurt in the end.

2:31 AM  
Blogger Claire said...

Hey, Ppg. I never called you a souless hack. That's two blogs over.

I understand what you're saying, but the greater good that you cite is not a universal greater good. A fandom dying is unimportant. An author who likes fanfiction, fandoms, whatever of their work is welcome to authorize permission for those derivative works. But it should rest in the author's hands.

I think what's sent authors, including myself, and a few others I've spoken with, over the edge is the temerity to proclaim that a fan has the right to write the stuff whether the owner of the copyright, the creator, the person responsible for it in the first place wants it or not.

There's no place to go with an argument like that. It doesn't matter how somebody wants to twist the law to justify what their doing. Explaining that twisting with a simple, 'Well, that's just how legal interpretation of laws goes' does disservice to everybody.

4:33 AM  
Blogger Jocelyn Smith said...

I presume you don't plan to give away your Intellectual Property, as in, your legal smarts, for free?

Sure I do, under the proper circumstances. And it goes to the heart of the issue:

What I'm doing right now, writing about "copyright and free speech" or "fair use and eminent domain," is in a way, "giving away my legal smarts." Just for the record, for casual conversation/commentary/discussion.

On the other hand, my firm would take a dim view of another firm trying to take statements I'd made hear and selling them.

Therein lies the difference. I talk about Nimmer's Copyright Treatise a lot, but if I ever tried to post it verbatim--that would be crossing the line.

Where the line falls has nothing to do with "twisting the law." It's just difference of opinion. Even the Supreme Court doesn't agree, as the last case proved.

12:21 PM  
Anonymous ppg said...

Hi Claire,

Hey, Ppg. I never called you a souless hack. That's two blogs over.

I'm sorry, I never meant to imply that *you* said that. I should have clarified. Mea culpa?

I understand what you're saying, but the greater good that you cite is not a universal greater good. A fandom dying is unimportant.

I would think it is when that fandom is a source of income/livelihood for the creator (and let's face it, it all comes down to money). Once the fans leave, there's nothing left to sustain it, and the creator either moves on or disappears. Simple as that.

I think what's sent authors, including myself, and a few others I've spoken with, over the edge is the temerity to proclaim that a fan has the right to write the stuff whether the owner of the copyright, the creator, the person responsible for it in the first place wants it or not.

You know, I do agree that the creator/author has a right to say what can or cannot be done with his/her work. On the other hand it strikes me as odd that such creators/authors are effectively saying to me "I want you to buy my books/watch my show, but I don't care what you as a fan think about it and you have no right to express it." Because, fan fiction is ultimately a creative expression of fans' opinions.

Please indulge my speculation here. First, does a fan have a right to think about, speculate, interpolate or extrapolate from a creator's work? Does a fan have a right to disagree with the creator's work? I think (hope) we'd both agree that yes, that's true. In my fandoms I don't always agree with what the creator/author has done with certain characters or situations. There is also so much unexplored backstory and "off-screen" action as it were, that such events will likely never be explored in canon. (Canon is the source material--fans know that canon cannot be contradicted.) That's where fan fiction exists--in the areas where the author doesn't (and/or likely won't) go. I view fan fiction as an expression of fans' opinions in a creative manner. And it has always been written. To think otherwise is simply naive. (Though it's more visible now because of the Internet.)

Whether fans have a right to share their opinions with each other is another question and I think that's where the issue lies. How much control does an author/creator want to exert in the sharing of fans' opinions amongst themselves? Copyright now appears, to me, to be used as a means of controlling what fans can and cannot say--or at least, how they can say it. That's what I'm reading from this discussion. I know that copyright exists so that creators have the right to make money from their works for a specified period of time, but this second use frankly bothers me. (I'm not a legal person at all so feel free to shoot my interpretation down--but that's how I see it.)

I don't think these authors, who don't want fan fiction based on their work, intend to say they don't care about their fans' opinions. Unfortunately, that's what comes across to me. That's a dangerous stance to take. I think it fosters an elitist attitude and ultimately stifles creativity. But hey, that's their right and I won't argue that. I just won't buy their books or watch their shows. That probably won't bother established authors who already have big fan bases, but struggling authors trying to build a fan base could suffer greatly. Fandom is ultimately a give-and-take between creator and fans and fans are fickle creatures.

(Sorry Jocelyn for hijacking your blog, I'll leave now if you want me to.)

1:54 PM  
Blogger Claire said...

I'm sorry, I never meant to imply that *you* said that. I should have clarified. Mea culpa?

S'okay.

I would think it is when that fandom is a source of income/livelihood for the creator (and let's face it, it all comes down to money). Once the fans leave, there's nothing left to sustain it, and the creator either moves on or disappears. Simple as that.

