Why public domain

[pdurrant]

Originally Posted by JSWolf

I don't like the idea of perpetual copyright. I also don't like the US copyright being so stupid. Life+95 is because Mickey Mouse bribed the government to up the copyright time.

For current works by an individual, US Copyright length is life+70 years. Corporate works are publication+95 years.

Personally, I favour (publication + 50 years) or (lifetime of the author) whichever is longer.

This give ample protection for works written near the end of an author's life for any dependents, but also doesn't result in insanely long copyrights for works written at the start of an author's lifetime.

It was the UK copyright length at the end of the 1800s, but when the UK jined the Berne convention we switched to life+50.

In practice, I can see any possible reduction of copyright length below life+50. The life+70 we currently have is, of course, even worse.

[murraypaul]

Originally Posted by Alanon

In a way, they did. No one begins to write with a goal of producing a mediocre book that will have no impact?

So your idea of choice for the original author is that they could choose not to write any books at all? Or only write bad ones?
There is a difference between knowing that someone might do something you don't want and inviting them to do it.

Harry Potter, on the other hand, might not have turned into a wildly successful film franchise without a dedicated fan fiction community spreading the word.

Seriously?
What percentage of Harry Potter readers and viewers do you think have ever read any fan fiction?

[pwalker8]

When I started this thread, I pointed out there are two aspects of copyright, the first being actual copyright, i.e. the right to make copies of a book. The second is derivative works. They really are two very different things, that IMPO should have different protections. I'm fine with longer actual copyright periods (i.e. the right to copy a book) as long as the book remains available to the public, or some mechanism to make sure that an author gets a fair royalty on the book, much like the music industry has.

I would favor a much shorter period for derivative works, especially as the link to the original work becomes weaker and weaker. Making a LOTR movie has a much stronger link to LOTR than writing a book set in the LOTR universe, having an orc or hobbit in you D&D based adventure book is an even weaker link.

I ran across a somewhat interesting paper on fair use

http://jessicadickinsongoodman.com/p...yright-policy/

It's basically a senior thesis, but it's interesting in that it lays out many of the arguments we use, plus it has a very nice footnotes and bibliography as well as gives a pretty good history of copyright and some of the efforts to extend copyright.

The romantic view of authors mentioned in the thesis is the basis for extended copyright and the idea of copyright as property. The quote from Jefferson's letter about why what we know call intellectual property (he doesn't use the term) is not the same as property is of particular note.

[murraypaul]

Originally Posted by murraypaul

Seriously?
What percentage of Harry Potter readers and viewers do you think have ever read any fan fiction?

Someone has done an analysis of Harry Potter fanfic (based on only one site).
http://sxywu.com/hpff/

That suggests that the fanfic peak was between 2006 and 2008, after the release of the 6th book and the 4th film. (The first four films grossed $3.5B.)

The first Harry Potter upload to fanfiction.net, the biggest site, was in September 1999, around the release of the third book, and after Warner Bros had already bought the film rights.

[pwalker8]

Originally Posted by murraypaul

Someone has done an analysis of Harry Potter fanfic (based on only one site).
http://sxywu.com/hpff/

That suggests that the fanfic peak was between 2006 and 2008, after the release of the 6th book and the 4th film. (The first four films grossed $3.5B.)

The first Harry Potter upload to fanfiction.net, the biggest site, was in September 1999, around the release of the third book, and after Warner Bros had already bought the film rights.

That sounds about right. I suspect that Harry Potter fandom was/is much closer tied to the books than it was the movies. A lot of it was tied to speculation about future events. Once book 7 came out, I think that there was a pretty big drop in activity, though it might be that the fandom shifted in point of emphasis, and a lot of the early fans moved on to other activities. I still consider myself a fan, though I haven't really been to any of the Harry Potter fans sites since the last book came out.

[DNSB]

Originally Posted by Alanon

Harry Potter, on the other hand, might not have turned into a wildly successful film franchise without a dedicated fan fiction community spreading the word. And yet one word from Rowling could end it all.

