Hopkinson, Nalo: So Long Been Dreaming

[calico_reaction]

Comments

[calico_reaction]

I'm guessing this case is the latter, that it's such a small publishing house with such a small print run they're hoping they'll be considered unworthy for a lawsuit. Because there's certainly nothing in the anthology in either the author's intro/bio or in the anthology's copyright page that gives credit to Philip K. Dick or whomever owns the copyright. And I'm still wondering if there's a difference when you consider the author is clearly writing fanfic of the MOVIE, not the book, which the movie was BASED on?

At any rate, it is a sticky wicket, but this is pretty clearly fanfic (using character names, situations in the film, quotes from the film, etc) to anyone who's seen the movie. And I've only seen it once, which should say something about how recognizable it is.

Surely to god the editors have seen the film. If not, shame on the author for slipping it past them. But then again, I've heard story after story of a fanfic writer who tries to publish their work and not understand when the copyright holders sue them for the profit they made...

[aliciaaudrey]

No, that just changes the players a bit--if it's based on the film and not the story that inspired the film, then it's who owns the copyright to the film and its characters.

If that's the case--small publishing house, limited run--it probably is the latter. That may be an omission, a "whoops" on their part. It may also have been a calculated choice. People (and companies) do things that break laws all the time if they think they can either get away with it or if they think the chances of them actually getting sued for it is very slight. We call those "Efficient torts." (At least, my torts prof did, so now I do too.)

It also has occurred to me that if the film company has not been enthusiastic about protecting the characters to the work in the past, then it would be much harder to protect it in this instance. George RR Martin has talked about that in his blog a few times, and it's true--if you don't protect a copyright, it could be considered "lapsed." It's part of the reason Big Companies That Own Things occasionally seem to go crazy suing, y'know, a seventh grader's personal website for copyright infringement (I believe Rowling's publishing house did this once.) It's not necessary that they're being a dick (no pun intended). Although being me, I generally assume big companies doing dickish things ARE being dicks, it is at least in part because they legitimately need to protect the copyright.

I just hope it WASN'T an omission based on "Uh, that never occurred to us." That's a BIG problem, and if it didn't bite them in the keister here, it could in the future.

[aliciaaudrey]

This is an area of law I am quite interested in learning more about (not just because I seem to trip over writers and aspiring authors of some seriousness and then collect them as a hobby). Intellectual property usually requires an LLM and it's mostly very dull patent stuff (fill out this form. Fill out this form. Fill out this form. Watch Alicia stare up at teh ceiling with drool dribbling from her open mouth because she's been sent into a "Oh christ get me out of here!" stupor.) But the laws that govern published works are themselves quite interesting to me.

I'm up for a temp position at a publishing house's legal department (textbooks and educational materials, but still) as some sort of support staff. I hope I get it, because while it's not a legal job per se (and I won't qualify for THOSE until I pass the bar anyway) it would give me a chance to see that area of law at work in real time.

[calico_reaction]

That'd be cool. I've got another friend who I've lost touch with, but she was interested in intellectual property law back at Hollins. Which, now that I think about it, isn't quite the same thing as copyright law, is it?

When do you take the bar?

[aliciaaudrey]

Copyright is a form of intellectual property. It isn't that different from a patent or a trademark, although they are all different "things." Saying "I like intellectual property law" is very, very, very broad (though it's the kind of things people say, so I'm in no way criticizing. I usually tell people "I'm really interested in workers rights" rather than telling them, say, "I am specifically interested in the interaction between contract and constitutional law that dictates workplace behavior, even though workers rights are a very broad part of the even broader field of labor and employment law.)

Intellectual property merely "ownership of things that do not have a physical existence."

The words that make up a book (a copyright), or a chemical formula for a new cancer treatment (a patent), or the design for a Dodge Charger (a patent), as well as the name "Dodge Charger" (a trademark).

But obviously that's a very broad umbrella and there are lots of little sub-areas with their own specific laws and wrinkles.

