I’ve found this passionate discussion about fanfic fascinating and informative. And I have to say that some of your well-considered, heartfelt arguments have made me seriously reconsider some of my long-held views on the subject.
In particular, a comment yesterday from “Morgul” really got me thinking…
“Would you be so offended if, in one of your episodes one of the characters died of cancer, a fanwriter chose, instead of writing the Slash and MPreg you are so fond of mentioning, to write about that person when they realised that they were going to die? Or perhaps go AU and make that person live a year longer, exploring what that character would chose to do with that time?
Because, if you had an episode in which a character died of cancer, you’d get truly Godawful stories that would tell how true love will conquer all and be boring, but you would also get some amazing stories about how the character’s family coped with that loss, or even how the nurses and doctors that looked after the character reacted. You may have to sift through dirt, but there are gems out there.
That’s what we’re trying to get across to you here. The people who are taking the time to tell you what they think are the people that truly care about their fandoms and would never desecrate them like the people who use fanfiction as a form of masturbation.”
I think he’s right. I think my exposure to the fanfiction community – first with Seaquest and later with DM fanfic – didn’t show the field, or its writers, in the best light, establishing and strengthening my negative views.
I went back today and found that GUNSMOKE fanfiction I stumbled on some time ago… and yes, it’s very good and, as a GUNSMOKE fan, I enjoyed reading it very much.
In retrospect, I believe I have made some unfair generalizations about fanfic and the people who write it. But that’s not to say I don’t still have some strong objections to fanfic.
Defending fanfic on the basis that it’s not copyright infringement is silly. It is infringement, and it violates the intellectual property rights of the author/creator. You know it. I know it. Any reasonable person knows it. While the issue of copyright infringement/violation of intellectual property has strong ethical and artistic importance to me, it’s obviously a meaningless issue to those who write fanfic, so I won’t try to argue that any longer. We’ll have to agree to disagree on that score.
We can debate, however, the other arguments/defenses for fanfic, for which there is no clear-cut right-or-wrong —
a)it’s a way to learn how to write, a stepping stone to writing your own, original work.
The arguments here have persuaded me can be… but I still believe it’s a mistake for an aspiring writer to spend too much time and effort on fanfic… that they are better off, and will learn more, and will develop their own voice, by putting that effort into original work. It might be a useful exercise for a 12-year-old, but I think anybody, particularly an adult, serious about becoming a professional writer should concentrate their efforts on original work. That is the only way you will truly develop the skills you need to succeed (and, I believe, any aspiring or professional writer should respect the intellectual property rights of their fellow authors).
b) it’s the only way to get real feedback of your writing from a wide audience of people.
I’m unpersuaded. Personally, I don’t think this is a valid argument at all. There are many, many ways to get feedback on your writing without having to do fanfic.
c) it’s a way to explore aspects of the shows/novels/movies that the film-makers/authors don’t.
This was something I didn’t fully appreciate until Morgul’s post. My view has been far too influenced by all the slash/mpreg/hurt-comfort/etc. sludge out there and by strident fans who think their fanfic is the canon the TV writer/producers should be following. But his post opened my eyes.
d) it’s a way to celebrate and enjoy shows/novels/movies that you love with other fans.
I can see the point. .. though I think you can enjoy & celebrate a show/book/movie without writing and disseminating stories based on them.
e) it’s an expression of appreciation to the film-makers/authors
I suppose it is when you’re doing the things “Morgul” was talking about. But not when you pervert the authors intentions with garbage like mpreg, slash, hurt-comfort, etc. That isn’t flattery or appreciation. It’s aggressively offensive.
f)it’s self-policing…when fanficers violate the canon and write out-of-character stuff (mpreg, slash, etc), they get slammed for it.
I’m not persuaded… there’s far too much of the swill out there to believe “self-policing” is at all effective.
g)it’s harmless fun, give us a break.
On this, I have to say… you’re right. I’m a schmuck.
h)It’s a challenge to the ‘business model’ and thereby a political act.
This is a popular rationalization among all kinds of copyright infringers and product pirates and I simply don’t buy it.
