Romance, Historical, Contemporary, Paranormal, Young Adult, Book reviews, industry news, and commentary from a reader's point of view

Free Riding, Free Expression, and Familiarity in Genre Fiction

My first post in this series on free speech issues focused on the line between fully protected critical speech and less protected commercial speech, specifically in regard to paid-for positive and sockpuppeted reviews. This post is on the economic concept of free riding and its substantial but often silent impact on intellectual property issues. If it seems like we’re backing up to the First Amendment and core protected speech, we are, in fact, taking the scenic back roads so that we can visit some of the lesser-discussed issues that often get confused and mistakenly identified in discussions of what constitutes “free speech.”

Free riding is a relatively simple concept that has incredibly complex applications in many fields, including intellectual property, which is what I’m going to focus on here. In short, free riding is the act of benefiting from the labor and investment of others, sometimes that of a commercial competitor. Free riding is everywhere, from the discount snack store that opens next to a movie theater to take advantage of the snack-seeking traffic the theater attracts, to the fiction author who chooses a writing pseudonym that will get her shelved next to a bestselling author, thereby potentially increasing her visibility and sales. Porn films are notorious free riders, with works that not only utilize tweaked versions of mainstream titles, but that also often parody those titles, because parody is a fair use exception to trademark and copyright infringement. When Saint Martin’s Press announced the release of Kieran Kramer’s Loving Lady Marcia, the book’s title, cover, and reference to the “House of Brady” generated a significant amount of attention from people who wondered about its possible relationship to the “Brady Bunch” television series. I certainly bought and read the book because of that link, hoping for a spoof or satire of the famous fictional family. At the very least, the author and publisher were free riding off of the popularity of the Brady Bunch series, using the fame and popularity of the series to generate interest (and, one must assume, sales) in Kramer’s less well-known work.

As the term itself implies, free riding contains a judgment about the person or business profiting from the popularity of another. Note this review of Diane Capri’s Don’t Know Jack, the first book in her “Hunt for Reacher Series.” Despite the direct endorsement of Jack Reacher creator Lee Child, the very first review contains this comment:

What also bugged me what that the author is riding Lee Child’s coat tails. I know she and Lee are (according to her) friends. She’s stealing Child’s characters for her own selfish use and is killing them in her amateurish writing. Can’t she do something on her own and not steal Child’s characters. She just wants to be on the Jack Reacher bandwagon, and milk it for what it’s worth.

Despite the ubiquity and, what some argue is the economic necessity of free riding, it provokes what legal scholar David Franklyn calls an “intuitive” sense of unfairness and a “desire to punish free-riding” by some courts hearing trademark and copyright infringement cases. This sense of unfairness can come from a perception that the labor one puts into a creation has a value that should be legally protected, even though the law explicitly rejects such a rationale, instead focusing on the work itself, whether that be a book (expression of ideas and reproduction/distribution of the text protected in a limited way by copyright) or a movie franchise (protected in a limited way by trademark against dilution, confusion, and other ways in which the brand is harmed or weakened). As Supreme Court Justice Brandeis noted in his dissent to the foundational case on the issue of news sharing:

An essential element of individual property is the legal right to exclude others from enjoying it. If the property is private, the right of exclusion may be absolute; if property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions – knowledge, truths ascertained, conceptions, and ideas – become, after voluntary communication to others, free as the air to common use. International News Service v. Associated Press, 248 U.S. at 250 (1918), reprinted in “Ideas and the Public Domain: Revisiting INS v. AP in the Internet Age,” by Andrew Beckerman-Rodau

More than seventy years later, Justice O’Connor wrote:

The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. Feist Publications v. Rural Telephone, 499 U.S. at 340, 349-50 (1991), reprinted in Beckerman-Roadau

I’m trying not to delve too deeply into the extremely complex legal issues, but they are important to this discussion in that when people call out free riding, they often do so with accusations of theft and the labor=value rationale. When the now-infamous “Nora A. Roberts” and “James A. Patterson” books were posted online for purchase, Roberts’s own statement on the incident mentioned the years of labor that went into building her name, as did many of the comments directed at the alleged “poachers.” However, despite the sympathy we might have for this argument, even if Roberts of Patterson have trademark protection on their names, such protection can never – and is even not intended to – prevent all free-riding. There are forms of infringement that are, in part, free riding, but free riding itself is not illegal, nor uniformly undesirable.

