Saturday, March 20, 2010

For Laura & Kat: Copyright, Mashups & Who's / Whose Right?

Laura Kinsale & Kat (Book Thingo) have been having a conversation on Twitter about copyright.  Kat claims that she'll never write the ranty blog post that will allow them to express their ideas in longer, more comprehensive comments.

I thought I would take care of the blog post for them; they're on their own in leaving the comprehensive comments.

The issue is whether mashups (works of fiction that lift significant portions of an original work by one or more other authors and mash them together to make something new) is prohibited by copyright law.  Or, to put it another way, if it's okay to do it to Jane Austen because her works are in the public domain, why is it not okay to do it to, say, Laura Kinsale, whose works are all still protected by American and (through the Bern Convention) international copyright laws.
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).
And that's just the Ps!

Okay, Laura & Kat -- have at it in the comments section.  Enjoy!


  1. Just to clarify, our twitter convo originated with this article:

    That article covers a lot of ground, just like your post! From my angle, the twitter (attempt at) discussion was more about the essence of originality and creativity, rather than copyright law. CR law is both straightforward and vague, which is actually quite useful since it means each potential infringement can be judged individually.

    I was trying to convey how I feel that the very challenge of trying to find my own way of saying something--even if it is the same thing or idea that someone else already said beautifully--that is what actually opens and drives my creativity.

    And I think that mash-ups and remixes would tend to smother that creativity, because a quick cut/paste just side-steps the process of figuring out what you yourself really think.

    I don't think fanfic is a bad thing, per se. It's sort of like a personal fantasy. It's like what teenagers do, dream of putting themselves in a story.

    But when it comes to creativity, it seems to me that it must stifle rather than encourage it. Which is why I suggested just changing the name of a character. Once you change the name, you will be writing about your own vision, instead of someone else's.

    I used Allegreto from SH as an example. He's my character, but he's also an idea, in a broader sense. He's a beautiful male Italian assassin. Allegreto, my character, is afraid of plague, afraid of falcons, loves and hates his father, is terrified of going to hell. These things create his story, and his story creates those aspects of him. MY story of Allegreto, which would not and could never have existed if I had not personally written it.

    Change his name, and all of those things fall away. The writer must recreate their own beautiful male Italian assassin, and that will drive them to think about the character they want to create. They don't have my template handed to them. They have no choice but to become creative and fresh and original.

    It's my belief this is more valuable to our culture than a re-hash of my character in someone else's work. It is more important that people push themselves to do the hard creative and original work with an idea than it is that they can easily cut and paste for a mash-up.

    The internet has made many valuable things possible that used to be impossible. Cars also made many things possible that used to be impossible. And yet it is now easy to idle in the parking lot waiting for a space rather than walk, and that is simply laziness.

    I do not believe the simple ability and convenience of doing something makes it useful. There is a push to romanticize the technical abilities of the internet, and it morphs easily into rationalizing and excusing an avoidance of the hard challenges of true creativity.

    We do things for fun, or because they make life easier, but then that fun is used as a reason to change the way things work at a fundamental level. Suddenly "words belong to everyone," "we all own music, it belongs to our culture" and similar notions are held up as deep insights into a new world. The claim is that they will make our culture better, etc. But I don't think so; I think they encourage our dullness.

    Anyway, it's easy to ramble about this. Thanks for a longer space, but I'll quit boring everyone now! I'd certainly recommend Jaron Lanier's book, You Are Not A Gadget.


  2. Laura -- You're right! That New York Times article (here's a clickable link) has a lot of great stuff. I've already blogged about how Internet (and particularly Twitter) discourse moves people to the extremes of an argument (here); according to the Times, Cass Sunstein (a famous Constitutional law scholar) has already written that book. And you and I share a tremendous admiration of Jaron Lanier's book You Are Not a Gadget, so my bias is pretty clear.

    At the same time, it's been great getting Kat's perspective. I may disagree with her, but I'm wiser for paying attention to what she's saying. Uh, Tweeting.

    I guess the reason I immediately thought about the differences between copyright law and patent law (apart from my being a lawyer, that is) was that Kat's argument seems so reminiscent of the argument in favor of a shorter period of monopoly in the instance of patents. The notion that exclusivity hampers innovation is not wrong. Kat's all for innovation; perhaps she favors the approach David Shields took in lifting 618 excerpts from other authors and making a book out of them. Presumably he feels the synergy he got from using other people's words is better than if he tried to write something entirely in his own words. Patchwork made publishable.