Agreed, but that's a good for the creator, not the greater good. Again, up to the creator/copyright holder. They want to take that advantage, G*d bless 'em, perfectly within their rights. However, perfectly within their rights to say, 'Fans go away. Or, fans, no fanfiction, hands off my creation' whatever. Fans move on also. No big deal.

I'll grant you that fanwriters are free to write all the fanfiction they want. If it's private, or shared among a few friends through email or on very private archives, fine. No effect to the creator in this case, nobody knows about it, nobody cares. Publish it all over the internet, claim rights to it, ignore the wishes of the creator, the one who CREATED the work, hollering and screeching they have no rights, elevating the process to a constitutional argument?

Um...we're not talking Big Important Questions here. We're talking about fanfiction. Fandom is not a religion, or a lifestyle, it's a bunch of people who like a television show or a book. It's not an Entity with legal status.

PPG, I'm talking to you as an ex-fanfiction writer. I still write it, as a lark for my own, or my friends books. They write it about my work. It's a joke between friends, not a serious undertaking. Kept to that level, it's fine. Understanding one has no right to the creation, the characters, whatever. Treating the subject material with respect, treating the person who birthed it with respect. I'm good on that. I think most writers would be. Holly Lisle was. She, along with many, many others did not care for Ms. Novik's comments that her or any writer's wishes were unimportant.

There's no place to go with an attitude that contemptuous of a person's creativity and hard work.

7:36 PM  
Blogger Claire said...

Sure I do, under the proper circumstances. And it goes to the heart of the issue:

but it's your decision. I can't compel you. I can't call you up and say, 'Hey, Jocelyn! I need you to go to escrow for me, got another property transaction. You have my undying gratitude, but not my money for your time and effort.'

Least...don't think I can.

Um. can I?

Teasing. Have my own attorney on tap for stuff like that, but you get the picture.

7:40 PM  
Anonymous PPG said...

PPG, I'm talking to you as an ex-fanfiction writer. I still write it, as a lark for my own, or my friends books. They write it about my work. It's a joke between friends, not a serious undertaking. Kept to that level, it's fine. Understanding one has no right to the creation, the characters, whatever.

In all my years reading fanfic on Usenet and the Web, I have yet to come across any fanfic writer who has not understood that they do not own the creation or the characters, nor have they claimed they own them. I certainly make no claim on the creation or characters when I post my own fanfic.

Seriousness of the matter? Some people (like you, from what you say above) look at it as an amusing hobby. Some (like me) see fanfic as practice--I want to write original fiction one day, but I know for a fact my writing skills right now are weak. The feedback and constructive criticism I get from posting my fanfic helps immensely and simply by getting writing practice in, I'm preparing myself. Some are serious indeed, bordering on obsession, but there may be other reasons why and I don't presume to know them.

Treating the subject material with respect, treating the person who birthed it with respect. I'm good on that. I think most writers would be. Holly Lisle was. She, along with many, many others did not care for Ms. Novik's comments that her or any writer's wishes were unimportant.

I'm not arguing that either. However the opinion in the fanfic communities I see, and I concur, is that Mr. Goldberg and Ms. Lisle and others have shown as much disrespect for fans/fanfic writers as they claim those fans have shown for them. When writers like Robin Hobb liken fan fiction to "identity theft" that's when they start to lose respect among fans. That's unfortunate--many of the people she's offended by her sweeping statements about fanfic are those who buy and read her books (and who happen to write fanfic in other fandoms). Just my observation.

10:28 PM  
Blogger Claire said...

Hi PPG,

Obviously, Robin Hobb doesn't want people writing fanfiction about her characters.

Go ahead and cut your teeth on fanfiction. I did. It's fine for that. You don't have to splash it all over the internet. Ms. Novik's attitude seems to be the prevailing one according to the tenor of arguments presented on this blog and at Mr. Goldberg's.

Authors don't come up with statements like those being made for cavalier reasons. There's a really bad button being pushed. The Free Culture movement suggests that, in fact, a copyright holder can't claim ownership. That the ownership is granted by gracious consent of the fans.

Reexamine Ms. Novik's statement. It's appalling.

12:45 AM  
Blogger Claire said...

wow. good rant by Robin Hobb. Can't add a thing to it.

When I say cut your teeth. I mean it. Don't do it for too long. Don't end up one of those people going from fandom to fandom, searching out new readers, begging for feedback from people who write fanfic or who'll read anything if it involves their favorite character. Don't wake up one day to realize you've been writing the stuff for two or four or eight or ten or more years.

Instead, join a writer's group in your area. Most places have one. If they don't, form one. Write your own stories. Accept critique from other people writing their own stories. Seek out people who know what they are doing. Spend your money on books on the topic, there are some excellent ones. Visit Holly Lisle's site, she's very generous with pointing to articles and giving tips on how to write and professional writing standards.

While your cutting your teeth? Keep it lowkey and to yourself.

Have fun. Writing's a lot of fun. I wish you well.

1:02 AM  

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