In fact, free-riding is one of the ways we, as readers, find books on sites like Amazon. Check out the way Amazon tags Carolyn McCray’s Plain Jane – the URL appears like this: Plain-Jane-Patterson-style-thriller-ebook. Authors free ride, too, when self-publishing or advertising their own books. Some may tag their book with more famous author names to benefit from the association, and in an extreme case, Kobo has a listing for a book called No Easy Day: A Fictional Account of the Mission that “Killed” Osama Bin Laden by Conrad Powell, an obvious attempt to free ride on No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden. Pseudonyms closely related to authors known for certain types of books have been reported, and we routinely see titles invoke more famous works, like many of Julia Quinn’s books, from It’s In His Kiss to Mr. Cavendish, I Presume and The Duke and I.

A number of scholars note that free riding can be an economic good, not only because it can increase competition (the lifeblood of a free-market economy), but also because it can facilitate and promote adaptation and change (think about how technology has altered the way we consume news online, for example). As Andrew Beckerman-Rodau argues, there are times when a free-rider’s entry into the market might “ruin” a competitor, merely because the new competitor is adapting better to changing market conditions: “Attempting to limit such ruinous consequences of competition is problematic because it will typically protect the status quo at the expensive of delaying the inevitable introduction of new ideas and technology into the marketplace.” But entities like the Associated Press are pushing against such logic, going so far as to file suit to protect control over so-called “hot news.” I find this case particularly interesting, not only because of the obvious implications its outcome will have for the way news is reported and shared online, but also because of the way AP’s efforts are inadvertently mocked by the Google results for the case, which rank the paid content story on the suit first, followed by a scraped version of that story at The Passive Voice. This is where one hopes that the courts will be willing to hash out specific circumstances in which scraping is and is not legally permissible, based on the type, amount, and purpose of the material scraped.

Beyond questions of how information flows online, though, and how free riding is embedded in almost every aspect of our commercial experience, online and off, we need to be aware of the concept in regard to our own habits within a book-based community. As I said earlier, free riding is a substantial factor in how books are organized in a retail environment, and how they are packaged, publicized, and advertised. Some free riding is intentional, like the use of a familiar title or the creation of a brand in an author’s total work. Other free riding is inadvertent or serendipitous, as in a reader’s “if you’ve read X, you might like Y lists.”

However, there is also an element of free riding that is even more central to genre fiction, especially Romance, and that is the use of certain seminal texts, myths, and archetypes in the construction of the genre itself. How much of Regency Romance, for example, free rides on the romantic popularity of Pride and Prejudice?

I want to reiterate that free riding is not the same as infringement, although some free riding can rise to the level of infringement, either on a copyright or trademark. I made some of my earlier distinctions, however, to make the point that many of the things that are complained about by readers and authors (“rip-off” books and similar author pseuds) are no more opportunistic than some of the elements that we so aggressively defend in the genre. For example, fan fiction is a form of free riding, and many authors regard it as verboten (and some fan fiction is likely infringing); however, myriad mash-ups and fan fiction novels and adaptations/extensions of Pride and Prejudice are published each year under the Romance moniker, and they are not condemned in the same way. Or what about Colleen Gleason’s Gardella Vampire series, which she promotes as inspired by Buffy the Vampire Slayer? How many paranormal Romances were built on the foundations erected by Christine Feehan? Or the light/lite Historical Romances fashioned after Julia Quinn or Amanda Quick?

Beyond all the ways in which free riding generates commercial competition among authors and books, it is also part of the creative core of the Romance genre, weaving a fabric of familiarity and intertextuality that is often essential for the reader who reads the genre in search of a particular experience, often an experience she wants repeated to some degree across different books and authors.

