More on derivative works

[scarfman]

According to Sci-Fi Wire yesterday the Amazon page selling the unauthorized Star Wars novel is still there (despite my reporting that it was gone) though Lucasfilm Ltd. Legal has spoken to the author/publisher about it.

theferrett admits to being one of the people whose gut reflex to fanfiction is, "Why don't you write something original?", but nevertheless says the things I'd've said the other day if I hadn't been so mad (but his way of course).

billroper writes of the steadily vanishing status of parody as fair use (Everyone remember the The Wind Done Gone case?), and the steadily growing time limits on copyrights, to the benefit of corporate intellectual property owners and the detriment of the public domain. This puts me in mind of a discussion I had on Usenet once. I'm not sure whether it'd be polite (or, considering the present topic, legal) to quote the other parties in this discussion without their permission, so I will summarize or spot-quote their comments and quote only my own in entirety.

Someone posted asking for the real legal standing of fanfiction.¹

The copyright laws are actually vague, and there is little or no case law to clearly support or refute any charge that fanfiction is illegal. This point is made in an academic paper here on the Web, a paper that makes the argument that fanfiction is and of a right ought to be "fair use", like satire, as provided for in existing copyright law. The paper is Legal Fictions: Copyright, Fan Fiction, and a New Common Law by Rebecca Tushnet, reprinted on the Web with permission, from volume 17 of the Loyola of Los Angeles Entertainment Law Journal, 1997 (17 Loy. L.A. Ent. L.J. 651):

http://www.tushnet.com/law/fanficarticle.html

Henry Jenkins, director of media studies at MIT, and other sources are quoted in this paper on the essentiality of fanfiction to the folk cultures that are screen-s.f. fandoms. There's also a lawyer named Judith Gran who's an internet Star Trek slash fan and writer:

http://www.alternateuniverses.com/judygran/copyright.html

She cites case law in support of the contention that fanfiction is fair use if it's not-for-profit and doesn't intrude on the property owners' market (which however may be truer of slash fanfiction than of what you or I may write).

Someone stated that fanfiction is illegal even if it's not-for-profit but just isn't usually prosecuted.

These statements are true but not comprehensive. Parody of another's intellectual property, for instance, is a copyright violation, but is allowed for under the fair use provisions of copyright law. If, for instance, the editors of National Lampoon were taken to court over Bored of the Rings, their defense would not be, "No we didn't infringe on the Tolkien estate's intellectual property", it'd be, "Yes we infringed, but our work is a parody and therefore is allowed under the law," and on that basis they'd win.²

Whether non-profit, non-damaging fanfiction is fair use is something that isn't yet expressly addressed by copyright law or case law. Unless someone knows of a case I don't.

And:

The concepts in copyright law were created in order to encourage the creation of new works by guaranteeing creators ownership of their creations - not to line the pockets of creators' blood or corporate heirs. I believe any creator's copyrights ought to expire when the creator does. When copyright laws deny society the natural use of one of its cultural icons - e.g., Sherlock Holmes, Mickey Mouse, Superman, Captain Kirk; all of whose creators are dead - then they're working against the very purpose for which they were created.

Another person responded to my last post stating profitable copyrights ought to be renewable at a nominal fee.

See, that's exactly where we differ. Profit oughtn't be the regulation [sic; ought to be regulating] issue. Mickey, Superman and Captain Kirk are cultural icons who ought to be free to use of the public. Where would Virgil have been if Iliad & Odyssey, Inc. had still retained rights to all characters appearing in Trojan War fiction? What if Thomas Malory would have had to pay royalties to the estates of Geoffrey of Monmouth, Chretien de Troyes, and whoever wrote the old French Vulgate cycle (who under those circumstances would damn well not be anonymous)? There needs to be some time limit. It used to be death of the author plus fifty years with a one-time (I think) option to renew by the estate. I think it ought to be the death of the author, period. Disney thinks it ought to be the end of time, and it is a rape of the system's intended purpose, and of you and me, that they're getting their way.