I took New Jersey in July. I don't think I passed but I won't know until late next month; it's not that I'm not smart enough to pass, but I was working well over a 40 hour workweek for the Census when I was trying to study, in a task that interrupted me CONSTANTLY and which I always had to deal with at once. I don't think I was fully prepared and I've come to terms with this.

I will take New York in February and New Jersey again if I have to at the same time.

[calico_reaction]

Oh wow! What a time to wait! I've got my fingers crossed for you! :)

And thanks for explaining the differences and categories.

[aliciaaudrey]

Yeah, but the Feb bar results come in faster because far fewer people take it. I should know Feb in May I think. That's hand scoring by multiple people for you. thanks!

[calico_reaction]

One question because I'm too lazy to look it up: what's a tort? :)

But what you say makes a lot of sense, and I've heard that about copyright: to protect it, you must defend it, otherwise, you can't protect it when you need to. So yeah, George Lucas and Warner Brothers can be dicks about protecting the Star Wars and Harry Potter copyrights, respectively, just so that if there's ever a case of published fanfic, they've got a solid foundation to stand on for defense. It's already happened with Star Wars: the book was even on Amazon for a limited time!

I just hope it WASN'T an omission based on "Uh, that never occurred to us." That's a BIG problem, and if it didn't bite them in the keister here, it could in the future.

YES. If anything, that's what I want to know the most. Was the author fully aware of the implications? Did the editors know? Because if they're all clueless, that's scary. If they're pushing the envelope, that's a different story. I have different reactions to both instances.

[aliciaaudrey]

Tort: wrongs people commit against each other.

Crime: wrongs people commit against the state and society.

A bad act can and often is both, but not always. You don't go to jail for copyright infringement but you can and do go to jail (your criminal punishment) AND may have to pay damages (compensation at tort) to someone if you run them over with your car.

That's your friendly legal lesson for the day. The more you know!

Most authors can and should know a lot more about copyright than they do. Every time you use a snippet of, say, the lyrics to a popular song in your work, you are potentially violating copyright, though oddly this seems to be more of a problem "in text" than it is if you are quoting it for, say, an epigraph, or if you have a character saying something that is common knowledge "Ringo Star wrote that song about the Octopus."). But it's a very complicated area of law, so I don't blame them for not knowing more. It took Howard and I a week to figure out if he could use a phrase from a song in text without having to get permission (the answer was probably not.)

[aliciaaudrey]

And I agree that it's a very different thing depending on which one it is.

Could also be their legal department or the firm they use for counsel (if they have one) looked at it and concluded "this is not a suit risk" for reasons we just don't know. I can't think of a reason, but I'm not especially learned on copyright, alas.

[calico_reaction]

Actually, it's trademark that must be defended aggressively or it lapses; copyright is a different animal.

[aliciaaudrey]

No, copyrights have to be defended too. Martin talked about it fairly extensively.

http://grrm.livejournal.com/151914.html

If you show a history of NOT protecting your rights to something you hold the copyright of, it can and will be brought up as evidence that you abandoned the copyright.

[calico_reaction]

George R. R. Martin got a lot of things there very, very wrong; I remember an extensive discussion of it in the blogosphere, by Nick Mamatas among others:

http://nihilistic-kid.livejournal.com/1470621.html

He was wrong about the Marion Zimmer Bradley case as well, as is well-documented in a sub-thread:

http://nihilistic-kid.livejournal.com/1470621.html?thread=20753565#t20753565

[aliciaaudrey]

I don't find this persuasive, particularly in light of what I've read on the topic in legal publications, but you're entitled to your opinion.

[aliciaaudrey]

I would say (having talked to people who've studied, or teach, copyright law, and thus understand the issue from a position of some authority that I respect as being grounded in an actual understanding of legal principles) that the fairest thing to say is that this is not an area of settled law.

Both sides assert 1. they are right and 2. the law says they are right, which is kind of what I expect--even in areas of law broadly considered settled, you'll get people screaming that everyone else is interpreting it incorrectly.