For me this is a critical point, because it highlights one of the most interesting things about free riding, namely that its ubiquity is eclipsed by the negative judgments attached to it. Because free riding is so often associated with terms like “free loading” or “rip off” or the like, we tend to notice it in instances where someone or something is being exploited in an unsavory way. And yet its benefits – economically and artistically – are just as (if not more) plentiful, even though we do not note those instances as examples of free riding. And because we all benefit from more free competition in our commercial products and more creative freedom within that context, I think it is imperative that we hold ourselves back from condemning certain things out of hand, of using terms like “theft” and confusing the labor that we assume goes into the production of a product or a reputation with the value that the product or reputation has for a consumer/reader. The distinction that Justice O’Connor makes between the Constitutional mandate for IP protection and the rights of the author/creator is critical here – art, like the free market, has a public interest that is inextricable from its growth and vitality. Creative monopolies, like economic monopolies, are undesirable for everyone beyond those in the superior position of the monopolist.

At the same time, though, there are unsavory and ethically questionable incidents of free riding that may not rise to legal infringement. Like the “Nora A. Roberts” and “James A. Patterson” situations – the intentional use of those names to exploit the fame and reputation of the original authors is extremely problematic and potentially harmful to both readers and authors. The point is that context matters, and that the line between “good” and “bad” is not often very bright at all. Most often there will be a mix of benefits and detriments, and sometimes the detriments will be both unavoidable and uneven in terms of their effects. The Book That Shall Not Be Named may ultimately fall into that category. Clearly it free rides on another incredibly famous and profitable series and may ultimately outsell its inspiration. Is that a good or bad thing? That depends on one’s perspective and position – for readers, it can mean a burgeoning of new books, which will, in turn, benefit some other authors, as well. For the original two authors, it creates competition, but it might actually benefit both, as the popularity of each series brings increased attention to the other.

While the effects of free riding are not always superficially obvious, its importance is unequivocal: if we want the greatest opportunity for freedom of creative expression and commercial competition, we need to recognize the critical role that free riding plays in our book communities and consider its benefits and detriments with care and circumspection.

 

isn't sure if she's an average Romance reader, or even an average reader, but a reader she is, enjoying everything from literary fiction to philosophy to history to poetry. Historical Romance was her first love within the genre, but she's fickle and easily seduced by the promise of a good read. She approaches every book with the same hope: that she will be filled from the inside out with something awesome that she didnʼt know, didnʼt think about, or didnʼt feel until that moment. And she's always looking for the next mind-blowing read, so feel free to share any suggestions!

18 Comments

  1. Amy Kathryn
    Sep 25, 2012 @ 09:57:53

    Coming from a research science background, this position on free riding makes perfect sense to me. Our emphasis is on being the First to Publish. We are required to provide all the building blocks necessary for someone to repeat the work and hopefully expand upon it.

    I do think there will always be a blurry line between inspiration and infringement as long as there are people who look for the quick and easy way but I would not want try to make a hard line at the expense of innovation.

  2. Shiloh Walker
    Sep 25, 2012 @ 10:26:52

    You always make me sit here and scratch my head and think too hard, Robin.

    One thing about the book that shall not be named, and the author that shall not be named… (and the many others who do crap like that to make a buck without giving deference to the original creators) Even though the roots of the book aren’t a secret and anybody can find out about it, now that’s it so big, she tries to act otherwise. I would have had more respect for her, and maybe been more likely to at least pick the book up if she’d been upfront about it.

    But when she’s asked in big interviews where she got the inspiration… she isn’t honest about it. She doesn’t give credit where credit is due.

    That’s the thing about taking inspiration for me. All writers find inspiration from something. Fan fiction writers do it a little different and most of them stick to their rules of not profiting and giving credit to the content creator (I’m not in the fan-fic world, but I think that’s the gist of it, correct me if I’m wrong).

    But all writers find inspiration in something. My fairy tale series is a mish-mash of Buffy the Vampire Slayer and the Brothers Grimm books and I make no attempt to say otherwise. Writers live and breathe by what we see around us, read, hear… it’s our fuel.

  3. Courtney Milan
    Sep 25, 2012 @ 12:16:46

    I’m inspired by a hundred different things when I write–things that I see happening, books I read, people I’ve known.