[Stares] — okay, I take it back. You were actually paying attention. Go you.
A few points (No, I’m not going to reopen the debate again). Morgul is actually a she. But then again, the Morgul Lord was a he. So that’s not exactly your fault.
f)it’s self-policing…when fanficers violate the canon and write out-of-character stuff (mpreg, slash, etc), they get slammed for it.
I’m not persuaded… there’s far too much of the swill out there to believe “self-policing” is at all effective.
Sadly, you’re right. The original statement made was true — the authors get told off. However, this isn’t generally publically advertised, so yes, maybe one author stops, but another ten rise up to take her place.
I’m unpersuaded. Personally, I don’t think this is a valid argument at all. There are many, many ways to get feedback on your writing without having to do fanfic.
This is true. If you want to be a professional writer, then yes, it’d be a very good idea to look for a different way to get feedback. If, however, writing is your way of relaxing for a couple of hours every night, it’s /easiest/ to get feedback by writing fanfic. And as it’s relaxation, you don’t necessarily /want/ a detailed breakdown of what you did wrong. Sometimes you really need to hear ‘This is great! Write more!’. Even though it’s rarely spelled that well.
But I’m glad we’ve brought this little fiasco to a peaceful close — a happy ending will look /so/ much better in the chronicle.
*applauds*
Thank you for listening to us, and having all this end happily. And we at the PPC promise that if you find another icky DM slash/mpreg that is poorly written we’ll come and get rid of it for you.
Oh, and one more thing: I’ve never used fanfic to make a political statement, except one along the lines of ‘Down with the Feanorians!’.
Signing off, finally, after an eventful few days,
D. Kelly, fanficcer, debater, original writer, and all-round nuisance
Well, glad to see we’ve reached SOME meeting of the minds. (Though if you’re interested, I answered D.Kelly/Huinesoron’s challenge and wrote out a short original story, just for kicks. Came out rather well.)
Just let me say this in parting: I can’t deny that the fanfiction world is rampant with the freakish examples of perversity that you unfortunately discovered.
But the real FANS, the people who write fanfiction because they love the story you’ve created, they are like Morgul, the GAFF crew, the PPC, and myself.
We write fanfiction because we love the original work and cannot bear to wait for more to be added. We write fanfiction because we wonder “what were the characters thinking in X scene.”
We fanwriters don’t see ourselves as stealing your characters, plots, and storylines. We see it as borrowing. No joke. And like all real fans, we promise to play nicely with them, not damage them, and return them to you whole.
Oh, and about the copyright issue, don’t be so sure!
😉
As you say, there’s no case law. Fanfiction is new territory where the courts are concerned, and it’s entirely possible that if/when such a case does arise, the outcome may surprise you. There are a lot of defenses out there for fanwriters as well as copyright owners.
Of course, my opinion may change by the end of this semester of Copyright Law, but I think the fanwriters’ case may not be so hopeless as it seems.
Nicely put, Lee. I hope all those people who called you a douchebag feel at least a little bad. 🙂
Jocelyn — There’s no case law about FanFic? Huh… that’s surprising. I suppose it’s because ultimately it just isn’t worth pursuing for the rights-holders? I’m sure it would become an issue, though, if someone tried to publish a book, for example. Hard to imagine one could defend that position — unless you could prove parody, which seems tenuous.
It’s a little silly to get overly concerned with what someone is doing on a tiny corner of the internet, though, right?
Sadly, I was never really able to get into this whole.. debate. But I’ve followed it, and I’d like to celebrate a peaceful conclusion. I’ll second Bjam’s offer – I’m sure we’ll be able to find competent agents to PPC a DM fic if the need arises. You’ll be surprised how therapeutic it might be to read a PPC of a Really!Bad!Fic that’s annoying you.