    Kat's point -- and tell me if I get this wrong, Kat! -- is that without legal access to those 618 excerpts, Shields' book is impossible and we're better off with his book than with the lock-down of those 618 excerpts.

    That's a viewpoint that favors the users of copyrightable material (readers, viewers, listeners, etc.) over the monopoly rights of the artist. Maybe it's my age, maybe it's my legal training, maybe it's my desire someday to have an original work of fiction be published, but I like the idea of the artist retaining ownership over those things that would not exist without that artist's creativity.

    And here's where the comparison with invention seems helpful, even outside the courtroom. An invention is, by definition, a mash-up of things already found in the world. You can't build a better mousetrap without a mouse, and without the concept of a trap. But you can write a book about a world with no mice, no traps, no vermin, no pestilence, no Bubonic Plague. That's the power of fiction: it literally creates a world other than our own.

    It may be that no other inventor could or will come up with this better mousetrap if you hadn't, but given that there will continue to be mice and the reasons to trap them, it seems pretty certain someone someday will invent a better mousetrap.

    Even the most repetitive novelist (and I'm currently reading a lot of Betty Neels, so I know from repetitive) is writing a completely unique work of fiction every single time. Each novel is a new and unique world; it's DNA may be similar to its predecessors in the series, but it is still a unique work.

    (first of two...)

  3. (second of two; my apologies for writing too much!)

    There's a concept in patent law: standing on the shoulders of giants. Thomas Edison was a giant, for example, and things we take for granted today from lighting to the phonograph (and through it, digital music) had to build on Edison's genius. But none of those inventions were original works of art subject to copyright -- they all fall into the category of innovation as invention.

    Walt Disney was a giant in animation, both as an artist and as an inventor. He pioneered the concept of animation depicting naturalistic movement of characters' arms & legs. (He described the movement of characters' limbs prior to his work as "rubber hoses.") The innovation was copyable; the creation (i.e., his actual character Mickey Mouse as seen in Steamboat Willie) was not.

    Which is precisely where your point about fans renaming characters comes in. It wouldn't protect them from copyright infringement, but it would be the first step to conceiving of a character as their own.

    And that brings me back to David Shields (and possibly to Kat) -- clearly some people aren't as interested in developing their own original character as they are in playing with one of yours. (Paper doll characters? Barbie doll fiction?) I dunno. I don't see the appeal.

    Maybe Kat can help?

  4. When I think of mashups, titles such as 'Pride and Prejudice and Zombies' spring to mind. I haven't read any of the paranormal mashups of the classics which are currently flooding the market, but the very idea of them makes me shudder. Perhaps I'm too much of a purist, but meddling with the classics just seems wrong in my opinion.

  5. Sarah: I don't disagree with you (I'll leave some wriggle room in case I actually read and enjoy one of these "Frankenstein's Monster" style books), but of course once a text is in the public domain, even dopey stuff can be done to it. The theory is, I guess, that the market will vote on whether the resulting book is too stupid to buy & read, or not. P&P&Z would appear to have been a profitable gamble. Go figure.

  6. I apologise for not participating in the discussion after my flood of tweets!

    "And that brings me back to David Shields (and possibly to Kat) -- clearly some people aren't as interested in developing their own original character as they are in playing with one of yours. (Paper doll characters? Barbie doll fiction?) I dunno. I don't see the appeal."

    Magdalen, I think you get the spirit of my argument. To clarify, though -- I'm not arguing that every mash-up or fanfic work is innovative. But I'd argue that some are, and I'd also argue that the current framework for copyright doesn't encourage collaboration (and articulated some of the problems in your post).

    Also let me clarify that my opinion on these issues probably isn't as fixed as my tweets might have suggested. I go back and forth because I sympathise with the plight of authors and, of course, I want them to earn a good living.

    (To be continued, because I think Blogger is spitting chips at the length of my original comment!)

  7. That said...

    I love the idea of P&P&Z. Executed well, I'd have bought the book and bought copies to give to friends who I know would love the concept. I loved the first chapter excerpt I read; unfortunately, a few trusted readers told me the rest of the book is a disappointment. Such a shame! Now I can't even use it as an example for discussions like this!

    Anyway, there's something to be said for reusing text. For example, take You can read all the remixes free on the site, and each remix uses parts of the original to varying degrees. I'd argue that this is innovative work. And yet what writer would risk the legal threat of doing something similar without outright permission from authors--most of whom, I assume, wouldn't be inclined to agree? (The article that Laura Kinsale links to has a link to Luc Sante's review of David Sheilds' book, and he talks about sampling as a musical equivalent. I have to tell you now, 'Ice, Ice, Baby' was

    So what I'd like to see is more flexible rules for copyright. Tie it to royalties and attribution if you must, but giving the author TOTAL control over what happens to the text years after it was released can, I think, be a detriment. I think it also fails to acknowledge the work's dependence on the audience. If no one had read Harry Potter, JKR wouldn't be enjoying the fruits of her labour. What if she decides, for some reason, that she no longer wants any of her books in print? Don't you think the literary community loses something if that were to happen? I do, yes.