    So while I think I agree with the statement of this article, I have a hard time with the words “free riding.” I’m not sure that’s the vocabulary I would use. Am I free riding on Robin’s discussion piece by posting this? In a sense, yes–I don’t have to lay out the argument in detail on my own, or think through the tangled implications.

    But I think that the vocabulary mistakes what is happening: we put things out there to contribute to the world as we see it, as part of a conversation. It would make me deeply, deeply sad to think of human interaction as the sum of everyone’s individual contributions. The vocabulary “free riding” presupposes that everything someone says belongs to them, lock stock and barrel, and that the law allows others to come along.

    And I don’t see that. My words belong to me, but the conversation they are a part of belongs to everyone. It is utterly horrifying to me to see things like “people are free riding on Jane Austen” — sure, if you want to put it that way — you could say that we’re free riding on the invention of the alphabet, words, grammar, the novel, limited third person point of view, star-crossed lovers… All these things that are fundamental building blocks of fiction, were invented by other people.

    But that discussion assumes that those things belong to someone. And they don’t. They’re an infinite source of lego building blocks that are not subject to ownership. You want ‘em? Take ‘em. Do what you want with them. Share what you have, and maybe you’ll add your own building blocks in. You can’t free ride on something which is not owned.

    I object, vehemently, to the notion that the things I list above are owned by anyone. I object to it as often as I can, because I think it is the cause of so many of the great intellectual property sins in our world.

    And I could go into much greater detail, but it’s connected to something I feel very, very strongly about: Authors own their words. They do not own your experience of them. If people read my books and talk about them and have a good conversation, I don’t own that. I may have been the catalyst for it, and I love that, but it is not MINE. Asserted ownership over the collective experience of something that someone else wrote is wrong.

    There is a point where you can cross over from free use of concepts and ideas that are jointly owned to parasitic slavish copying of someone else’s expression. And at that point, I think the use of the word “free riding” is acceptable.

  4. LJD
    Sep 25, 2012 @ 12:19:18

    (It’s The Duke and I, and The Viscount Who Loved Me, for Julia Quinn)

  5. Ros
    Sep 25, 2012 @ 12:37:12

    The free riders I utterly despise are the Jane Austen published-fan-fic authors. It’s shameless. The worst kind is the ‘sexed-up’ books which include small chunks of original work in amongst Austen’s own prose. I know Austen’s long out of copyright but I feel like there ought to be some kind of protection for classics against work which demeans the original. Maybe not legal protection, just natural respect for a genius. I’m never reading PD James again after she jumped on that bandwagon.

  6. Janet
    Sep 25, 2012 @ 12:45:28

    @LJD: Thank you!

    @Courtney Milan: I don’t disagree with the vast majority of what you say, EXCEPT that free riding necessitates ownership. It’s premised on the labor theory, which is one of the reasons it has not been embraced as an enforceable legal principle, and one of the things I think it gets at is the way people often value labor as property and valuable on that basis. If that’s what you mean — that people *feel* ownership over something, then I would just say that my whole argument is trying to push against that sensibility in the context of creative competition in a commercial context (thus O’Connor’s quote).

  7. Moriah Jovan
    Sep 25, 2012 @ 12:47:35

    @Courtney Milan: I see “free-riding” in this context as The Author Who Shall Not Be Named changing the characters’ names and a few details about a beloved book, selling it as her own, and denying its provenance.

    That said, I DO work hard to build a world and the characters that inhabit them, and I DO feel that I OWN that work. No, I don’t own readers’ experience with my work, but I would be furious if someone took my work and slapped a damn near transparent glamour on it and called it theirs in toto AND THEN went on to so vigorously defend their copyright on it.

  8. Jane
    Sep 25, 2012 @ 13:58:49

    This is what I call free riding: http://www.amazon.com/gp/product/B008PHZIXY

    Colleen Hoover’s Slammed: 25 things you must know [Kindle Edition]
    Magdalene Fraser

    This eBook includes 25 Essential facts about the Bestselling ‘Slammed’ by Colleen Hoover.

    You can read this before or after ‘Slammed’ to get the mood of the book, the reviewers, critics, admirers and to find out what all the fuss about this book and why it is in the bestseller lists.

