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Could Compulsory Licensing Work for Fiction?

I’m a big fan of twitter. One of the best benefits of twitter is that I get to see the links to the hottest news and viral memes as they become part of the internet collective consciousness. This means that when my brother emails me in two months asking me if I have seen a certain YouTube video I have not only seen it but probably retweeted the link a dozen times. A few weeks ago, people were tweeting the link to a remade music video.

On Gawker, there were a number of videos of soldiers dancing. They like Ke$sha:

There was the infamous wedding entrance played to the music of Chris Brown:

This one was recommended on Twitter by Lady Gaga herself:

A North Carolina DJ personality posted his own performance of Beyonce’s “Single Ladies” and when Beyonce toured in Atlanta, she brought him onstage:

You know who seems to like these videos a lot? Authors. I see authors retweet these links all the time. But you know what these are? These are the music equivalent of fan fiction. Now music has different copyright rules than written works (such as the compulsory mechanical license), but the concept here is the same. The composer’s work is being used and set to a different sort of public performance. Yet these videos are lauded, even by the original artist.

The compulsory mechanical license is pretty fascinating and I confess to not understanding all the ins and outs of music copyright. In essence, once a song is released commercially, anyone can re-record it and even sell the re-recording (or cover) of the original so long as the the original melody or lyric isn’t substantially altered and the person covering the original pays the proper royalty or fees. For sales under 2500 copies, the person covering the original pays 9.1c per copy (for songs under five minutes). The publisher (record company) and the composer splits the payment (this is the source of big disagreement between publishers and composers/artists). Each and every sale must contain acknowledgment to the original version.

What if some kind of compulsory license scheme were instituted for fiction? Where fan ficcers would apply for a license with a reasonable application fee of $10 or so? Then for each fan fiction piece sold, the fan ficcer would have to pay an amount to the publisher which would then be split between the publisher and the author? Each fan fiction piece would have to be properly identified as a “cover” of the original. Of course, most all fan fiction is freely available so the amount paid to the publisher for a “free” version v. a “paid” version would have to be completely different.

From an economic standpoint, I don’t see downside for authors. There is nothing about a cover that diminishes my interest in the original. Even this great remake of Beyonce’s Single Ladies made me replay the original version to see the difference:

Some of the videos above even contain direct links for purchase of the original song. In the case of the JK Wedding Dance, the virality of the music video led to “Forever” climbing back onto the music charts, hitting #4 on iTunes. Chris Brown, who had been suffering a public relations nightmare arising out of his beating up his girlfriend Rhianna, actually gained in popularity due to this copyright infringing video. (This caused the couple to set up an ad generating website where they solicit donations for the Sheila Wellstone Institute which aids victims of domestic violence).

The downside of this type of licensing scheme for fiction is twofold. First, someone’s fan fiction writing could outstrip the original works. It could happen. A lot of readers feel authors jumped the shark or took a direction that they didn’t agree with. A talented writer could fulfill that need for a set of readers. The other downside that I can perceive would be authorial loss of control although with a music compulsory license, the cover can’t deviate substantially from the original. What that means, though, I am unsure. (There is probably case law on this but I am not familiar with it). On the whole, though, I think a license of fan fiction fulfills the basic tenets of the original copyright grant which is the balancing of the public’s interest in the advancement of arts and sciences and the original creator’s exclusive right over their writings and discoveries.

What do you think? Feel free to tell me I’m crazy.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

36 Comments

  1. Tweets that mention Could Compulsory Licensing Work for Fiction? | Dear Author -- Topsy.com
    Jun 15, 2010 @ 04:18:15

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  2. Jan Oda
    Jun 15, 2010 @ 04:53:16

    I am not familiar with American copyright law (being from Belgium and all that jazz), but I seem to recall in a recent discussion on George RR Martin’s (a fantasy author) blog about copyright and fanfiction that one of the biggest problems is that if authors do not defend their copyright (against fanfiction and other deriative works) that that means they don’t claim their copyright, and therefor loose it.