Given my admittedly limited exposure, I fall on one side; since this discussion, I've gone back and done some further reading. I still fall on the same side I did before (I believe copyright holders should be and legally are entitled to control or prevent derivative works--such as a short story set in ones novel or screenplay), but I'm not presently willing to say the law is on my side, because the law appears not to be settled.

Some of what I've been reading I can't link to, as they require subscriptions to legal databases. However, here's an assortment of things I was pointed to or found on my own that are freely available on the internet that I think provide interesting perspectives on the issue of the ability of an author to control his or her own works, and whether or not such control needs to be exerted.

http://www.law.com/jsp/article.jsp?id=1202432852324 (DJ Salinger vs. Swedish "Sequel" To Catcher in the Rye; litigation continues. I'd be interested to see more of Salinger's position, which is that he has a right to keep his characters "Frozen in time"--emotionally this seems to be most anti-fanfic author's major point. Not relevant to the fanfic author necessarily as the Swedish author seeks to profit from his work, but raises many other points in common--particularly whether or not said work actually hurts Salinger in any way. I picked this because it's the most recent piece on law.com, but one can easily find reams more material on this interesting case.)

http://www.tushnet.com/law/fanficarticle.html (written by a law professor who is also a fanfiction author. Probably the definitive "pro fanfic" legal take on the issue.)

Interesting contrast to: http://www.google.com/url?sa=t&source=web&cd=43&ved=0CCAQFjACOCg&url=http%3A%2F%2Fwww.bu.edu%2Flaw%2Fcentral%2Fjd%2Forganizations%2Fjournals%2Fscitech%2Fvolume92%2Fmccardle.pdf&rct=j&q=fanfiction%20copyright&ei=XS6uTKi4LcSAlAf2rPzkDw&usg=AFQjCNHa5mfd1MuyK_jVASfP9AH-EGQcQQ&sig2=3ZMx_gP9St42e9Q13uR8rQ

(will download as an adobe PDF- a law article by a Boston University law student (since graduated given the date). Interesting take; basically argues that it's a copyright infringement but probably not prosecutable. Does not take into account arguments that advertising and other revenue streams could arguably create "income" from a fan work, something some of the other articles or discussions here discuss to varying degrees.)

http://inc.ongruo.us/2010/04/29/review-of-literature-the-effects-of-corporate-copyright-persecution-on-fan-relationships-to-media-texts/ (Speculates on whether or not corporate efforts to squish fan media damages fan relationships to the media properties in question. I'd say this is a common sense "Duh", but an interesting survey of more current literature on the topic none the less.)

http://reviewcanada.ca/essays/2008/07/01/friction-over-fan-fiction/ (Canadian, so it deals primarily with issues of Canadian law, but an interesting take though--argues in the end that perhaps fanfic's current "shadowy place" is the most legally sensible, although given how untenable both sides of this debate find it, I doubt that myself)

Interesting final two parts of a three part series from the UChicago Law School's blog (The first part focuses on the legal impact of spoilers--also interesting, not on point--link is to third part, but you can access second part from the top)

[aliciaaudrey]

Continued

http://uchicagolaw.typepad.com/faculty/2006/09/convergence_cul_1.html

Wall street journal article about same (referenced in above post; since WSJ has now altered its fee structure, said article is now freely available)

http://online.wsj.com/article/SB115836001321164886.html?mod=todays_us_pursuits

Canadian again, and dealing principally with 18th century fan works and 18th century copyright with some discussion of modern copyright law with respect to derivative works. This is the abstract; the chapter is available as a free download and I thought it was a very interesting little read.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1562701

Pro Author summary of a paper that was presented at UC Sata Clara.

http://www.techlawforum.net/post.cfm/online-fanfiction-and-third-party-copyright-infringement (It's dry as dirt, but a good summary of the pro-author argument and has some case law links, though none are directly on point)

A debate on a literary agent's website that got quite interesting indeed as to whether or not "successful" fanfic authors dare mention their fanfic success in query letters:

http://misssnark.blogspot.com/2006/09/is-fan-fiction-pub-credit.html