If one not necessarily intended point has been made from all this, I think it would be the extraordinary ability of the fandom and fanfic communities to band together. I think that’s actually kind of nice – though in some instances not always the best thing. ^^;;
Does anyone think we should still go ahead with the challenge, though? A few people were planning to write original fics just for the challenge, and it would be a shame to end now that it’s just begun…
//It’s a little silly to get overly concerned with what someone is doing on a tiny corner of the internet, though, right?//
Precisely, David. I did brief case law search for online fanfic, (granted, it wasn’t all that in-depth) and nothing came up. Your point is just the reason why–it ain’t worth it.
Naturally, if someone tries to publish a book of fanfiction for profit, we’re opening up a whole new can of worms, and a definite case of copyright infringement.
But if (heaven forbid) someone did decide to go after online fanfiction wholesale and try to ban it entirely, there are several potential defenses for fanfiction’s existence in itself. I haven’t researched or learned about them thoroughly yet, but it’ll be interesting to see whether they play out as Copyright Law rolls on.
1) Fair Use, Parody, obviously are some you’ve touched on.
2) The fact that no damage is done to the author. Copyright Law’s existence is to protect an author’s FINANCIAL interests in their work, not their reputation or their feelings. (Example: Anne Rice tends to attack fanwriters because she “can’t bear the thought of anyone else writing about her characters.” Fair enough for her to feel that way, but the law generally doesn’t care much about people’s feelings. Especially not Copyright Law, at least from what I’ve learned so far.
3) Public Policy Interest in allowing fanfiction to exist. Bear with me: as I’ve been debating back and forth with Mr. Goldberg, fanfiction has value as a teaching tool. In this day and age of declining literacy and general loss of appreciation for the value of writing, any activity that gets people (especially kids) to enjoy writing should be encouraged.
How far any of this stuff would go in court is anybody’s guess–I’m not a lawyer yet. But I’m hoping to one day write a paper on the subject and really work on how these arguments would play out.
At the very least, it’s interesting.
If I could make a suggestion, although it’s probably a little late since the discussion is winding down, I would request that FanFiccers not use as much slang when communicating with those outside the community. Half of this conversation doesn’t seem to be in English and I’m missing a lot of it. 🙂
Luthien made some good points, but I have no idea what it means to PPC someone.
THE FANFICTION GLOSSARY FOR DUM–ER–LAYPERSONS
PPC: (noun) Protectors of the Plot Continuum
(verb) to write a parody of an especially bad piece of fanfiction in the trademark PPC style (usually involving exorcising possessed canon characters) as a means of chastising the writer
canon: everything the original author (ie, Lee Goldberg) has ever written on their subject (ie Diagnosis Murder), including characters, plotlines, events, and settings
fanon: things that fanfiction writers accept/assume as true about the subject, but that the original author has not directly supported (EXAMPLE: Fanon was what poor Mr. Goldberg had to contend with when he came into SeaQuest. Fanon can be a powerful force among especially obsessed fans.)
squick: verb “to squick”, to disturb/horrify/weird out someone with particularly vile subject matter. (EXAMPLE: Mpreg squicked Mr. Goldberg. Mpreg squicks just about everybody who doesn’t write it.)
GAFF: God Awful Fan Fiction, another fan community that specializes in delivering especially harsh criticism to those fanwriters who do not respect the canon
canon purist: fanwriters who specialize in remaining true and respectful of what the original author has written. Their goal in their writing is twofold: 1) to make the fiction FEEL like the stuff the original author has written (for the readers) and 2) to be respectful and appreciative of the original author’s work
slash: creating a homosexual relationship between heterosexual canon characters (tends to squick canon purists)
mpreg: ugh. If you don’t know by now, I ain’t explaining it again. I had to explain this to my MOTHER. 😉
fandom: the entire fan community of a single show/author/book/movie/etc. (EXAMPLE: Mr. Goldberg has seriously got himself on the bad side of the Battlestar Gallactica fandom.)
That’s all I can think of for now. Any other clarifications needed, let us know. Somebody will be able to explain it.