    I thought then, and still do, that this kind of problems can be easily solved with Creative Commons. Somehow Creative Commons have mostly been used for online works, but why not use it for print fiction? For your worldbuilding?

    The different license options seem a perfect fit for fanfiction to me, and I’d wish more authors would make use of them.

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  3. Marsha
    Jun 15, 2010 @ 05:11:24

    Wouldn’t the “deviate substantially” part be the sticky wicket? If I rerecord Rhianna’s Pon da Replay as a polka piece using only didgeridoos, changing the rhythm but keeping the words and melody I can see how that could still be considered not to deviate substantially. It would remain recognizable, if a little strange.

    But if I rewrite Karen Marie Moning’s Dark Highlander so that Dageus MacKeltar ditches his heroine and instead moves to suburban Philadelphia to do my laundry, make my morning coffee, and drive my kids to and from their play dates, well, as delightful as that sounds, couldn’t that be considered substantially altered? Even if I were to sell eleventy-billion copies and forward the proceeds accordingly I think I’d understand if KMM felt that the loss of control of her character and plot might be a poor bargain in that case.

    Characters and plots seem more inextricably linked to me than the components of songs. Am I simplifying this too much? Missing something?

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  4. Mina Kelly
    Jun 15, 2010 @ 06:14:22

    There was that whole problem with Marion Zimmer Bradley and the novel that couldn’t be published. There’ws a lot of different versions floating around, though fanlore summarises quite nicely: she encouraged fanfiction, and would even collaborate with fanfiction authors if similarities arose, but ran into trouble when a fanfic author requested more than just a credit for Bradley’s use of her work. As a result, the book was eventually cancelled, and a lot of authors have felt obliged to avoid reading fanfic of their own work since.

    The most relevant part to this discussion is that when a novel is part of a series, fanfiction may predict the direction its source will later take. It’s not a problem with music, since sequels aren’t exactly a regular occurance (though it would be interesting to see what would happen if an artist’s video was very close to a fan made one), but with books I think you’d still need to be protective of the license as long as a series was in progress. The author needs at least some plausible deniability, which seems more difficult when money is exchanging hands. Not only that, but if a piece of fanfiction accurately guessed the plot of a later book, there might be a chance the fanfiction would sell better than the book. if the fanfic came first, would we risk a situation where the original author then has to lease the plot back?

    Overall, I think it would be a nice idea. You see doujinshi sold in Japan under what I figure must be similar terms, but the US system (and even more so the UK) would require a change of philosophy as much as a change of law.

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  5. sao
    Jun 15, 2010 @ 07:08:16

    If I write a book and get published, I don’t want other people writing about my characters. I noted that plenty of kids on the internet wanted to see Bella have sex with Edward. Why shouldn’t fanfic writers write that scene?

    Would Meyers have the right to say, I nix this, not that? And on the internet, who is to say how many people read it. What if it went viral? Could the author then claim huge fees from a million copies read? And how much use would that be if the writer was a teen with no money?

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  6. Mai
    Jun 15, 2010 @ 07:45:09

    @Mina Kelly:
    That aspect of the doujinshi scene*** you’re referring to is illegal in Japan, though. Like novelists with the fanfic community, there is a range of various reactions and attitudes, ranging from encouragement to indifference to complete outrage. Some copyright holders consistently campaign to have this aspect removed (the rest of the doujinshi scene is fine as it revolves around self-publishing original works).

    Some publishers and comic artists/authors choose to ignore this “works of parody” (as in ‘fanfic’) aspect by reasoning that a) it’s part of a grassroots movement that could be good to attract new readers to the official works, and b) the sales of doujins’ works tend to be used to pay for printing and distribution costs, leaving no money for themselves.

    When certain doujinshi titles that feature copyrighted products become popular enough to enter the mainstream, this is when copyright holders usually issue a legal demand to cease these publications and, occasionally, a request to pay compensation to copyright holders.

    In short, this one aspect of the doujinshi scene is mostly ‘barely tolerated’ than ‘encouraged’. Similar to authors tolerating the fan fiction scene, I suppose.