    This edition is updated for both US and UK readers.

  9. Ann Somerville
    Sep 25, 2012 @ 16:52:10

    I have no problem with freeriding, as you call it. If the tie in is approved or legal, then fine. If the author wants to create a pastiche, homage, parody or work ‘inspired’ by their favourite book, film, genre or whatever, then the real issue is how well they carry it off. Your review of Loving Lady Marcia makes it clear it hasn’t worked well either as an AU Brady bunch story or as a romance. Other homages, like Clueless or Bridget Jones’s Diary, work better, both as standalones and also as referencing the original books.

    My bright ‘never to be crossed’ line is pull to publish fanficion, because the issue isn’t freeriding, but freeloading. Essentially fanfiction creates a contract wherein the fannish community offers its attention, promotion, editing and general support to a writer in exchange for the piece. The explicit terms of this contract is that neither side shall profit financially from it.

    Pulling a piece to publish, and doing no more than filing the numbers off, breaks that contract, thumbs its nose both at the letter and the spirit of agreement, is disrespectful of the acknowledgement that all fanfiction operates under – that we, the fanficcers, do not own the concepts and characters created by other people and are simply playing with them out of affection – and, worst of all, creates bloody horrible books.

    If I can only enjoy your m/m story about advertising if I realise it’s Stargate fanfiction with the names changed, then you’ve failed. Your book won’t work for people who’ve never seen Stargate, and those who have, are more than likely to either think you’re evil for breaking the moral code of fanfiction, or that you’ve done a rotten job with beloved characters.

    (If, on the other hand, you take your fanfiction and rework the bejaysus out of it so that the connection with the original work is not just invisible but unnecessary, and anyone can enjoy it without knowing what inspired you, then more power to your arm. That’s actually what inspiration should do.)

    My biggest gripe about freeriders are the hypocrites. James pretending her Twific isn’t Twific – and then unleashing lawyers on people wanting to use the book as a theme for parties, complaining about people not being allowed to use other people’s creations. Diana Gabaldon whining that having fanfiction written about her books is akin to be raped, while admitting that Outlander started off as Dr Who fanfiction. A pair of famous brothers decrying the lack of creativity in and theft of fanfiction while making substantial sums out of novelisations of TV shows and movies. (Novelisations being the most obvious and least original form of freeriding out there.)

    I don’t believe fanfiction is illegal, and I don’t believe it should be, so long as it doesn’t damage the legitimate profits of the original creator. (All the evidence is that it increases sales dramatically.) Even claims that fanfiction has harmed an author’s right to continue with her own creation, as in the infamous Marion Zimmer Bradley case, turn out to be far more murky and complicated than as first presented.

    I think fanfiction is great, and great fun, and people who write it can be damn good authors. However, I won’t buy repurposed fanfic that violates the fanfiction ethos, or support authors who exploit and then crap on the community which got them started.

  10. Sunita
    Sep 25, 2012 @ 19:54:38

    One of the aspects of this post that I really appreciate is that “free riding,” as a concept and type of behavior, is treated as something that has both good and not-so-good manifestations. The accepted conceptual definition of free riding is value-neutral. Some types are fine, while some result in social problems. When a lot of people overuse a common-pool resource to the point of pollution or extinction, that’s bad. But if a major company spends a ton of money to get legislation passed that helps the everyday person who doesn’t have the money or connections to contribute, that’s a good thing.

  11. Susan
    Sep 25, 2012 @ 20:49:44

    @Ann Somerville: I seem to be sadly unversed in popular fanfic since I only recognize one of your examples (aside from Meyer/James). I know that Gabaldon said she started writing Outlander after seeing a cute guy in a kilt named Jamie who was a time traveler’s companion, but her product was so different from the original inspiration that I didn’t realize it constituted fanfic as such. You could have never watched an episode of Dr. Who and still read Outlander without a problem, right? (Honest question here–I guess I’m just fuzzy on what constitutes true fanfic. Some works seem more obvious than others to me.)