An interesting claim. Do you have any evidence to back it up? I remember my children reading the books along with a good chunk of their friends and none of them read any Harry Potter fanfic. I do have memories of shepherding groups of them to the first 3 Harry Potter films

Hmm... just bounced a query off my daughter. 22 years after reading Harry Potter and the Philosopher's Stone, she hadn't read any fanfic and was only vaguely aware that Harry Potter fanfic existed. I suggested My Immortal as a starting point to ensure she never reads any more.

[Alanon]

Originally Posted by DNSB

An interesting claim. Do you have any evidence to back it up? I remember my children reading the books along with a good chunk of their friends and none of them read any Harry Potter fanfic. I do have memories of shepherding groups of them to the first 3 Harry Potter films

Hmm... just bounced a query off my daughter. 22 years after reading Harry Potter and the Philosopher's Stone, she hadn't read any fanfic and was only vaguely aware that Harry Potter fanfic existed. I suggested My Immortal as a starting point to ensure she never reads any more.

I wasn't really trying to make that sort of claim, since it's basically impossible to make it with any degree of certainty (note the word might). The beginnings of fan fiction are mired in early internet culture, and as of yet we have no reliable and exhaustive research in the development during those early days. Harry Potter fan fiction outnumbers any other by several orders of magnitude, to the tune of hundreds of thousands of stories and different false-flag fan edits passing off as original books. (The analysis cited in one of the preceding posts focuses on a small sample (less than 10% of the total number of stories), from 2003 onwards, and I'm not certain how that fact might affect the findings.) I had intended it to remain in the realm of potentiality, and not as any coup de grace argument for any prevailing thesis, I regret if that is the way it came off. I was trying to illustrate a point that I believe can be made today more vigorously than in the past, by giving a reasonably conjectural example of one of the most vibrant fan fiction communities as a potential "early-bird" example.

What we can claim to some degree of certainty is that in those early days Harry Potter fan fiction helped shape and popularise the creative community, especially since at one point Rowling did give her blessing, which few authors at the time had done. HP fan fiction was a notable participant that helped define the relationships and boundaries of an ill-defined new creative space. However, the crux of my point is really much larger than Harry Potter, and has to do with the fact that that point represents one of the defining moments in what will ultimately become our new media reality. That is a claim that is not thought about enough, but I think is evident today - communities of interest are key factors that impact what will be made or published. Hence all the rehashes on our media horizon, with ready-made dedicated communities and a potential to draw in fresh audiences with basic variations (often average by fanfic standards) on canonical material. Franchises today are being engineered through transmedial projects in order to grab as much attention of nativists in media forms as possible. That's why I find Harry Potter an interesting case study, because many of these elements exist in the franchise in ways that differ from Star Trek or earlier examples, that seem to point towards our present dilemma.

Oh, we shan't sully the fine footprint of this forum by discussing My Immortal? Talk about He-Who-Must-Not-Be-Named...

[hildea]

Originally Posted by pwalker8

Fair Use was originally a judge created exception to copyright that was later written into the law. As far as I know, the idea that fanfic would fall under fair use has never gone to court, and I suspect is on fairly shaky legal ground.

I'm not any kind of legal expert, so I've no idea whether fanfic actually counts as fair use. But since we're discussing not only copyright as it is, but as we think it should be: I think fanfic should be legal, at least as long as it fulfils the criteria listed by OTW.

Originally Posted by pwalker8

I think that where fanfic runs into philosophical problems is the idea of indirect profits, i.e. you have a website devoted to Buffy the Vampire Slayer fanfic. You don't charge people to read the stories, but you do have advertisement on your website.

I'm pretty sure this is more of a philosophical question than a real issue. I doubt there's that much money in advertising, especially as long as there's a huge, well run, completely free and non-commercial place for fanfiction at Archive of Our Own.

Originally Posted by Alanon

A thing to note, however, is that the premise of indirect profits cuts both ways. Fan fiction might make the original work more popular, and as a consequence, more profitable, yet no one seems particularly interested in having a discussion on compensating those folks? No one has put forth any justification for having hordes of people that popularise original work for free, that's somehow become a given.

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.