    ***for those who aren’t familiar with ‘doujinshi/doujin’, it’s a community of self-published amateur comic artists/authors.
    Please note not everyone in this scene creates and publishes comics featuring copyrighted characters or products. Those that do are part of just one aspect of a huge community. The majority of this community tend to publish original works, as in creations of their own.
    Basically, it’s an opportunity for those who want to self-publish their works, instead of going through traditional channels, e.g. submit a work to a publisher-sponsored national contest, or become an apprentice or assistant (as an inker or whatnot) to a professional comic artist for a number of years.
    Some say self-publishing original works is the best way to catch publishers’ attention. Considering some professional comic creators’ origins, I think there’s some truth to this.
    It’s interesting to note that those who self-publish works featuring copyrighted characters or products tend to shy from supporting this belief publicly. It’s as if there’s an unspoken rule that one shouldn’t push this belief while using someone else’s creations. I may be wrong, but that’s my impression, anyhow.

    Sorry for going off the track a bit and for being so long-winded.

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  7. Lori
    Jun 15, 2010 @ 07:45:57

    Fan fic encompasses a lot more than just tweens writing Bella and Edward too. There’s fan fic with movies, television shows and famous personalities also.

    Fan fic is huge. It’s somethng that’s done with young writers learning to write and older writers expressing love of a character, series or star. How would you possibly control any of it?

    As an aside, my 9 year old daughter likes to write books herself and currently her characters are Spike and Angel and Edward. I think it’s woderful. She’s making Spike the sympathetic character.

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  8. Mina Kelly
    Jun 15, 2010 @ 07:57:42

    @Mai
    Thanks for the info! I’ve only ever seen fan ones, and most of those I’ve seen them for sale commercially (with warning s about not reproducing for free). I know CLAMP started out as doujin writers/artists as well. I guess I came away with the impression fan-doujinshi were legally sanctioned, since it seems really wide spread. Maybe it’s just skewed by the manga I like, with creators who encourage it!

    It’s more comporable, I guess, with fanart than fanfiction. It seems acceptable for fanartists to sell art and commissions at conventions, while it’s taboo to do the same with fanfic. It’s equally illegal, it’s just less commonly C&Ded.

    @Lori

    I was wondering about that too. You’d need to set up the same system for all creative media, be it book, film, comic or even song. What if a film had spin off novels? How would the company differentiate between licensed fanfic and commissioned work? If you didn’t apply it across the board, you’d find people writing fanfic of novelisations of films, to get around it.

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  9. TKF
    Jun 15, 2010 @ 08:12:26

    @Lori:

    She's making Spike the sympathetic character.

    Go, Team Spike. I see you’re raising her right. *grin*

    From an economic standpoint, I don't see downside for authors.

    Authors could all just go full on James Patterson and start co-opting their fan fic writers into a publishing machine . . . am I the only one who thinks there’s something really bizarre about his whole co-author setup?

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  10. Jane
    Jun 15, 2010 @ 08:16:34

    @Jan Oda: The requirement of vigorous defense exists for trademarks and not copyright.

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  11. CourtneyLee
    Jun 15, 2010 @ 09:11:15

    I think it might be too much of a slippery slope. I agree with Marsha, the trick would be determining how far a deviation would be considered substantial. For romance, would different couples getting together be too much of a difference? How about slash fiction, which imposes a different sexual orientation on a character? Those things are incredibly common in fanfic, but I think they change the original too much to be considered a “cover.”

    And where to comedic spoofs come in? Is obvious and deliberate screwing with a story for the sole purpose of poking fun at it different than someone simply rewriting it according to their imagination?

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  12. Chicklet
    Jun 15, 2010 @ 09:18:59

    I can’t speak for other fanfiction writers (obviously), but I’m not at all interested in making money off my fanfic. It’s a hobby, just like my knitting. So instituting a license fee only for fanfic writers who wanted to sell their work would be a nightmare for enforcement, but instituting a license fee for all fanfic writers, even the ones who aren’t trying to make money, would be onerous to the hobbyists.