  12. Alix
    Sep 25, 2012 @ 21:05:59

    @Ann Somerville:
    That’s a really good point about fanfiction and the contract. I have encountered m/m-stories that were fanfiction where only the names were changed. Those stories pissed me off–massively. I’ve been in fandom long enough that I have a passing acquaintance with most fandoms and recognize them unless we’re talking about really obscure stuff. That’s a good way for a writer to get on my Don’t Buy-list, even if the writing is fine.

    I never quite realized that part of the annoyance was the broken contract that you described so well. And yes, definitely. Thank you for putting into words what so far for me was only a mess of unhappy feelings and irritation.

    It’s different when the writer takes the time to rewrite most of a story, does their own world-building, and gives the whole thing their own spin and style, so that only die-hard-fans might recognize that the character might resemble Bodie and Doyle a bit. That’s inspiration for me and that’s something I can easily live with.

  13. Liz Mc2
    Sep 25, 2012 @ 22:24:52

    I really appreciated this post and the concepts it introduced me to. Some of the examples of free riding here bother me (legal or nor, for reasons I can explain or not) and some seem good. It’s helpful to think of it as a range or spectrum, not as universally negative. And obviously people aren’t going to agree about exactly where specific examples fall on that spectrum.

    As Courtney Milan noted, though, it’s hard to think of some of these examples as pure free-riding. It’s not as if the author of an Austenesque Regency, or of fanfic, does *nothing*. Maybe some of those examples are more like drafting/slipstreaming in a bike race, where you rely on someone else’s work to ease things for you in some ways, but also have to work hard yourself. It’s not a perfect metaphor, because in a bike race a teammate is deliberately letting you draft off them, which isn’t often the case in your examples. (it’s not the same as hopping the bus without paying, which is where free riding comes from. You still have to pedal).

    I feel like Harry Potter here: I understand why Fifty Shades (I’m naming it!) is a prominent example in everyone’s mind, since it’s such a huge best-seller and of course its provenance ties it to these questions. But feeling about it is so polarized now that using it as an example can obscure the interesting nuances of the discussion.

    Thanks for giving me so much to think about.

  14. Kaetrin
    Sep 26, 2012 @ 06:52:43

    @Jane. I looked up the example you gave. It’s 11 pages and she wants $2.99 for it? Ouch.

    Thx for the post Robin. Very thought provoking.

  15. home
    Sep 26, 2012 @ 06:58:09

    Spot on with this write-up, I actually suppose this web site needs way more consideration. I?ll probably be once more to read way more, thanks for that info.

  16. dick
    Sep 26, 2012 @ 09:56:42

    Was Christina Dodd’s take-off on Sabrina in “In My Wildest Dreams” free loading or free riding? And does the answer matter?

  17. Stumbling Over Chaos :: That week when linkity was almost manageable*
    Sep 28, 2012 @ 19:20:58

    [...] “Free riding, free expression, and familiarity in genre fiction.” [...]

  18. Merrian
    Sep 30, 2012 @ 00:15:50

    My friend Kim loaned me a book because I had shared some spooky Alice in Wonderland images I found on the internet. They were from a Jonathon Miller production. “Subsequent Performances” is fascinating reading for me in the light of the fanfic discussions we have been having.

    “Subsequent Performances” by Jonathan Miller is about the role of the director in Theatre. Published in 1986, it is a reflection on the ‘afterlife’ of literary work; on the relationship between traditions (eg. Shakespeare’s plays) and individual talent (the director’s take). The book looks at the director’s role and place creating interpretations in-between the text/author and the performer.

    It seems to me in the light of this DA discussion; it offers another way to think about the relationship between original work and subsequent work. One of the things Miller talks about is the ‘difficulty of extracting from either a dead or a living author the meaning of the play he [sic] has written’. I think fanfic is often an attempt to create or give or document the meaning of the original work for its readers. Miller also talks about writers never fully being aware of the meanings that are present in a work they make. He suggests that original authors are in a privileged position in relation to their work but are not the sole arbiters of what it means. He talks about plays ‘being emergent objects that can only be realised in many subsequent performances’. In this light I am also interested in the IASPR12 tweets which have mentioned analysing romance novels in conjunction with their comments and reviews on Amazon. In the past only the book could or would have been discussed.

%d bloggers like this: