I gaped at him. This is a man I know for a fact has violated none of the Ten Commandments, and that's a hard claim to make. And he's a patent attorney -- what's he doing violating copyrights?
"It's hard not to," he explained. He pointed to some printouts of articles on the Internet he'd brought with him to dinner. "Like those. I don't know if I had tacit permission to copy those." He shrugged.
Now, there's no way Brit Hub 1.0 is cavalier about anyone's intellectual property rights, so I explained my situation. I told him that I'd written a 5,000 word piece of "fan fiction" for The Uncrushable Jersey Dress, a website devoted to reviewing and discussing the books of Betty Neels, a now-deceased author of Mills & Boon romances. (By the way, that fanfic is up and you can read it here.) I explained that I'd used the names of the principal characters, the basic plot and some small amounts of dialogue from one of Neels's romances, Fate is Remarkable. (I'm prepared to defend the use of the dialogue as permitted under the "fair use" doctrine; the rest of it is dodgy, at the very least.)
So -- which is my fan fiction: infringing or sufficiently original? What I did was to rewrite the same romance, but from the hero's perspective. Sufficiently original? I dunno. At least with the The Wind Done Gone case plausibly on my side, I have what's known in the law as "a straight face" argument, meaning one you can make with a straight face and not feel embarrassed or ashamed or crack up laughing.
I'm not worried about getting hit with a judgment for the statutory damages under US copyright law. (In reality, the most that would happen would be that I would get a cease & desist letter, and my fan fiction would be removed as if it had never happened. So go read it now!) Here's four reasons why I'm unlikely to be hit with a lawsuit:
- I'm not making any money off my fan fiction. I'm not selling it, and there isn't much of a revenue stream for the nice Bettys at the The Uncrushable Jersey Dress.
- I'm not cheating the copyright holder(s) out of any revenue. If anything, the blog, and my contribution to the blog, may induce a tiny incremental increase in sales of Betty Neels books, and specifically Fate is Remarkable, the one I'm infringing.
- The author is deceased. Yes, the copyright survives, and in theory all the author's rights and interests are passed along with the copyright. But there is an undeniable interest the author has in her characters, her "babies." Betty Neels could have come along and said, "I don't like that you're writing about my characters," and that would be a strong moral argument in favor of my ceasing & desisting. For her heir(s) to come along and say the same thing may be a valid legal argument under US copyright law, but the moral argument is diluted when the heir(s) and I are all in the same position vis a vis the original characters: they're not our babies.
- My fan fiction respects the values that Betty Neels included in her books. She's famous for keeping her characters out of the bedroom before marriage, and keeping the bedroom door shut after marriage. If I'd written anything racy, that might have made my fan fiction more original, but it would have violated the tone and voice of Betty Neels' writing.
I'd like to think Betty Neels would have been amused (or perhaps bemused) by my tribute -- but if it had upset her, I'd have taken it down. Because, while I'm willing to "borrow" the names and plot to write that tribute, I would never argue that I was entitled to do so, or that no infringement took place.