    Authors could all just go full on James Patterson and start co-opting their fan fic writers into a publishing machine . . . am I the only one who thinks there's something really bizarre about his whole co-author setup?

    That is a weird set-up, for sure. There are a number of authors of tie-in novels to movies/TV shows who started out as fanfic writers for those very properties, so it wouldn’t be without precedent.

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  13. Jane
    Jun 15, 2010 @ 09:27:27

    @CourtneyLee: Comedic spoofs,etc. are already covered under the Fair Use category. See The Wind Done Gone, a satire of Gone With the Wind. (among other cases).

    The farther away from the original, the less need for a license because Fair Use would apply.

    The starting point for my analysis is that fan fiction, particularly that which closely follows the canon, is likely infringing. If the code could e changed to allow compulsory licensing, the big thing that authors would lose would be control but they would gain money and free promotion of their original works.

    I see a lot of value in fan fiction, not just the exercise of learning the craft of writing, but the derivations and permutations of story ideas.

    Copyright is currently designed to favor the original creator and those who own the copyright (in many cases major corporations) that I can foresee a huge stifling of creativity in the future.

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  14. S.L. Armstrong
    Jun 15, 2010 @ 09:31:56

    What I think I disagree with is the use of the term ‘cover’ as a description for fanfiction. A cover of something, as the definition stands, is that is does not significantly change the source material. A Perfect Circle’s cover of Imagine may sound like a dirge, but the melody and words are the same. Metallica covered Bob Seger’s Turn the Page, and while it has a distinct metal melody now, it’s the same song.

    But, when you pick up Vanilla Ice’s Ice Ice Baby, though you recognize Queen’s Under Pressure bassline. You listen to Eminem’s Sing For the Moment, and you can hear Aerosmith’s Dream On in the bridge. This is sampling, where you take one aspect, one piece of the original work and build something original around it. To my mind, it’s closer to what fanfic is than a straight cover.

    Sampling has legal precedent in Supreme Court case law to not be copyright infringement. A particularly legal savvy fanfic author — with the monetary backing — may be able to draw on such precedent. However, in practice, samplers still seek permission and still pay some monetary recompense to the creators of the work they’re sampling.

    I agree with the basic sentiment being said, but I’m throwing more food for thought out there in that there’s at least two other avenues to consider. Sampling, but also commercially licensed fanfiction.

    Many franchises do have commercially licensed fanfic published through, or in conjunction with, the original owners of the material. Star Trek, Star Wars, a lot of video games, Buffy: the Vampire Slayer, Doctor Who, Torchwood, etc. Usually, this happens when a print book is not the original medium. Some authors, of course, have also licensed short story anthologies based in their worlds (Mercedes Lackey is a prime example). When you put the time into this massive worldbuilding, you — as the author — know you’ll never be able to tell all the stories, and it becomes financially lucrative to rent out your sandbox.

    There are already possibilities for what’s being presented here. The key is, most fanfiction just isn’t any good, or it’s completely sex-based. You couldn’t go to the produces of Stargate and pitch a novel where Sheppard and McKay finally realize their long-lost love for one another and have wild monkey sex in the Gate room. Not gonna happen.

    Commercially licensed fanfiction is more like a cover in that respect. You still have to remain true to the original source material, as well as the tone and thematic elements. You can’t turn Stargate Atlantis into a rom-com. At least, not without prior clearance and justification. (I’m looking at you, Buffy musical.)

    I’m not saying there’s an answer for everything, I’m just saying there’s some other things for consideration. I believe 99% of fanfic is always going to have to stay underground in the gray area. I’m going to stop writing now. *laughs* I think I’ve babbled enough.

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  15. Carolyn Jewel
    Jun 15, 2010 @ 09:47:55

    I don’t agree with taking away or limiting rights that people/consumers already have.

    Fan Fiction, mashups, remixes, and what have you, bring it on. Let people express their opinions, state of fandom, sense of humor and political opinion.

