I thought I would take care of the blog post for them; they're on their own in leaving the comprehensive comments.
The theory of copyright law is that an original work of creativity -- a book, a sculpture, a painting, a movie -- belongs to the artist/writer and thus can't be used, copied, or exploited for another's profit until the copyright expires. (Copyrights are currently in force for some number of years after the artist's death -- basically, the number of years is still being determined by Walt Disney's heirs. Some copyrights generate a lot more money than others.) The rationale is that the artist or her heirs should get the financial benefit of her work for a nice long time, but not forever; there is benefit to the rest of us to have works come out of copyright and enter the public domain.
There are exceptions to the copyright laws, most notably for fair use. I could, for example, quote Laura or Kat's tweets in tiny doses -- but I can't replicate here their entire convo. That would be, in effect, stealing their words.
But I am allowed to steal their ideas. Laura feels, for example, that the copyright laws are right to restrict other people's access to her words and characters. A mashup of Shadowheart would be wrong and illegal. Kat, on the other hand, values mashups and feels that copyright law should be more like other intellectual property law, e.g., patent law, which allows the inventor a monopoly on her invention for only a handful of years because to extend it stifles innovation and progress by others.
So -- is a mashup plagiarism? Or is it innovation that benefits the rest of us?
Here's where I take advantage of the Fair Use Doctrine and quote Kat's very last tweet on the subject:
One last thing...I love authors who take time to write their books. They're a dying breed in romance.Now, on its face, Kat's complimenting Laura Kinsale on taking time (years, even) to write a novel. But if you think about that in another context, it's an appreciation of authors who take time to ply their craft. Why assume that an author's creativity (whether employed quickly or slowly) begins to "belong" to society as soon as it's published? Yes, readers have their own interpretations of a novel's theme, characters, and effect, but none of that -- even for the most devoted Potterite or Twilighthead -- gives them any extra rights to the copyrighted material than, say, those available to the dustiest academic reading the dreariest tome on macroeconomics.
You can love a book to death, but you still can't then pick over its corpse. Devotion (or extreme antipathy) doesn't give you any right to steal the words.
Oh, but what about the characters? Fan fiction is a real close call. JK Rowling has stopped fans from appropriating the characters in the Harry Potter books to, say, write an unauthorized biography, and I happen to know that television writers get paid whenever a character they created is used in a later episode, even an episode they themselves didn't write. But fan fiction -- the creation of an original work of fiction that builds off an existing (and copyrighted) work of fiction by exploring the characters in new situations -- is a close call. Here, Laura suggests the fan fiction writer should change the characters' names; she believes the fanfic writer will actually end up with a better piece of work as a result. Maybe so, but that rather misses the point of fanfic.
Now, I'm no IP lawyer, so don't take anything I say on this subject as a legal opinion as to the limits of what may and may not be done with copyrighted works of fiction. In fact, if you really want to know what your rights are -- as an author of original works or as a fanfic author -- hire a lawyer, But in the meantime, I found a pretty comprehensive discussion (in the form of FAQs) here.
Not surprisingly, I'm on the side of published authors of entirely original works. I can see the appeal of fanfic, both of writing it and sharing it (it's the sharing that gets you in trouble; if you scribble stuff in your notebook at home, no problem but when you post it to the Internet, you run certain risks), but for the most part I believe authors of original material are entitled to copyright protection. I also believe that protection is appropriately different from the monopoly granted by patent laws. A successful patent pays more sooner, and is right to expire sooner, in the balance of benefit and incentive for the inventor vs. benefit to the industry in the form of additional invention that builds on the patented device. With writing, the benefit to society of having a work enter the public domain is deemed less valuable than innovation and progress, so the law allows a hundred years or more to pass before the copyright expires.
Here's the one thing that neither Laura nor Kat mentioned: What about the publisher? What about out of print books? Why does contract law trump readers' rights to make a legal purchase of copyrighted material? Here's what I'm talking about: Take your favorite book of all time, let's say it's Shadowheart by Laura Kinsale. Let's say it's out of print. Let's say Amazon no longer lists any used copies. Let's say there's a SH fan club, and as the fan club blogs, comments, tweets, and otherwise publicly discusses SH, more people who've never read SH find they can't get a hold of a copy.
So they write a nice note to Laura and say, in effect, "Let us publish SH digitally; you'll get all the proceeds." Only Laura maybe signed a contract with SH's publisher that restricts all further publication of SH. She owns the copyright, sure, but she doesn't own the rights to publish. We can say she needed a better lawyer back when the contract was signed, but sometimes authors have to take the contract as it's offered. (This is particularly true for an author's very first book(s) -- and it's happened that completist readers can't get a copy of an early book by their favorite author for this very reason.)
Now we have an author, Laura, and readers (the fan club) with no legal way to make the precise transaction the copyright laws were meant to protect. I don't have an answer for this situation, but I'll just say it worries me more than the fanfic that's being stifled by copyright laws.
Here are a few of the topics I'm aware I'm not discussing here:
- Piracy, and its role as a straw horse in the digital publishing debate.
- Parodies and the line between a parody and fanfic (i.e., just because I gush instead of mock, I'm infringing the author's copyright?)
- Plagiarism, subconscious copying, and what can & cannot be copyrighted (e.g., plots, place, people).
Okay, Laura & Kat -- have at it in the comments section. Enjoy!