PPC is short for “Protectors of the Plot Continuum”, which originally was started by a couple fanfic writers who were a little distressed at the invasion of their fandom (Lord of the Rings) by screaming romance-writing fangirls who create all-powerful, perfect characters that everyone except the author hates. So they decided to take out their frustration by writing stories where they got to kill the annoying characters. A lot of other writers made spin-offs of it, branching out into Bad Slash, Bad Crossovers, Misplaced Flora and Fauna, etcetera. Thus, history is made.
There are a lot of efforts being made to… educate badfic writers, from mocking like at GAFF to sites and orgs dedicated to helping others improve their writing. We may not have won the war yet, and we may never will, but we’re getting places.
If you’re getting lost on the terms, there’s a good glossary at http://subreality.com/glossary/terms.htm.
*joins in the applause*
After all, we truly wanted nothing more than so you’d see the other side of the argument. (You know, when you’re a 23 years old blonde studying translation and politic science (and yes, a woman), it feels kind of weird to be basically told you’re a 40 year old sexually frustrated male with a bad skin who lives in his mum’s basement, just because you happen to enjoy good fanfic 🙂 Just joking; sorry, I couldn’t resist 🙂
I must say I’m pleasantly surprised, and I apologize for some of my harsher remarks. Thank you 🙂
I still disagree on some points, but it doesn’t matter. I would just like to say that however you perceive fanfiction, the true fans really write it out of love, it’s no cliché. You must know it yourself: you read a good book or watch a wonderful movie, and think: “I wish the book would never end… I wonder what would have happened if… I want to explore. I want to capture the feeling…” That’s it.
Thus the battle was brought to an end,
The foe was just an eccentric friend,
Quite harmless, though maybe too quick to defend
Their trend 🙂
To David Montgomery: You’re right about the slang, definitely. Yet, especially as a non-native speaker (I hope I didn’t muck up the little rhyming thing above too badly) and a language student, I must say: what a wonderful slang it is! I can say it without too much bias, because I obviously didn’t have a hand in creating it: it’s full of creativity, playfulness, humor and in-jokes, one of the most charming things I’ve ever seen, and I’m still fascinated by it.
[/fangirlish rant]
My absolute last comments on the subject…
I’ll tell you what I miss from it.
No word counts (3000 words for a short vs. minimum 60K for a novel).
Pretty much stick anything in there because it’s in that bizarre netherworld where it’s neither legal nor actionable, hence no real rules.
Here’s the kicker, and it’s more about the choices I made in going pro than writing fanfic: I miss 3rd person, multiple viewpoint. I miss writing one scene from one character’s POV, the next scene from another’s, etc. Everything I’ve written since going pro has been first person. Don’t get me wrong. I’ll never go back (though I may and have recycle some of my original characters), but there’s nothing in the notebook that calls for that kind of writing.
Some of the people I worked with. JK, if you’re reading this, Brandt really needs to be transplanted to present-day San Francisco so she can give Sharon McCone some competition.
What I don’t miss:
Impassioned letter-writing campaigns railing on the show in question’s producers for invalidating fanon.
The term “fanon”.
Some of the blowups that occured between writers.
Slash. Come on! It’s a joke! Quit taking it so seriously.
And this one’s unique to Star Trek. The original crew writer whose entire ego is invested in the adventures of Capt. Stud Horsehung of the USS Enormous as he shows Capt. Kirk/Picard/Sisko/Janeway how a REAL captain does it.
Drabbles. And if these were out there in pro fiction, I’d still hate them. The closest I’ve seen is 55-word fiction.
Yep. That’s it. I’m done talking about fanfic.
Meitian — If I’d known there were screaming fangirls, I’d have embraced your cause a long time ago. (Assuming, of course, we’re talking about real girls, and not girls who used to have penises, but then gave birth to aliens before joining Legolas in the Forests of Mirkwood.)
Majoranka — If you think that’s wonderful slang, a brutha from the inner city or a cockney for the City of London would blow your doors off.
Jim — You romantic nut, you…I’d love to read that 3rd person, multiple POV story featuring Capt. Horsehung. It sounds like we’d have a lot in common.
You should write a thriller, m’man. Stretch your legs a little.
