Azure Jane Lunatic (azurelunatic) wrote,
Azure Jane Lunatic

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Hold the fuck on a moment (intellectual property law, CC, and your fic)

All right, so everyone who reads me and cares about fanfiction probably already knows that Diana Gabaldon recently ran across fanfiction, got squicked probably in a large part due to how strongly she identifies with some of her characters, and went on a rant about how this is wrong, bad, immoral, and probably illegal to boot. Everyone who ditto has likely also already heard the usual roundup pointing out that, uh, no. (Though nobody's arguing with her right to be squicked. Or, at least, I hope not. YOU HAVE THE RIGHT TO BE SQUICKED; YOU DO NOT HAVE THE RIGHT TO NECESSARILY INSIST THAT YOUR SQUICK SHOULD BE ILLEGAL.) So, um, *handwavy* probably no need for me to do a roundup. But it's out there. [community profile] metafandom is going to explode tonight or tomorrow.

Meanwhile, Jim Butcher has gone sort of entirely the opposite direction. Having previously been in the "Keep the fanfiction away from me because I don't want any of you to sue me for stealing your ideas" camp, he and his assorted legal eagles have found a way around that.

I am not a lawyer, and I do approve -- wildly approve -- of fanfiction, as my Delicious account will attest! However, I'm one of those people who can't just leave well enough alone. I will go ahead and pick away at any problem I can find with anything I care enough about to poke at. And whoo boy, I am about to digress at length.

The stuff I've seen suggests that unless profit is involved somewhere, the law is Uninterested -- it gets interested in things like a fan blatantly trying to sell something with the serial numbers still on it, a fan trying to convince the world that their unlicensed tie-in is Officially Blessed, a fan attempting to create an unlicensed tie-in that has too little original material, or someone seeing something popular and trying to exploit the built-in audience for the popular thing to promote their own unrelated platform (and as much as I adore Harry Potter and the Methods of Rationality, that's what it's doing, it's just that it's a brilliant fanwork in its own right too, which saves it) -- these tend to get legally smacked down. (I recently read through a ruling involving Snoop and the Cat in the Hat; it was fascinating.)

Standard fan wisdom is that fanfic is actually a promotional extra for the source canon. People start out liking the source canon, find the fic, get involved, and get more engaged with the source canon. Then you've got the people who first encounter the fandom through fic (a crossover, or something someone recommended that you tried) and you like it, and you seek out the canon. I'm a rare bird: since I rarely branch out into new TV on my own, and I don't have my own TV, and I don't have a computer that works reliably enough to serve as a TV, I tend to stick with the written stuff. (I don't have the attention span for regular TV as it is.) I am one of the few people for whom written material is likely to trump video almost every time. So fanfic is competing in the same niche as books, not TV; TV, movies, and written works have been existing side-by-side more or less peaceably. Internet vs. printed are still battling things out. Some people print the fic they want to read; some people buy ebooks of professionally published items; some people put their fic on a reader device; some people buy physical books and then get an illicit electronic copy so they can read it on their device of choice. But fanfic is the written word, so if it is competing directly, it competes with the written word.

Curiously, off the top of my head, I think the franchise with the most room to lay down smack about fanfiction damaging their actual sales would be the Star Trek books empire, upon close-to-canon novel-length Star Trek gen fic. Some early Star Trek novels are quite obviously fanworks that were submitted and accepted, with very little effort to create any sort of continuity between the novels. It appears as if one can no longer just send in a manuscript and hope to get it accepted out of the slush pile, but Star Trek fanworks come from a culture where if your fanwork was good enough and you got it noticed, it could get officially blessed.

The content of the Star Trek novels franchise is close enough to novel-length fanworks, professionally edited, from a very good recommendations list that is currently not accepting new authors. Some of the authors have story arcs set up. Some of them don't. If you had a good recommendations list for novel-length genfic, with good authors and stellar betas, you could get your Star Trek novel fix without going through Paramount, as long as you didn't mind not having the official seal of approval, and didn't mind missing the particular authors and stories that Paramount blessed. (I couldn't read fanfic-only; Diane Duane writes Star Trek, and I have author loyalty to her.) And having someone else wade through Sturgeon's Slush Pile is definitely a value-added service that some readers are glad to pay for.

The official novels are not actually smutty, and stick to canon pairings or original characters. This is where the apparent majority of the unblessed fanfiction and the actual novels diverge: if you want Kirk/Spock and smut, you can't get that from the novels, unless you managed to get your hands on a copy of Triangle and are reading between the lines. You have to go to the fanfic for that. And the fanfic seems to be more with the smut than not with the smut, so you have to look more than just casually to find the novel-length gen. I do not disparage the novel-length smut-with-plot! It is amazing! I love the fact that new Star Trek fandom is generating novels with all this incredibly lickable plot. I want to heap it all up and jump in it like a pile of autumn leaves. (Can we tell that I'm envious of the Southern Hemisphere's autumn?) But I assert that most of it involves smut, and I am very OK with that.

So Star Trek's novel-readers and fanfic readers overlap or exist more-or-less contentedly alongside each other, but the needs being filled by the novels and the fic do not actually fit the same niche.

So what would make the niche match and compete? Let's try novel tie-ins to a media canon, where the novels are not heavily policed for consistency among each other (Star Wars is famous for ensuring that the books attempt to not contradict each other, and that's definitely added-value that is rare to get out of a large cluster of fan writers working independently), multiple authors (single-author canons are another beast entirely), where the authors allowed to write are not a closed club (author loyalty cuts both ways -- the same author guaranteed may have a loyal following, and the quality of their work is known, but not letting fresh blood in means other authors with strong followings won't be let in, and if the fanbase tires of the known author, well...), and where fan-generated works are close in content/tone to the official stuff, and official stuff has little actual value (as opposed to the collector's cachet attached to Official Stuff) added over the fan-generated works.

By that metric, X-Files tie-in novels would be in direct competition with well-written, well-edited, centrally-recommended novel-length X-File-categorized fics from the Gossamer Project, of no more than PG-13 on the sexiness scale (maybe R if the R was for gore/gross/violence), MSR, UST. (And come to think of it, X-Files tie-in novels didn't seem to take off all that well. Perhaps 10-13 should have tried the Star Trek method for getting books?)

But the actual problems that published authors and fanfic authors are running into with regard to each other runs the other way. Current common wisdom is that published authors have to treat any and all fanfiction of their work, particularly of a series they're still working on, like radioactive Kryptonite. This actually seems to be the major legal problem with fanfiction and an ongoing series: not that the canon author can sue the fans for their no-profit entertainments, but if the fanfic authors come up with an idea (and okay, ideas are a dime a dozen) and then does the heavy lifting of putting this idea, implemented with those characters, in that universe, into words -- and then when the canon author does the same thing, the fanfic author sues the canon author for substantially ripping off the work they'd done in the fanwork.

This specific scenario is why Jim Butcher is asking for fanfiction happening within his areas of possible notice to be licensed as Creative Commons derivative-noncommercial. It's the step a lot of modern authors on the internet are taking, to protect themselves and the fans.

So, the point of what I was wondering about: do the intellectual property whizzes in the audience feel like holding forth on circumstances when a writer of a perfectly legitimate fanwork should not license that fanwork as derivative-noncommercial?

I have a vaguely-held notion that this could pose a problem if the fan had created something original within the framework of the derivative fanwork, and then later wished to use that original thing in a completely original work.

For example, if I wrote a bit of Star Trek fanfiction containing a scene where Captain Picard, the kindly but stern captain, was lecturing Wesley about his duty as an Officer and a Gentleman, Wesley having made some vital slip-up earlier -- say I wrote this, and I licensed it as derivative-noncommercial. Then, several years later, I have written a thriving Age of Sail series, and I suddenly realize that I could just as easily take the lovely speech I wrote for Captain Picard, and put it in the mouth of Captain Stickarse, and edit it ever so slightly so it describes the actions and circumstances of Awfully Cute Midshipman. The concepts of Upright and Formal Captain, Eager Young Seaman, ship, Officer & Gentleman, and putting them together just so, are hardly tied to Star Trek. They're glorious old tropes, and for good reason.

I suspect that, had I previously licensed the whole fic as derivative-noncommercial, even though that part of it was my own legitimate work, and even with those universal tropes, that since that specific section had previously been released under that license, that this would affect my legal ability to stick that extract, even edited, in a commercial work, even though I was the original creator. The license, as far as I know, applies to the whole work -- I do not think that there is an easy way to say "well, this bit of it is his, but this bit is mine" in a coherent work of fiction under the Creative Commons licensing scheme (much easier for software) -- and licensing some parts of the fic and not others does not protect the author of the original canon one whit, should that author stumble upon it. And you, as the fanfiction author, don't always know which bits you want to use later. Smart, informed fic-writers these days have been using disclaimers along the lines of "Everything you recognize -- Kirk, Spock, the Enterprise, and the Federation -- belongs to Paramount. The words, Ensign Mary Sue, and that whole race of aliens are mine. The cracked-out plot, I blame on my good buddy!" -- which draws the lines very neatly and in the fan-writer's favor about who owns what, and whose creative efforts are responsible for what.

The intent of the move towards Creative Commons derivative-noncommercial is to protect the canon author from the liability of having Seen Fans' Ideas, and I applaud that. I suspect an author who is requesting that their fans license their work for this reason is not likely to abuse this, even if some of those fans do go on to write published works containing sequences that are awfully similar to bits of their earlier fanfic. But I think the potential for abuse is there, and I think that if the letter of the law does mean what I think it means, then it would be illegal to do this, even if it's not actually enforced.

A true clusterfuck scenario which doesn't involve actual abuse from the author, and doesn't even involve ill-intent from a fan, would be if:
* a fan wrote a fic, licensed properly, with a delightfully in-character bit
* the author saw the fic, even just skimming an extract in passing
* an idea from the fic wormed its way into the author's brain, in such a way that the author thought it their own (after all, it is delightfully in-character for that character of theirs, is it not?)
* the author wrote that bit into a forthcoming book
* the fan decided to branch out into original fiction
* the same sequence from that fic worked its way into the original fic (even in such a way that the writer forgot they'd used it in the fanfic)
* yes, the identical sequence that the author from the first canon used!
* someone discovers the striking similarity
* lawyers ensue
* funtimes for all!

While it's not true that all fanfic writers go on to become original writers, a lot of them do have inclinations in that direction, and I'm leery about any trends in the fanfic environment that discourages writers, or encourages budding writers to do something that's actually illegal.

Thoughts? Corrections? Am I simply off my nut?

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