    Robust conversation is good. Let’s encourage it.

    I am wildly against imposing barriers, most especially money barriers.

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  16. Jane
    Jun 15, 2010 @ 10:20:53

    @Carolyn Jewel What rights do people/consumers already have in regards to fan fiction?

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  17. kaigou
    Jun 15, 2010 @ 10:21:19

    It seems to me that in the introduction of royalty-paying requirements, it’s also a sudden and severe threshold of participation: economics. If you can’t pay, you can’t play, and one of the things that has made so many fandoms so vibrant is their lack of a significant (cash-outlay, at least) barrier. Outside the issue of time to write, and access to the net, and a place to host (many free, thanks to the large multi-fandom sites), the barriers are relatively low.

    Now, if you meant “pays royalties only in cases where you intend to make money off the story”, that’s different. I can’t tell whether that’s what you mean, and the post read to me like you were saying “must pay royalties to even post story online”. I imagine authors might be glad of that, but then they’d probably find a lot of their fans abruptly going underground to avoid that economic imposition.

    Actually, requiring writers pay royalties to publish creates both barrier and incentive, at the same time: if you do pay, you can gain from it. Currently, though, fanfic writers do capitalize on original stories, if in a borderline underhanded manner (cue the infamous ‘file off the serial numbers’ chorus) as loosely-cloaked reduxes of existing works.

    Royalties would make that loosely-cloaked element unnecessary, while also alleviating the authorial fear that they’ll gain nothing from someone else’s adaptation/reimagining.

    HOWEVER, I’d only advocate for that if we could get some reasonable limitations back onto copyright limits. 95 years plus life of the original author is a damn long time to be paying royalties. Who’d sign up for that (and possible rate-hikes at the whim of the copyright holder) when there’s absolutely no hope you could ever live long enough to see your work become free-and-clear thanks to the original entering public domain?

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  18. Mischa
    Jun 15, 2010 @ 10:49:18

    OK, your crazy. :-)

    Your cherry-picking examples. There are just as many examples of those types of videos being pulled, by the record company, because of copywrite. (Especially if it gets a lot of attention.)

    I don’t think an author should have any right to anything regarding fan fiction. Yes when you write your story it’s your baby, but once you’ve published\shared it with the wider world it isn’t just yours any more. So what if someone turns it into a slasher or gay porno, no one with a lick of sense would confuse it with your story.

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  19. Ridley
    Jun 15, 2010 @ 10:51:59

    Seeing the drama ASCAP and EMI cause with their licensing enforcement, menacing coffee shops for their open mic nights where people *might* sing a rendition of a licensed song, and how it’s led to fewer open mic nights, I wouldn’t be eager to bring that sort of regulation to fan fic.

    I doubt it would make copyright holders any money and it would likely just cause a mass shutdown of fan fic sites after pubs send scary C&D emails.

    Also, why do you want to gut fair use?

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  20. TKF
    Jun 15, 2010 @ 11:20:33

    @Ridley:

    Also, why do you want to gut fair use?

    FanFic isn’t covered by fair use.

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  21. Ridley
    Jun 15, 2010 @ 11:38:44

    @TKF:

    Says you?

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  22. Jane
    Jun 15, 2010 @ 11:43:14

    @Ridley I have to agree with TKF. While some fan fiction may fall under fair use, the closer the fan fiction is to the original, the less likely it is fair use. I’m not sure how incorporating a licensing scheme would “gut fair use” particularly when fair use is still a defense for music. I.e., Cardiff Rose v. George Harrison suits. 2 Live Crew won their suit because it was determined to be fair use (parody). Harrison lost his because his song copied the melody from another song without any intention of parody/satire.

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  23. Jane
    Jun 15, 2010 @ 11:52:35

    @Mischa I know I am cherry picking examples, but the reason I picked them was two fold. First, they were ones that were not taken down when they could have been and second, to show that not only were they not taken down but they were embraced even though they were violative of copyright. The point here is that these fan creations actually increase interest in the original work much as fan fiction creates interest in the original work – whether it is fiction or movies or television series.

