It's always the exteme cases that make the news and are seen to represent us all

[scarfman]

fourzoas posted about this woman who put her Twilight fanfiction on eBay, got called on it and removed it; but reportedly keeps putting it back and put out a press release defending fanfiction and her actions. Unfortunately, instead of the defense being in legal terms, it's in such New Age, quasi-Jungian phrases as "Universal Mind" and "this matrix we call reality". Now I, as you must know, Gentle Reader, agree with her in principle, but - as I note in one of my fanfictions - law is about what can be measured. This is what I commented at fourzoas' post:

Well, I believe fanfiction is, and of a right ought to be, fair use. I don't take the issue to court because (a) I don't have the time or the money (b) I'd rather spend my time on writing/drawing the fanfiction. But it's true: fanfiction is the modern technological equivalent of the fireside oral folklore of all of human history up until now; the hiccup in normality is not that we make up and tell our own stories, the hiccup in normality is that the sources are owned by big corporations. However, if this woman wants to take it to court, I hope she (a) realizes the fight she's in for (b) finds someone to rewrite her brief.

There was a case like this a coupla years ago, just after I got on LJ: someone putting their Star Wars novel on Amazon. I wrote this about copyright at the time.

And:

I'd like to see the issue taken to court too, but by someone who had a chance of winning. I don't think this woman is that.

Comments

[stoplookingup.livejournal.com]

Oh, no, not another defense of fanfiction from someone who doesn't have the first clue what the words "intellectual property" even mean.

I don't believe people should be allowed to profit from unlicensed derivative work. I actually think most fanfic writers agree with that on some level, even if they don't realize it, because very few ever do try to sell their work for a profit.

[scarfman]

I have a dead link in my essay on fanfiction to a slash writer's legal argument (she's a lawyer) citing case law that fanfiction is fair use when it's not-for-profit and doesn't intrude on the property owner's market. It applies less clearly to gen than slash, I suppose; though I wouldn't want to be the litigator arguing that, e.g., a Star Trek/M&Ms crossover steals market from the property owners.

[elliptic-eye.livejournal.com]

I think most fanfic writers agree with that on a very prominent level, and rare is the one that doesn't realize it—if the vim with which we turn on people who try to sell their fanfic is any indicator.

[scarfman]

Hey I'm wrong, the link to the argument that slash fanfiction is fair use isn't dead any more.

[daibhid-c.livejournal.com]

I think this may actually be an improvement on her original legal position, as reported in Ansible:
"Copyright laws protect writers from unauthorized reproductions of their work, but such reproductions only include verbatim copying. Characters are only copyrightable if their creator draws them or hires an artist to draw them".

[sensiblecat.livejournal.com]

It's been my experience that relatively few fanfiction writers are motivated by profit. Far more common is the desire to participate in the creative process, and most treat the characters with a level of respect that would seem remarkable to the writers who created the initial works under professional constraints.

I agree with you that the present concept of intellectual property is the historical aberration. At university I studied medieval mystery plays and now I study Shakespeare, both examples of writers having a completely different attitute to ownership and a sense of great freedom to develop a common mythos. The Mystery Plays are classic Bible-story fanfiction, picking up little missing scenes such as how Joseph must have reacted to Mary's strange pregnancy and working them up into charming examples of character development.

[scarfman]

I'd read of mystery plays, probably when majoring in theatre while flunking out of Northwestern, but if they were described to me then as Bible fanfiction, even in other words, I don't recall it. (You know there's Bible fanfiction at fanfiction.net, don't you? Not as many as there is Muppets Tonight fanfiction, if I remember, but it's there.)