    The other idea that's been germinating in my head is the concept of originality. We make the assumption that a work that borrows no words or characters directly from someone else is 'original'. And yet in the romance reading community it's not uncommon to hear readers complaining about an author who seems to write the same characters, just with slightly different details, or subgenres that seem to have the same sorts of plotlines, characters, etc. I'm inclined to argue that just because the exact words on the page have never been put together in the same way before doesn't mean that the work itself is wholly original.

  8. Kat (aka BookThingo:

    There's what seems most advantageous in the broader realm of creativity, then there's the economics of the situation, and finally, there's the law as it's designed to balance the rights of the author against the interests of the reader and general public.

    You may be right that there has been a shift in the broader realm of creativity in favor of mashups and fanfic, and the law has not yet caught up. And your idea of recompensing the author automatically for sampled material -- both in music and in "the world of letter" -- might address the economics of the situation.

    But I'm not sure you are realistic in thinking that the value added to the readers and general public by sampling, mashups and fanfic has sufficiently tipped the scales in favor of amending or altering the laws protecting the rights of authorship.

    I heard on the radio an interview with a guy who "creates" music by sampling a huge amount of other stuff. He made an album recently that took two years from start to finish. Basically, two weeks to decide what to sample and how (the equivalent of writing all the songs), and two weeks on the back end mix and to make the tape. The other 23 months were spent getting all the licenses and releases.

    That's your precise situation: Because this guy uses music that is obscure or by artists not yet famous, pretty much everyone said yes to his request. It just took a lot of time. Maybe he might have lost patience after a year and given up. Then we (the public) would have lost the opportunity to experience his particular genius. That would be a shame, and the law shouldn't stifle his creativity.

    But maybe J.D. Salinger wrote a dozen novels in seclusion and in his will instructed his executor to burn them all. He's entitled to do that, both morally and legally, because anything else is indentured servitude. Because if our desire to read his writing trumps his desire not to write, where's the line? He doesn't have to write anything, but if he does he's obligated to share? He isn't obligated to publish what he writes, but if he does publish it, he can't restrict the ways people want to slice and dice his words? He can restrict some uses of his words, but not sampling, say.

    I think the conservative approach would be to ease the limits on fair use. But I suspect getting to use a few more paragraphs isn't to satisfy the pro-sampling faction.

    There is a tension there -- the author who wants to publish (and thus share her work) then turns around and says, but I don't want to share my work in this other way versus the sampler who is inspired by the work the author shared to create something new out of the author's own words, but can't because of copyright laws.

    In the dispute between the author of the original work and the creator of the derivative work, the law (and, I think, morality) are on the side of the author.

  9. Kat (aka Book Thingo:

    About your other point, namely, where's the line between "really original" (the way, say, Harry Potter first was) and merely kinda sorta original (which Barbara Cartland's 573rd book most likely was*) -- the law is a bit soft on this. There is a way to distinguish complete originality (and thus have the work be copyrightable) versus merely obvious (typing the alphabet over & over would be silly, but it would also not be copyrightable, unless is was done in such a way that it was deemed art).

    But when people sue JK Rowling or Stephen King claiming that the more famous authors "stole" the plaintiff's original work, it's usually not the words or text that's at issue -- it's the characters, the plot, etc. JK Rowling has successfully defended the originality of those element in her Harry Potter books. But if someone wrote a books about a witch going to some school for witches and growing up in the process, a court would hold that there was insufficient similarity for the earlier author to claim copyright infringement. The notion of a fictional world in which a character with magical powers goes to a school to learn how to use those powers is too obvious to be protected. Stick a Dementor in there, and you may have some legal problems; some things are so unique to Rowling's work that to use the name AND the concept will get you in trouble.

    To get back to your point: a novel is copyright protected as an original work of fiction just on the basis that those 70,000 words were never used that way and in that order before. It can still be a crappy novel, with clich&eactue;d characters we've all seen a million times before. Or it can be the newest & freshest thing you've read ever. The words are still copyrighted. The extent of the copyright on the characters, plot, etc., depends on the originality of the author's work.

    In the case of the hackneyed, over-worked trope, it could be all the author can defend is the copyright in the words themselves. Her characters have all been used before, the plot is so over-used it's a joke, and so forth.