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  24. Jane
    Jun 15, 2010 @ 11:53:41

    @S.L. Armstrong Sampling might have indeed been a better example, yet sampling is not actually allowed unless it is re-recorded. you can’t use the original sample. Further, you can’t license a sample so I felt like sampling didn’t quite get me to where I wanted to end up.

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  25. Ridley
    Jun 15, 2010 @ 11:59:47

    @Jane:

    It neither is or isn’t covered under fair use, and making a blanket statement about fan fic, declaring it all derivative rather than transformative, takes a chunk out of what fair use permits people.

    Once you start licensing shit, you get blanket C&Ds, and fan fic won’t survive long in the open. Pubs won’t be paying attention to whether or not something changes enough of the original, they’ll bully everyone who reuses any copyrighted material and see what sticks.

    For the record, I’ve never read any fan fic ever, so I don’t have a dog in this fight.

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  26. Jane
    Jun 15, 2010 @ 12:03:17

    @Ridley How is it “neither is or isn’t covered under fair use”. Transformative is part of the fair use argument. I’m not declaring it all derivative v. transformative at all. Introducing licensing doesn’t remove the fair use argument. Please see infra my references to the Caudiff Rose case.

    The fact is that you could issue C&Ds right now for a lot of fan fiction out there.

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  27. Mary Anne Gruen
    Jun 15, 2010 @ 12:03:43

    First…Yay, Spike! LOL

    I’ve done some fanfiction. From where I was sitting, the stories were always for the pleasure of the fans, often going in directions the original creators just didn’t choose to go in. I was always amazed at how many different kinds of stories the fanfiction writers came up with.

    Sure, there were some bad stories. But they usually got dropped by the second or third chapter because no one bothered to read or comment. Without encouragement, the writer usually moved on to other things.

    But there were a lot of really good stories too. And the best would often get archived at multiple websites and be entered into fan contests.

    I remember buying a book of traditionally published fantasy short stories when I was in the thick of the Buffy fandom and I ended up not finishing it because the stories just weren’t as original as the Buffy fanfiction I’d been reading. The published book had mostly re-writes of old plots, the way the movie world is currently recycling the A Team.

    Of course, writing original stuff isn’t necessarily the same as writing fanfiction. But I learned a lot from doing it. The fanfiction readers aren’t paying for your stories, but they still won’t stick around if they aren’t good.

    You quickly learn your strengths and weaknesses like a comic doing stand-up on Saturday nights. In my case I learned that my work was strongest when I invented new characters. I think because it was my way of bringing something fresh to the series.

    In the case of movies and TV, the rights holders often ignore it as long as it stays quietly within the fandom, and that includes the sale of fanzines. Get too big and loud and they’ll send out a C&D.

    In terms of writers, I think Rowling has pretty much set the pace. In the beginning of Harry Potter they were very strict about fan websites and fanfiction. Then they decided they didn’t look sympathetic trying to send 8 year-olds to jail. So, Rowling sent out a message via her lawyers that they considered fanfiction to be flattering and wouldn’t bother about it…unless it was of a pornographic nature. They said that since it was a children’s series, they didn’t want that sort of thing.

    To me, Rowling has it right. But I’ve seen on blogs and such that a lot of writers get furious at the very thought of fanfiction.

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  28. Ridley
    Jun 15, 2010 @ 12:26:32

    @Jane:

    I should’ve said it neither is nor isn’t *as a whole*. Some is, some isn’t.

    You could go around issuing C&Ds now, but there’s no reason to. Licensing fees would be the reason to.

    You can keep mentioning that case, but that’s not really how it would work. It’s not about fan fic authors trying to publish transformative works at a profit. They publish for free on community sites. Those fan fic websites aren’t going to resist C&D letters. It’ll be more like coffee shops and the PROs. They’ll decide that it’s not worth the cost.