Botherit, I wasn’t able to get into this discussion as much as I wanted either. However, I third Luthien and Bjam’s offer to take care of any badfic. Especially, in my case, crossovers. Because most crossovers are my personal form of evil. Beh.
//I think he’s right.//
It never fails to amuse me that some people think i’m a guy, especially as that nick was fangirlish in origin. It was originally ‘Morgul Queen’ (yes, I fangirled the Witch King *is slightly embarressed*).
Thank the Valar for the PPC and other such groups otherewise I’d still be stuck in the fangirl rut. *bows to the Original Assassins*
One more thing in the pro of fanfic, it was fanfic and the influence of a wonderful author that got me out of writing bad!fic. Jillian Baade, if you’re reading this, I am forever grateful to you for that.
Oh, and Jaquilene Wilson (sp?) had a great deal to do with encouraging me in that direction too.
David Montgomery wrote: I hope all those people who called you a douchebag feel at least a little bad. 🙂
It appeared to me that the really inflammatory posts were coming from those who purported to support Lee’s point – ‘Phil’ and ‘Annie’ to name two of them. By and large, the fanfic writers remained pretty polite, particuarly given that this discussion was followed on GAFF and fandom_wank.
I’m glad that Lee feels able to say he’s learned something, even if he doesn’t agree with a lot of what we say.
For myself, I had a long-held view of mine confirmed: producers of shows (by which I mean not just Producers, but everyone involved on the production side) don’t generally fit well in a fannish setting. With a very few rare exceptions, they just don’t ‘get it’ and trying to explain it is a hiding to nothing.
Peaceful resolution. COOL!
I love having intelligent, rational discussion where an actual resolution is reached, not just “we agree to disagree”
Oh, and David? Screaming fangirls, in this context, is a bad thing. Screaming fangirls write very bad stories, throw everyone out of character, and cause massive headaches. We use ‘fangirl’ as something of a derogatory term. It implies that they are fans of the show based purely on the physical attractiveness of the actors. But, y’know, if you wanyt fangirls, I’m sure it could be arranged.
~Emma, AKA Randomelf, grinning~
“It implies that they are fans of the show based purely on the physical attractiveness of the actors.”
Like most shows have a better reason to watch?? 🙂
I have not read all of the comments on fanfic and I know that you wish to agree to disagree on the issue of copyright law. I am curious as to your view on fair use and if you have ever read Legal Fictions: Copyright, Fan Fiction, and a New Common Law. You can read a reprint of it on http://www.tushnet.com/law/fanficarticle.html .
I am a fan of some fan fiction and fan films, but I am also a fan of intellectual property having been involved in budding software of a new technology while carefully balancing our role in an open source community benefitting from aspects of the GPL.
If you have read the Legal Fictions document, I am curious as to your thoughts.
Reasonably interesting article — but who thought that format was readable? Ugh.
Didn’t strike me as being particularly persuasive, though, and a couple of her points are downright specious. I don’t think a judge would buy an argument based on that reasoning. Were I on a jury, I certainly wouldn’t.
David,
To my knowledge (and I could be wrong here) fan fiction has never been tested in court. What I gather from her papaer is that fan fic falls under fair use because it’s noncommercial, sufficiently changes the original work and does not damage the market. I can see Lucas going after sites that have Luke, Leah, and Han having a three way because it does damage the integrety of the authors work. If the IP violation were so cut and dried, why doesn’t the MPAA go after fan fic authors with the same venom that the RIAA does with music piracy? The MPAA does go after pirate DVD’s and P2P networks with illegal content. I personally feel they are going too far with the Orrin’s Induce Act, but I do think the studios and record producers have a right to protect thier art. Of fan fic were so cut and dried in the law, wouldn’t the MPAA just add it to the list of things to go after? Am I missing something here? Is there an effort to end it all that I am unaware of?
David,
I just read your list regarding fan fiction. Do you have any more material on your blog? My role in open source software has me very interested in IP of all sorts. I am not an advocate of removing IP, I respect and believe firmly in IP, but I do think Copyright and Patent laws have run a bit off course and I am learning the best way to defend my legitimate use is to better understand the application of IP in other circumstances. In other words, I have something to gain from your research. 😉
David–
My curiosity is killing me: Which of the points in the Tushnet article did you consider “specious?”