It was posted asking whether copyrights have a legal time limit: Isn't the time limit 50 or 75 years?

It used to be that a copyright expired fifty years after the author's death. I recall a newspaper article about 1980 noting the fiftieth anniversary of Arthur Conan-Doyle's death and the passing into public domain of Sherlock Holmes. Yet ten years later, the reason Star Trek: The Next Generation had to allow several years between Elementary, My Dear Data and Ship in a Bottle was that [the TNG people belatedly discovered that] the rights to Sherlock Holmes are still after all under control of the Doyle estate. International legislation on these matters is becoming the kept creature of corporations such as Disney, who was the prime mover in the bill you're speaking of, the Bono Bill. I'm not an expert, but it was my impression at the time that the passage of the Bono Bill does allow for the possibility that copyrights can be kept from expiring indefinitely. That is not what copyright law was conceived for, it's the antithesis.

Someone reacted to my last post objecting that creators are as entitled to legal protection as other professions are.

You've misunderstood if you think I said being a creator isn't worthy of legal protection. What I say is that being a creator's heir rather than being a creator isn't worthy of legal protection.

If your deceased father or CEO wrote a novel or a screenplay that became a household word and made him a fortune, you're certainly entitled to as much of the fortune as he elected to leave to you. But if you want to earn royalties off intellectual property like he did, you damn well ought to have to create your own like he did.

It was suggested that copyright limit ought to be a flat twenty-five years from publication.

I'd vote for that.

The same post suggested that family inheritance of intellectual property was a holdover from a form of inheritance law that U.S. law doesn't recognize.

Yeah, next thing you know the presidency would become heriditary.

... Uh oh.

The poster whom I told he had misunderstood me denied it, that I was saying "... some forms of artistic endevor are worthy of legal protection [his example, sculpture]; other's [written works] aren't ..."

No, because (what I apparently didn't make clear) the distinction I'm making isn't between art and wealth, it's between physical and intellectual property.³ Under the terms I argue, you're still entitled to the sculptures [willed to you by the sculptor] themselves, but I'm entitled to make any use I want of their images or descriptions in any medium under no restriction from you. Under the terms I argue, Patricia Kenneally-Morrison would be entitled to publish her personal letters from Jim Morrison at her discretion alone, as she is not under prevailing conditions.

Later I elucidated:

I think a more articulate clarification is called for than the one I dashed off in five minutes this morning.

: I didn't misunderstand in the slightest. Your premise implies that if
: my father spent his time and energy creating paintings or sculpture I
: would be entitled to not only any money he chose to leave me, but to
: all of the art that he willed to me as well.

The physical manifestations of your father's artworks - the originals, or such originals as he retained - could, and ought to be able to, be willed to you. That's just as if he'd written a novel, and willed you the original manuscript or his copies of the first edition. Or as if he'd willed you anything else that he kept in a box or a bank. Yes, I said that.

: I would control it, its
: use and its reproduction.

Here's where you've misunderstood me. I didn't say this; it's the opposite of what I said. Control of use and reproduction is intellectual property, not physical property. If, as in my premise, copyright on a work expired with the death of the creator, the law would take away the control of use and reproduction of your father's creations from him upon his death, and put it in the public domain. No intellectual property would pass to you, whether the physical property created by him which you inherited was paintings, sculpture, manuscripts, software, plush toys, furniture or anything else.

: However, if he'd worked as an author of
: some sort, I would be s.o.l. You'd have the right to rip off anything
: he'd created and use it as you chose without royalties or control.
: That means that some forms of artistic endevor are worthy of legal
: protection; other's aren't

I didn't say this, I don't believe it and if you believe I said it then you misunderstood. Have you assumed that I don't consider the definition of intellectual property to include visual art, just because my original hypothetical example didn't explicitly mention paintings, sculpture, software, plush toys or furniture? Such an assumption would be a grievous error. Most of my own intellectual property is visual art (at least as measured in kilobytes).