    But then that's not likely to provoke anyone to do a mashup, sampling, or fanfic, so the tension never arises.

    *Wow -- I thought she'd written 350 books. Nyuh-uh. 664, according to Wiki. No way she wasn't just using some Barbara Cartland computer program at that point: hair color, plot set up, different names. It's paper dolls in text form! She could have sued herself for copyright infringement, but who'd have cared?

  10. "He isn't obligated to publish what he writes, but if he does publish it, he can't restrict the ways people want to slice and dice his words?"
    My short answer is no (although maybe with some limits and conditions). I understand the law doesn't see it this way, but I happen to disagree with the law.

    "But I'm not sure you are realistic in thinking that the value added to the readers and general public"
    I don't see that there has to be an overwhelming value proposition. Creativity isn't usually measured by how much value it realistic brings to the public relative to effort or, I don't know, proportion of successful attempts. It's more about trying, creating, experimenting until something of value emerges.

    I suspect I'm influenced by other professions in which lifting of words is actually encouraged. In many organisations intellectual capital belongs to the company as a whole, not to an individual, and a lot of great things can happen when people are allowed to, as you said, build on the work of others.

  11. Kat and Laura:

    Well, I'm about to test my own legal analysis. I'm a huge fan of The Uncrushable Jersey Dress and when they graciously allowed me to "review" my favorite Neels romance, Fate is Remarkable, I was thrilled.

    But the Bettys (as the two creators of The Uncrushable Jersey Dress are known) do such a great job of combining amusement, affection and appreciation to their reviews that I was afraid anything I wrote about Fate is Remarkable would be a poor substitute.

    Then it hit me. Betty Neels never used the hero's POV much (her heroes tend to be the vaguely omniscient sort; one senses that too much time inside their heads and the reader would Know All far too soon), but Fate is Remarkable is a book that could have used much more of Hugo's POV.

    So I thought I would write my "review" in the format of Hugo's story. Which means I used three things: the characters' names, the basic plot, and some small snippets of dialogue. Which is fan fiction. And which may violate the copyright.

    (I will confess here that I would LOVE to be contacted by counsel for the copyright owners. Betty Neels died in 2001, and she only had a daughter. So presumably her daughter or any grandchildren inherited the copyrights to all her books. I would happily cease and desist if it meant I could ask, respectfully, some questions...)

    There is a chance that the copyright owner(s) will ignore my (alleged) infringing fanfic. And, legality aside, have I harmed the copyright owner(s)? Ms. Neels herself can't object or feel robbed. In fact, she might have been charmed. Her heirs might be charmed.

    I will say this -- I knew precisely what I was doing as I was writing it. (My fanfic isn't up yet; I'll provide a link when it's posted.)

  12. Kat: Yes, as a general rule your employer "owns" any intellectual property you generate as part of your employment. So, inventors working for General Electric sign over their patent rights to GE (my dad was the supervising attorney for GE's Research & Development lab back in the early 60s) and the copyright in speeches I wrote for the Assistant Commissioner of the New York State Department of Health back around 1990 belong to New York State.

    But I think that's an argument against your point. Because you are paid a salary, your work belongs to your employer, which allows its other employees to use that work. The employer permits that synergy; the other employees have no right to that work independent of the employer's permission.

    And if you aren't arguing that the added value to the public from having open access (or more open access, as I know you aren't advocating for the complete repeal of the doctrine of copyright) outweighs the individual creator's right to control access, then I don't see how your argument works.

    Other creators want to use an author's protected work for their own creative ends. Because of that, perhaps they feel that their creative work should be available to others (a sort of creative form of "paying it forward"). But why do the secondary creators' interests trump the original creator's interests?

    The only rational reason would be to say that everyone (the public) is better off with both the original creative work AND the secondary creative work. So if the original creator's ownership and control stifles the secondary creators' ability to create, we all lose out.

    Without bringing in public good, all you have is one group (the secondary creators) holding out their hands saying, "Gimme," to a second group (the original creators) without any compelling reason why the original creator should comply. And in a contest between the rights of the original creator and the secondary creators, I think there's no contest: original creator got to the idea first and owns the product of her own creativity.

    But then I had to go and violate Betty Neels's right of ownership to some names and a plot... and I've got no excuse. Except that maybe we're all a little bit better off with my fanfic. (And how arrogant is that?!)


Hi. This is a moribund blog, so it gets spammed from time to time. Please feel free to comment, but know that your comment may take a few hours to appear simply as a result of the spam blocking in place.