After all, that thing was posted in a law journal, so at least the editors of the journal obviously did not find them so.
Which points are you referring to? And which reasoning don’t you think the judge will buy? (Have you studied law, by the way? I’m not dissing your opinion, just curious as to whether you have a background in the subject.)
Here’s another, more recent article on the subject of fanfiction. It’s in PDF as opposed to law journal format (the bane of law students everywhere) and a little more directed to the layperson.
Is fanfiction legal? It depends. That’s basically the rundown.
http://www.bu.edu/law/scitech/volume9issue2/McCardleWebPDF.pdf
“Which of the points in the Tushnet article did you consider ‘specious?'”
I was particularly unpersuaded by her argument that rightsholders who aren’t the original creators deserve less protection under the law. It shouldn’t matter whether a copyright is owned by Joe Schmo or WarnerBros; the proections should be the same. (And I didn’t see a citation by her demonstrating the contrary, but I might have missed it.)
In another section, she admits that adding disclaimers is irrelevant under the law, but claims it’s important as part of tradition and courtesy, like playing the National Anthem before a baseball game. Well, great, but that has nothing to do with the law.
My main impression of the article was that she’s making an argument based on the way she thinks things should be, but largely unsupported by the laws and precedents that she cites.
Her central thust is that “Fan fiction deserves protection because it gives authors and readers meaning and enjoyment…” That might make people feel good, but it is unpersuasive as a legal argument (to my mind, anyway).
She also contends that the law needs to be revised/reinterpreted because “people” (fanficcers) find it silly. That’s nonsense.
(Nope, I’ve never studied the law.)
The second article makes things much simpler: “Cutting straight to the chase, yes, writing fan fiction infringes on copyright protections.” (Section IIIA)
The rest of the piece then goes into potential defenses to protect oneself in light of that infringement.
How anyone still doubts that it is an infringement is beyond me.
I think the bottom line is that fanfic writers should probably confine themselves to those universes that are either in the public domain or are authorized by the rightsholders for people to write in. If people do that, the whole copyright issue becomes moot.
Obviously, of course, any individual writer of fanfiction who publishes their work only on the internet will likely never have to worry about the situation.
I can’t believe you sucked me into this when I should be working! 🙂 heh heh
One thing you ought to know about the law, David, is that even when it’s 100% in your favor (precedent, statute, and all) that doesn’t mean you’ll win a court case.
//My main impression of the article was that she’s making an argument based on the way she thinks things should be, but largely unsupported by the laws and precedents that she cites.//
Hey, that’s what being a lawyer is all about! You don’t read the law, THEN take a position. You take a position, then find law that supports it–or come up with an argument as to why the law should be changed.
//Her central thust is that “Fan fiction deserves protection because it gives authors and readers meaning and enjoyment…” That might make people feel good, but it is unpersuasive as a legal argument (to my mind, anyway).//
That’s a powerful weapon in law–a public policy argument. You CAN (and people often do) persuade a court that the law ought to be changed because there’s a public interest in it. Hence, the benefits of the exercise of writing may outweigh a copyright owner’s interest in preventing fanfiction.
//She also contends that the law needs to be revised/reinterpreted because “people” (fanficcers) find it silly. That’s nonsense.//
The Supreme Court got convinced that anti-sodomy laws were silly, and changed the law. That ain’t nonsense. That’s how law and the legal system are supposed to work.
Speaking of getting sucked in, I’m supposed to be working on Copyright class! Bye! 😉
I don’t have anything more to say about the article — other than I hope that isn’t indicative of the quality of legal arguments that you’re reading in your classes! (I’m sure it’s not.)
“One thing you ought to know about the law, David, is that even when it’s 100% in your favor (precedent, statute, and all) that doesn’t mean you’ll win a court case.”