: - unless of course you are arguing that you
: also have the right to walk into the Museum of Fine Arts and take
: Apollo and the Muses and draw a moustache on each of the four
: figures, since Sargeant is dead.

Off the subject, but: Now you seem to be assuming that I don't distinguish between physical property and intellectual property. That assumption also would be incorrect, as I hope discussion above makes obvious. Nothing in copyright law or in my premise has any bearing on physical property, and vice versa. And certainly nothing in my previous discussion provides anyone with any basis for predicting my actions in art museums. Okay, back to the subject.

: Then, at least, you'd be consistent
: in your views.

I think I've now shown that no such inconsistency exists. I apologize if I've been unclear, I thank you for an involving discussion and I hope you will now address comments to what I have said.

My response to the same person's next post:

Yes. Under my proposal, all intellectual property copyright would expire on the death of the creator(s). All. No matter who owned it, be that owner the creator, a purchaser or a blood or corporate heir.

: I suppose the concept of selling or retaining reproduction rights by
: the artist could be eliminated as a concommitant of entire devaluation
: of intellectual property you are espousing, but at the cost of
: seriously devaluing some fine and much commercial art. Seems like
: artists have enough trouble making a living without taking one source
: of income away.

This is an argument in favor of death-plus-a-time-limit that has not been advanced to me before. ...Understand, my objection to death-plus-a-time-limit is not that it's unjust, because it isn't unjust (given a reasonable time limit). My objection is that death-plus-a-time-limit is the system in place that is being abused, with no recourse by opponents of the abuse. Since there seems to be no middle ground (the theoretical middle ground being where we were when the abuse commenced, and where theoretically we still are), as an opponent of the abuse I'm left compelled to advocate the opposite extreme.

Quick history lesson: In the atmosphere when Thomas Jefferson created US copyright law, inventors were either getting their ideas stolen or hiding their creations away in their barns to keep their ideas from being stolen. Jefferson's laws were brought into existence to create the proper balance between the reward for a creation due a creator and the use of the creation due to the public.

That balance has been overturned by the corporate-profiteering-driven, effectively perpetual copyright. Under the Bono Bill, US corporations with enough pull to renew their copyrights every twenty years now effectively possess eternal copyrights. Much as I, or anyone, may think their idea is a solution, few or none have the resources to see it accomplished in today's world, i.e. resources to fund a legal battle in which the defendant is funded by corporate resources.

: I find it reasonable to assume that Joss Whedon doesn't own BtVS, its
: distinctive likenesses, images, etc.

I'm certain you're right. ...He ought to. But that's another argument.

: Of course its easy to equate him
: with Mutant Enemy and in most circumstances assuming it and he are
: pretty much the same will serve us well. However, if Joss walks in
: front of a bus tommorow, Mutant Enemy will still exist. It will still
: have a board of directors and all its stock will still have an owner,
: presumably some of the board/owners will be his heirs and therefore be
: allowed to exercise control over the creations Joss brought forth
: while an employee.

You are persuasive that death-plus-a-time-limit is the compromise needed between my position and Disney's. But, again, we had that compromise and it's gone awry. It's been shown not to work in the present climate.

: I am unclear as to how you believe this situation
: should be dealt with. If you believe that ME should continue as
: owner, including making those last five episodes of Angel, are you
: saying that only the creative folks too dumb to set up a corporation
: and put a couple of family members on the board, should lose their
: intellectual property upon demise?

If my death-plus-no-time-limit premise was effective, Mutant Enemy would lose their exclusivity. But that's all - the production of the last five episodes wouldn't be inhibited any. Thus whether Mutant Enemy made those last five episodes of Angel without Joss would depend on whether it wanted to pay the amount for which the WB and Fox would sue if Mutant Enemy didn't meet its contractual obligations. All intellectual property copyright would expire on the death of the legal creator(s). All. No matter who owned it, be that owner the creator, a purchaser or a blood or corporate heir.

: Or, if you say that, in your corner
: of the multiverse, Mutant Enemy will not own intellectual property
: sold to it after the seller's death, are you saying that Joss's
: investors (assuming he has some) would have to be fools to have
: assumed that they were actually getting something valuable when they
: received stock certificates?