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  29. Jane
    Jun 15, 2010 @ 12:33:09

    @Ridley I mention that case because you said fair use would be gutted under licensing scheme. I am arguing that fair use still exists under the same parameters and point to the Cardiff case as an example of how fair use exists for music even though there is licensing that exists. To say fair use would be gutted because of a licensing scheme is inaccurate.

    I understand that fan fic writers publish for free but that is primarily because of existing copyright holders turning a blind eye and not enforcing existing copyright laws. Would it be possible that enforcement would increase if a licensing scheme existed? Possibly. But it could also lead to the rise of some really innovative fiction that was edited, commercially available, and of much higher quality, not to mention totally legal with or without the permission of the existing rights holder.

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  30. kaigou
    Jun 15, 2010 @ 12:40:54

    Fair use exists on paper and in the minds of lawyers. In practical application, fair use is only defensible if you’ve got the money to defend it. It’s effectively gutted, such that you could certainly try to defend parody or other fair use, but when their lawyers are that much bigger than you… most people pay the out-of-court settlement rather than deal with it. This is why even the most egregious of C&D letters work, because fans (especially fans) just don’t have the money to deal with going to court to defend their fair use rights.

    So, sure, we can talk all we want about fair use, but it’s a pipedream defense in today’s world, for us regular folks.

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  31. Ridley
    Jun 15, 2010 @ 13:12:29

    @Jane:

    Would it be possible that enforcement would increase if a licensing scheme existed? Possibly. But it could also lead to the rise of some really innovative fiction that was edited, commercially available, and of much higher quality, not to mention totally legal with or without the permission of the existing rights holder.

    I find that doubtful, as where will fledgling fan fic authors find guidance as the community is wiped off the internet by C&D notices? I mean, even Penny Arcade took something off the web rather than challenge a legal notice, and they’re a pretty big deal.

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  32. TKF
    Jun 15, 2010 @ 13:23:37

    @Ridley: No, says the law. The copyright holder has a legal right to control “derivative works”. Fan Fic is by definition “derivative” (using the characters and or world the author has created), so it gets no protection under the fair use provision.

    Personally, I think most Fan Fic tends to increase the profitability of the original author's work, since the writers are clearly “super fans” of the author (or TV show, etc.), but I can also see why not all authors embrace it, nor do I think that there is any obligation for them to do so.

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  33. Persephone Green
    Jun 15, 2010 @ 15:23:02

    @Mina Kelly:

    The articles at
    http://opusculus.dreamwidth.org/4004.html?format=light
    and
    http://www.jimchines.com/2010/05/mzb-vs-fanfiction/
    are also good reading about the MZB case. It always comes out as the boogeyman of fanfic, and it turns out that MZB pretty much landed in a mess of her own making.

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  34. Persephone Green
    Jun 15, 2010 @ 15:30:10

    @TKF: Some fan fiction IS, in fact, covered by the law because it is parody.

    I once wrote a mashup of SNL’s faux Jeopardy! challenge, itself a spoof of Jeopardy!, and Harry Potter / HP fandom, complete with “Con Seannery” and “Al Extra Beck.” I don’t need to look up any subsections of the USC to know that it was both fan fiction and satire at the same time.

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  35. TKF
    Jun 15, 2010 @ 15:36:19

    @Persephone Green: Granted. But most of it isn’t, and I do believe that we had already covered that point.

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  36. illukar
    Jun 15, 2010 @ 18:12:33

    The videos you use as examples were not (so far as I am aware) for sale and I would be shocked if anyone paid any compulsory licensing fees for them. The vast majority of the mash-ups, etc, which go up on YouTube do not pay any kind of fee, any more than fees are paid for fanfiction.

    Use of someone’s work in a commercial environment (whether karaoke, commercial remixes, or background music for aerobics) attracts those fees. I struggle to find an example (outside the doujinshis) where there is money involved in fanfic which could ever possibly be worth the incredible administrative burden which would come with compulsory licensing fees for, say, fanfiction.net.

    Writers have other reasons to feel uncomfortable/comfortable with fanfic which tend to take precendence over whether they can make some tiny amount of money off it.

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