Well, obviously… anything can happen in a court, depending on the personalities involved. It is also obvious, however, that that doesn’t mean that it should happen that way.
One of the unfortunate flaws of our judicial system (which generally works quite well) is that juries and/or judges often make decisions that are based on emotion, politial bias, or other extraneous factors, rather than the law, logic and reason. Of course, these decisions are usually reversed or modified upon appeal, but in the meantime, they make the whole system look bad.
Okay, I’ll take the hint and make this my last point as well:
//Well, obviously… anything can happen in a court, depending on the personalities involved. It is also obvious, however, that that doesn’t mean that it should happen that way.//
Well…of course it should! How else do we change an unjust law? The Brown v. Board of Education decision was made because the attorneys convinced the Supreme Court that the Plessy v. Ferguson decision (AND the majority of the population of America who supported segregation) were WRONG. Same with the recent overturning of Bowers v. Hardwick–the attorneys convinced the Court that allowing the government to stick its noses into the bedrooms of consenting adults was WRONG.
//One of the unfortunate flaws of our judicial system (which generally works quite well) is that juries and/or judges often make decisions that are based on emotion, politial bias, or other extraneous factors, rather than the law, logic and reason. Of course, these decisions are usually reversed or modified upon appeal, but in the meantime, they make the whole system look bad.//
Well, emotion, politial bias, extraneous factors and law, logic, and reason are often interchangeable in these debates. One side insists they’ve got the former three and the other side has the latter, while the other side argues vice versa.
Yes, judges and juries are presented with the law. The first step in any judicial decision is determining what the law is. But the primary job of the judicial system is JUSTICE. What’s RIGHT. And that requires, naturally, making a JUDGMENT. That’s their job. And if it’s contrary to the law, then the law changes.
I’m not saying the system works perfectly–far from it. But allowing a touch of personal judgment in judicial decisionmaking is both acceptable and proper.
What the hell… one more post. 🙂
“The Brown v. Board of Education decision was made because the attorneys convinced the Supreme Court that the Plessy v. Ferguson decision (AND the majority of the population of America who supported segregation) were WRONG. ”
I think you’re glossing over a crucial point: the Court was not persuaded by the emotion of the challenge to segregation, nor by the silliness of the institution, nor by the personalities of those involved, but by the clear illegality and unconstitutionality of segregation.
Thurgood Marshall, et al convinced the Court that racial segregation, stretching back to original legal precendent established by Plessy, violated the equal protections that are guaranteed by the Constitution, particularly in this instance those conveyed by the 14th amendment.
Thus the Court made the proper decision, both legally (and, incidentally, morally), using the Constitution (the law) as their guide. This is what all good jurists do.
Side point, but I also think you’re wrong that the majority of the population supported segregation. The vast majority of the people did not live with segregation, knew little about it in a practical sense, and probably would not have tolerated it in their communities. Outside of the South, segregation was not really an issue and did not enjoy widespread support.
It is intersting that copyright law has its roots in publishing. Before the prinitng press, copying works was largely left to those on a “mission from God” or a mission from a fuedal lord. The creation of the printing press left us with a much less expensive and time consuming process. Though plates were not cheap and marketing was still expensive, we ended up with a new breed of businessmen called stationers. Stationers did not like unauthorized duplication and formed the Stationers Company. They formed rigid laws and got Henry the VIII to give them power. He had an axe to grind with the church and decided to ban book printing form any group other then the Stationers. He also banned importation of books. Fast forward to 1710 with the Statute of Anne. This act recognized monopolies could distort price and established a 14 year protection on an original work with an option to petition for one 14 year extension.. This act became the template for the US Copyright Act of 1790. On the surface, the Act of Anne looked like a document meant as an incentive for authors to write books and . Commercial exploitation was the true aim as shown by the Stationers heavy promotion of it. The Us term has changfed 40 times, the most recent being the 1976 Copyright Act and the Sonny Bono Act that extended copyright to life plus seventy years. Corporations, however, have 95 years as a result of lobbying by the MPAA and Disney (they are worried that Micky will soon enter public domain).