: You mentioned Captain Kirk as a creation that should be in the public
: domain now that the man who originally birthed the concept is dead. Do
: you really think that Desilu would have bankrolled that crazy
: Wagon-Train to the Stars concept Rodenberry was selling (and which
: no-one else was buying) if they hadn't been buying all rights for as
: long as copyright can exist?

Again, given the need for a studio's resources to create screen dramatic presentations, this is a persuasive argument in favor of death-plus-a-time-limit, as long as that time limit can't be changed.

Alternatively ... here's a thought: If copyrights expired at the death of the creator(s), then perhaps investors or corporations could be subcreators through a contract. Subcreators would retain the intellectual property at the death of the creator(s), until (a) their own death(s) in the case of human persons or (b) expiration of a reasonable time limit in the case of corporations. Uh oh, here we go trusting corporations with time limits again, and that's how we got into the present mess. Perhaps corporations would be disallowed from being subcreators; a movie studio would have to have a person on salary to be the subcreator of the properties it produced.

Or, in this world: Perhaps corporations should be disallowed from owning intellectual property, and have a salaried subcreator. Or perhaps executives would give away subcreatorships to stars in contract negotiations, or to their secretaries for Christmas, like 'Executive Producer' credits these days. But now I'm wandering off the present topic.

; If so, you think of Hollywood Studios as
: being much more beneficent than I believe them to be.

Of course I don't. But neither should Hollywood Studios be allowed to perpetuate that purchase for eternity, and that is effectively what's happened. It needs to be fixed somehow. What would you suggest?

: >Most of my own intellectual property is visual art (at
: >least as measured in kilobytes).
: Sounds like you better go into the used car business. The market for
: art will be drying up - at least in some parts of the multiverse
: (NOTE- a joke, not to be taken literally)

Noted. Still, profitability isn't the primary concern of all creators. It was for, e.g., Ian Fleming, who sold the movie rights to James Bond and told the studio he didn't give a damn what they did with the character as long as it earned him royalties. It's not for, e.g., Joss Whedon, whose stated purpose in creating Buffy was to give us all a cultural icon of strength and independence in women (at which, I'm happy to say, I believe he succeeded). It's not for me. I intend that my intellectual property become public domain on my death, no matter how little or much monetary profit it may have made me. And I don't believe it will be necessary to involve, in its creation or distribution, anyone else who, so involved, would be cheated by the loss of that property into the public domain.

With the advances in communication technology in the past century - in the past decade - it shall one day, perhaps one day soon, be economical for creators such as Joss and Gene to produce and distribute their screen dramatic presentations without need of a studio's resources. The like has already started - see the discussion of Megatokyo book sales dated March 13, 2004 accompanying Monday's and today's cartoons at:

http://www.megatokyo.com

It may be that corporate hijacking of cultural icons will cease from the corporations going under due to competition with independent creators before it ceases from legislators coming to their senses. Either way I'd still prefer the legislators to come to their senses now.

My proposal may be unrealistic, and may require some amendment to be fair to all. But the present status quo definitely posesses these qualities.

Someone else asked about collaborations: Would the copyright not expire till the last co-creator died?

Yes.

: Seems a tad unfair to early expirers. (-;

Why? What would they do with the property if they didn't lose it?

So to summarize the argument I put forward: Since death-plus-a-time-limit is the system theoretically in place, but is being abused by corporate intellectual property owners to suspend copyright expiration indefinitely, I put forward the resolution that intellectual property ought to be ownable only by actual persons and not by corporations, and ought to expire at the death(s) of the creator(s).

¹ I am not a lawyer.

² I was told this by someone whose legal opinion I trust. I've since been told by another party I don't know as well that this isn't so; that, under the law, fair use is a seperate category from infringement, not a permitted type of infringement.

³ In fact I had made the distinction, if you go back and look. What was escaping him was the definition of the distinction.

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