Quote:
Originally Posted by hildea
In my opinion, that doesn't work as either legal or moral defense of fanfic. After all, the same argument is used to defend piracy, and the same counterargument applies: It's up to a creator to decide how they want to do PR. More generally: You (generic "you") shouldn't do someone an unasked and possibly unwanted favour, and then act as if they owe you something in return, beyond (at most) a polite "thanks".
Also, if this argument was the basis of the legality of fanfic, a creator could remove that legality if they didn't want the PR. To take one example: After the lengths Marvel went to to straight-wash Captain America and Bucky Barnes, I strongly doubt they are very happy about the existence of more than 46 000 fanfics about the romantic relationship between those two, ranging from devoted husbands to tentacle porn.
|
I only mentioned it in the context of the
philosophical issue pwalker8 raised. Personally, I agree that it's a weak legal argument. Morally, though, I have much more trouble disentangling the situation from other issues that crop up in my mind, particularly those tied to this problem of "reciprocity". One such tangential aspect I've always found troubling is the notion of auctorial control. For example, in this discussion, we've all (I include myself in this camp, despite my advocacy for fanfic) pretty much asserted and defended the position that authors have rights to direct, control and protect their creation. However, it's long been established that, once published, authors cede at least some (interpretive) control over their work.
In other words, few people today would claim that an author has any right to impact or direct how his work is read, interpreted, studied or remembered. Basically, from the moment a book is published, what the author meant to say becomes irrelevant. Books written as recently as a couple of decades ago are now frequently denounced as racist screeds or some-such in countless academic articles. Criticism, even of the non-scholarly vein, is also a mostly non-commercial, derivative, and creative work, that we've given people complete freedom over. Yet we seem to believe that the fiction/non-fiction barrier is still so firm and intransigent that it somehow justifies completely incongruous treatment of very similar phenomena? While this kind of talk would also not stick in any court, I can't help but find it morally... sticky.
To tie in to a later post, Donald Trump (well, in this analogy it would literally be
anyone but him) wouldn't need to risk it with fan fiction. All he would need to do in order to exploit or pervert someone's creation for political gain would be to write a lampooning literary, artsy essay / postmodern meta-referential pastiche and publish it in an academic journal. We're not talking rebuttals, or close reading, or structural analyses, but free-flowing essays, the kind being written today by far too many "scholars". These pieces incorporate many literary tropes and encroach on fiction. As they mostly are fictitious, it does make some sense. With blunt sarcasm, you can distort any dialogue, remove context and nuance from any paragraph, as long as you add some references at the end, you can still call it an essay and not fanfiction.
To be clear, I realise the link is tangential, but I have a tendency to conglomerate moral claims into first principles, or at least proximal principles. Unlike legal standards, which can be clearly delineated, moral issues can only be outlined through these prevailing undefined codices that we seem to live by. I'm not trying to mount an attack against academic freedom, or to claim that authors should control these aspects as well. It simply seems morally suspect to me to target (non-commercial) fan fiction as damaging the vision of authors, so damaging that they are entitled to eternal copyright, when such damages and misuses can occur and are occurring in front of our very eyes, perpetrated with impunity by partisan actors completely legally, and with our full moral support simply because they happen to be produced in a different setting and a different genre.
To me, a wilful misrepresentation by some hack of something
they believe I've said would sting much more than some tentacle porn. Both are gross distortions, but the latter was at least produced for someone's pleasure. One cannot control what people think, what they believe, or how they experience things. Yet if you decide to mold any of that experience of literature into fan fiction, that's problematic. As a culture we've institutionalised protections of essential freedoms of expression, just not all of them, apparently?
I don't now, maybe I've just been in a curmudgeonly, "elegiac" mood since learning of Harold Bloom's death and am rambling like the worst of Bloomers. I don't have any answers, I could be completely off on this, would love to know what you folks think.
Quote:
Originally Posted by hildea
Since the legality is unsettled, we can't be sure that a word from her could do that, legally. And it would be a huge risk for her to do so, potentially leading to lots of negative publicity. A small fanfic site or a commercial one might well choose to comply to avoid hassle. But Archive of Our Own would put up a fight, both legally and in the court of public opinion.
Archive of Our Own and Organization for Transformative Works have done a lot change to this, both with regard to the vulnerability and the snobbery, especially with their recent Hugo award:
https://www.vox.com/2019/4/11/182924...t-related-work |
I don't think anyone is willing to fully test the legal waters and create a precedent. With the article you mentioned, and things like
Fifty Shades, fan fiction is moving from subculture to the spotlight, an that will provoke some litigation sooner or later. Of course, I don't think we'll ever be free of porn fan fiction, anymore than we are free now of the comix scene or smutty expressions in any other media, old or new. In a way, that, too, is a part of the legitimising process?