How Authors Perceive Copyright

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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11 Responses

  1. It’s interesting to contrast his views with those of Charlie Stross, another well-known science fiction and fantasy author, as posted on his blog: http://www.antipope.org/charlie/blog-static/2010/05/faq-fanfic.html . (And to forestall one obvious question: the domain name “antipope.org” was an a “drunken mistake”, not a conscious decision: http://www.antipope.org/charlie/old/antipope.html)

  2. Bruce Boyden says:

    He’s not correct: copyrights are not abandoned through failure to enforce. (There’s some doubt whether that even happens with trademark, or whether it’s mostly just a convenient excuse for an aggressive litigation posture.) It’s possible that this is a transmogrification of the doctrine that injunctive relief might not be available if you sit on your rights, or if it would be futile; damages would still be available regardless, however.

    In any event, I agree Dave with your implicit suggestion that there may be an interesting story about *why* Martin is not correct, akin to why the ranchers of Shasta County believed it mattered for tort law purposes whether the range where an accident occurred was enclosed or not. The stories Martin tells have the advantage of being nice, simple, clear rules (e.g., no fan fiction!), which is pretty much the opposite of how fair use and derivative works rights work.

    I’m not terribly familiar with the Bradley story, but based on the description above I don’t even think the lesson Martin draws there is correct. The fan created an unauthorized derivative work, although it seems to have received some retroactive blessing. In the Bradley situation as presented above, I think the extent to which she herself would be precluded from writing her own version of the story would depend on (a) how general or specific the similarity was to the new matter created by the DW author, and (b) the scope of Bradley’s implied license to the DW author to use her original work. I think an eminently reasonable implied license in such a situation would be reciprocal. (There is no way that joint authorship could be imposed on Bradley absent her consent; at most it would be an infringement case.) So the lesson *I* would draw is either (a) don’t read fan fiction (which is a subset of documenting the creation process generally), or (b) if you encourage it, make the scope of your permission clearer [you can write fan fiction as long as you don’t sell it, and you agree that I have a nonexclusive license to use any fiction you write that’s based on my stuff].

  3. Luckily for Martin, his series doesn’t hinge on his knowledge of copyright law. I can see why he’s concerned about fan fiction, though — it’s been so long since his last book that someone, somewhere no doubt feels impelled to come forward and pull the sword from the stone and tell us what is going to happen next. It’s been so long that I now am going to have to go back and read the whole series again if Martin ever manages to finish the next book. What happens to Daenerys? Do I care anymore? (Do I even really remember who she is?) If I can mix copyright and trademark metaphors like the master himself, it’s been so long since I was reminded of him that all of his goodwill is long used up and his mark is so weak it is barely recognizable — it can hardly crawl out of bed to start coffee in the morning, let alone defend itself from copycat upstarts. I only wish there was good fan fiction to fill in the gaps . . . .

  4. Shmuel says:

    It also might be noted that the Marion Zimmer Bradley example is not as clear-cut as Martin would have it; while the above was MZB’s version of events, it ain’t necessarily so.

    (Also see the main body of that entry for why Martin’s comparison of Burroughs and Lovecraft doesn’t hold water.)

  5. Miriam A. Cherry says:

    Maybe GRRM should just finish the series, rather than posting blog posts or giving interviews. Am I curmudeonly? Yes, but that’s what exam grading and waiting for the book to be released (vainly) does to me.

  6. dave hoffman says:

    Great comments all. Robert, don’t kid yourself. You care about Daenerys. In fact, you probably have a theory about the identity of her second and third betrayers.

  7. PrometheeFeu says:

    My bet: That book will never be finished. I read the rest of the series some time ago and quite honestly, I’m not sure I would actually read it if it came out.

    Aside form that, I think GRRM is drawing an incorrect conclusion. Sure, if fan fiction is allowed, it may potentially some day mean someone writes your novel before you are able to write it yourself. But first, that possibility is very low. Second, fan fiction keeps fans coming back for more. Which means it enhances the chance of your next book selling. This is especially try for someone like GRRM whose final book we have been waiting for years. If there had been some good short stories written about his world in the meantime (perhaps by fans) then I might still be interested in the story. But since he’s done little to nothing to keep fans engaged in the meantime, they trickle away which I would guess will substantially lower the sales on his latest book.

    Furthermore, I would like to point out how from a public perspective, the fact that GRRM can ban fan fiction is not advantageous at all. Look at the story he tells: Someone invented something new which had obvious value. GRRM was allowed to ban the creation of all such valuable works. Does that reall “promote the Progress of Science and useful Arts” ?

  8. Kaimi says:

    Damn – I was all ready to start on my fanfic masterpiece, A Twilight of Ice and Fire.

    Daenerys is starting class at a new high school, and she’s not sure about her classmate Jaime. His golden hair just seems to sparkle. But her romantic interest is also piqued by the gruff and hairy Jorah — they call him The Bear . . .

  9. Kaimi says:

    By the way, one interesting note from Mercedes Lackey’s website:

    News: Concerning Fanfiction:

    As you folks already know, my agent, Russel Galen, has in the past been opposed to fanfiction. However, he is also Cory Doctorow’s agent now, and Cory is a persuasive little gnome.

    As a result of this, I am happy to announce that we are officially permitting fanfiction to be licensed as derivative fiction under the Creative Commons umbrella.

    What this means is: NO, you cannot make money on it. NO, you cannot self-publish a fanfiction novel of Valdemar (or any of my other stuff) and try and sell it on Amazon. And NO, I still am not going to read it, because I am already so far behind on my research reading I barely have time to read that.

    But YES, you may write and post away, folks, so long as you license it as derivative and under Creative Commons. If it is anything other than PG-13, please take all the proper precautions to stick it somewhere that innocent souls won’t be corrupted. Do not scare the children or the horses. Have fun!

    So, at least a few formerly recalcitrant authors are becoming more flexible on the idea of fanfic. Hell, some professional authors are now writing fanfic (well, sort of) for money.

  10. Jacqueline Lipton says:

    An interesting recent article on the legality of fan fiction and remixes, with particular reference to fair use and social norms is: Steven A Hetcher, Using Social Norms to Regulate Fan Fiction and Remix Culture, 157 Penn L Rev 1869 (2009). Another good recent article on this is Ed Lee’s “Warming Up to User Generated Content” 5 Illinois L Rev 1459 (2008) – available at: http://www.law.uiuc.edu/lrev/publications/2000s/2008/2008_5/Lee.pdf
    And of course Rebecca Tushnet has done a lot of writing in this area.
    I’ve been looking at websites run by vampire fantasy authors recently and they seem to vary on their understandings of fan fiction. For example, Anne Rice (Interview with a Vampire etc) explicitly notes that she does not authorize fan fiction, presuming it is in her power to do this under copyright law, which is open to question. Charlaine Harris (Sookie Stackhouse/True Blood) doesn’t allow fan fiction on her own website because she finds it uncomfortable that others use her characters, but she doesn’t specifically attempt to ban others from writing fan fiction.