Originally Posted by Alanon

Harry Potter, on the other hand, might not have turned into a wildly successful film franchise without a dedicated fan fiction community spreading the word. And yet one word from Rowling could end it all.

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.

Originally Posted by Alanon

It's an interesting paradox - great fan fiction authors might do the work of entire PR teams, completely free of charge, and still be constantly at risk from litigation, and suffer the snobbery of internet trolls telling them their work is not original and is somehow near-worthless. I suppose if impartiality is too much to ask from our culture, we might at least hold some hope for impartiality in resentment.

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

[leebase]

I am on the "fanfic is wrong" side of the ledger. An artist should have control of their work.

What if....Donald Trump (or if you like him, pick someone you despise) decided to use your characters, your universe, to promote his campaign?

What if a pro-abortion group...or an anti abortion advocate....used your work to promote their agenda?

What if someone made your characters "gay" in a gay advocacy way? Or....did the opposite...but your characters and universe into a morality play against homosexuality?

Or....simply....what is you had plans and story ideas in your mind that you hadn't written yet, and someone else writes fan fic that gets popular enough that YOUR story plans are no longer compatible?

You simply have no rights to someone else's work. You just don't. Fan or not. It should be up to the rights holder to allow fan fic if THEY desire to.

[tubemonkey]

Originally Posted by leebase

I am on the "fanfic is wrong" side of the ledger. An artist should have control of their work.

What if....Donald Trump (or if you like him, pick someone you despise) decided to use your characters, your universe, to promote his campaign?

What if a pro-abortion group...or an anti abortion advocate....used your work to promote their agenda?

What if someone made your characters "gay" in a gay advocacy way? Or....did the opposite...but your characters and universe into a morality play against homosexuality?

Or....simply....what is you had plans and story ideas in your mind that you hadn't written yet, and someone else writes fan fic that gets popular enough that YOUR story plans are no longer compatible?

You simply have no rights to someone else's work. You just don't. Fan or not. It should be up to the rights holder to allow fan fic if THEY desire to.

Agree

[Alanon]

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.

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?

[leebase]

There’s a big difference between how a professor or book critic may read into your work themes etc. and another author taking your characters and putting his words into their mouths.

[pwalker8]

Originally Posted by leebase

There’s a big difference between how a professor or book critic may read into your work themes etc. and another author taking your characters and putting his words into their mouths.

This is the real problem with the "it's property and belongs to the author forever" crowd. Copyright keeps expanding outward and outward. You go from the right to make copies of a book to complete control over any character mentioned in the book.

As was pointed out in the thesis I linked to earlier, this mind set would mean that Virgil, Shakespeare and pretty much any author you have ever heard of would be guilty of copyright violations. J.K. Rowling? Yep, Nicolas Flamel was central to the plot line of the first Harry Potter book. He was both a real person and a figure of legend who was widely written about. The Philosopher's stone? Doesn't really exist, but the legend has been around since around 300 AD. I suppose she could have called him something else, but the knowledge of the legend of Nicolas Flamel was a huge clue to the reader and a major plot device.

[tubemonkey]

How many characters are there in the universe?

How many authors can use a philosopher's stone in their stories?

[leebase]

Originally Posted by pwalker8

This is the real problem with the "it's property and belongs to the author forever" crowd. Copyright keeps expanding outward and outward. You go from the right to make copies of a book to complete control over any character mentioned in the book.

As was pointed out in the thesis I linked to earlier, this mind set would mean that Virgil, Shakespeare and pretty much any author you have ever heard of would be guilty of copyright violations. J.K. Rowling? Yep, Nicolas Flamel was central to the plot line of the first Harry Potter book. He was both a real person and a figure of legend who was widely written about. The Philosopher's stone? Doesn't really exist, but the legend has been around since around 300 AD. I suppose she could have called him something else, but the knowledge of the legend of Nicolas Flamel was a huge clue to the reader and a major plot device.

There behavior would have changed. And we aren't talking about legends from the mist of time where nobody knows who created them.

If you write about Harry Potter....you are infringing on JK Rowling's copyright. And yet...people are STILL able to create endless wizard school books (and have)