The Constitution grants power to protect copyright “To promote the Progress of Science and the Useful Arts”.
It seems that at the core of Copyright protection is that to plagiarise is bad and the author has the right to protect his work from mis-attribution be it accidental or deliberate. Striking a balance at enforcing this morality and preserving competition is tricky. You still have to encourage people to create new works.The author needs to be encouraged to commit to new works and make a livign and earn a reputation so the public can get these wonderful new works and advance as a culture.
Interesting that IP theft has also advanced our culture. Romeus and Juliet was a poem by Arthur Brooke that inspired old Billy. Doyle took Hound of the Baskerville’s from Fletcher Robinson and may have murdered him as well. Disney, the out of control nutjobs that want perpetual copyright legislation founded their fortune on ripping off the Brothers Grimm and other 19th century tales.
In a broad definition, copyright is a partial momopoly with an expiration date granted to one who makes an original idea into a form of expression fixed in writing (or fixation). That would make the main legal focus of a copyright as originality, fixation, and type of work. What is a infringement in one form of experssion is not so in another form. Turning a painting to a sculpture would be infringement while converting a song to a painting may not be. The violation has to be signigicant. Taking a miniscule part of a work is not enough…despite what MS says. Agatha Cristie has no copyright of the concept of an individual solving a crime, however, copying and distributing copies of one of her novels is really not a good idea. In between these fixed points lies everything else and it is up to a judge to determine which post an alleged violation falls closest to. The internet changes things. When it came out the industries did not know if they could eat it, if it could eat them, or if they could mate with it. It developed without the MPAA and the RIAA…they were all rather exhausted trying to stop BETA and cassette tapes. Now it can instantly create digital copies of almost anything. Now the whole world can see what some guy writes in his living room for giggles. The world has changed and pandora’s box is open. I do not think matters like the Induce Act will solve them. You are asking an industry that makes 1% of our GDP to effectively restrain and stop an industry that makes 14% of our GDP and force an effective halt on our technological march forward allowing China and Germany to kick our behinds technologically while we protect Micky Mouse and Luke Skywalker’s anus from violation.
I am not advocating that we throw out IP rules, but I am saying that we need to revisit them and we also need to make sure that our means to protect IP do not violate someone else.
I also suspect writing a novel or screenplay with Miss Marple or Hercule Poirot as your detective wouldn’t be a good idea, either.
If one were to do that, that would fall in that grey area that would be up to a judge to determine which side of the earlier mentioned posts it fell closer to. In your example, a novel/screenplay is written and falls under a commercial venture putting it closer to the post of infringement. A story written that had Ms Marple making a “cameo” appearance….questionable. A reference to a mystery solved by a master detective named Poirot with no mention of a first name even though in the context it is known what is meant, but is never outright said…tricky. A non commercial work of fan fiction…the waters get more murcky.
Lee: That’s an interesting and impressive batch of shows on your resume, and I’ve watched and enjoyed more than a few of them. After reading a lot of the back-and-forth re: fanfiction on your blog, I’ve a hypothetical question. If you had to allow fanfic based on, say, “Diagnosis: Murder”, what would be your stipulations? Leaving aside, “Just don’t do it!”, because we’re assuming it had to be allowed, for the sake of discussion. Thanks for your time.
Lou
Defending fanfic on the basis that it’s not copyright infringement is silly. It is infringement, and it violates the intellectual property rights of the author/creator. You know it. I know it.
I’m glad someone told you that this is incorrect. You should also know that there are a few fanfic authors who are also lawyers, and actually know what they’re talking about. Trust me, no court will ever establish a general principle that states anything along the lines that “fanfic is illegal and a copyright infringement”.
Thanks, Lee. You’ve had some great posts on the topic. Now I’m going back to work.
So there is “good” fanfiction and there is evil, offensive fanfiction – i.e. slash, Mpreg, and other genres that involve same sex relationship? Those are offensive and vile? Now I don’t like MPREG myself, but it’s my personal taste. Do you really think that those genres are objectively more morally wrong than others or is it just your homophobia shines through?