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Aerden [userpic]
On Fan Fiction and Copyright

I just read this in baka_kit's journal:

Patrick Nielsen Hayden ::: (view all by) ::: April 25, 2006, 01:56 PM:

Janni asks:

For a time, there was a notion that if a writer was aware of fanfic, and didn't pursue action, they were in danger of losing rights to their work. I see less concern about that now, but is this still an issue?

You probably see less concern over it because people are gradually realizing that it's not true.

You can (under certain rather hard-to-achieve circumstances) lose a trademark by failing to aggressively defend it. Somehow this got warped into a widespread belief that you can "lose your rights" to a literary creation if you don't sic a lawyer against every transgression of which you become aware. In point of fact, under current US law, it's extraordinarily difficult to alienate a copyright.

(You can--again, under very hard-to-achieve circumstances--wind up limiting your ability to collect damages. But tolerating a 12-year-old's web-published fanfic does absolutely no damage to your ability to, for instance, sue a book publisher that pirated your work. Rather, to limit the damages you could collect from that publisher, it would be incumbent on them to show that you'd been engaged in a persistent pattern of letting comparable book-publishers repeatedly pirate your work, and the bar to them establishing any such thing would be roughly 5,271,009 times higher than "you let someone write fanfic on the web".)

Bottom line: It's not true.

I remember that this used to be the reason given in Pern fandom for why we had restrictions on things--why we were not allowed to, for example, have silver or purple dragons, etc; that if we did, and she didn't object to it, that would harm Anne McCaffrey's copyright. The notion was that, if you let people pervert your work, you lose the right to call it your own because you haven't defended your work against those who would alter it. At least, this is how I always understood the argument to go.

I have to say that it being more a thing of protecting your work against piracy by other publishers makes a lot more sense. Now me, personally, if I were to introduce purple dragons who fought Thread, I suspect that I would call my alternate universe something other than Pern, because McCaffrey has been very firm about the range of dragon colors on Pern, and I think that's her right; it's her world. If I want to break the rules, then I'd better create my own world and not use hers. But at least it's nice to know that if someone does want to have purple (or silver) dragons in a Weyr, that the prohibition against it is simply a matter of MacCaffrey's wishes and not a matter of possible damage to her copyright.

I think a large part of what has made this fear of copyright loss diminish is the fact that J. K. Rowling has done (as far as I know) nothing whatsoever to control fan fiction based on her works. She has done nothing at all to curb it, yet she retains her copyright with no difficulty. I think this real-world example, more than anything, has allayed the copyright concern. I admit, when I first heard that Rowling had decided not to wage a war against Potterverse fan fiction, I was pretty shocked, considering some of the truly disgusting stuff that is out there. But even the disgusting stuff has not harmed Rowling's copyright in any way, and people can see that.

So now, I think, the fans--and writers--are aware that it is just a matter of the author's choice as to how much control he or she wishes to exert over his or her own work. Apparently, that's all it ever was.

Current Mood: contemplativecontemplative

Even the very concept of intellectual copyright as protected by law is such a strange, strange concept. Part of me would really love to study the area (and may end up doing so - not a bad area to get into financially, either!).

I think the relevant point above is that the issue is one of damages. I don't think anyone except Anne McCaffrey could bindingly decide that, as per your example, purple dragons exist in Pern. However, it should be protectable in law so that only she and those she allows can profit financially from Pern.

Rich--Yep, that's exactly it.