If Your Faucet is Leaking, You Turn Off the Water
(this post has been partially bastardized from a comment on A Different Forest in the campfire on this topic.)
So MoTU/Fifty Shades of Grey made quite the splash on Publisher's Weekly today. I think I've made my stance on publishing fanfiction pretty darn clear, and I don't think there's a lot of "grey" area. Either you, as the author, know in your heart of hearts that you are using another author's IP (and not just creating a character based on the same archetype, or using a theme from the story, or being inspired by the story). Even if you're never caught, I know I for one would walk around feeling like I'd gone several days without a shower.
The big debate seems to be, if MoTU makes it big, will SM do anything? The arguments in favor seem to be "she can't take this lying down" or just people's desire to see an author who's produced a lot of fandom wank get her comeuppance. The arguments opposed seem along the lines of, "No one should fault the author for not knowing she was going to write a popular book" or "It's so different from Twilight that SM has no ground."
I actually can see both sides. But really, I would argue, the bigger issue is not our fandom, or MoTU/FS, or SM at all. The bigger problem is the undermining of a lot of hard-won ground in fanwork, and the even more precarious place that fanwork occupies in the world of digital publishing. It used to be that to publish a filed fanfiction, the person had to remove all evidence of the canon on which the book was based, find an agent, or at least a publisher, manage to convince said agent or publisher that the work was original, and subsequently hide any evidence that it began life as fic. Now, publishing a former fanfiction takes an hour of find-and-replace and and a twenty minutes uploading the file to Amazon and setting a price.
It's a different world out there right now, and holders of copyright are being cautious and observant. And this sort of thing is exactly the kind of thing that starts to make those people nervous.
Looking at it from several sides:
On reasons why SM would sue:
On reasons why SM would not sue:
On reaons why SM won't shut down Twilight fanfiction:
Giselle's point, and why none of this is really the real issue at hand anyway:
Here's the person who loses in this scenario. There's a twelve-year-old who right now is reading Judy Blume, but six years from now is going to read the hot new teen series that has the gorgeous actor in the leading role and who all her friends in high school are giggling over. And she'd like to dig into a fandom, maybe read and write some fic. But she can't. You know why?
Because the author of the hot new teen series has put the kabosh on fanfiction from the start. As have most of the authors of the other new series. Since the intellectual property thing is so dicey, and since it's probable that the courts won't side with them if someone posts something as fic that is so far from their world that all the author has to do is change the names and call it her own...the best thing to do is just not to allow fanfiction at all.
When you have a leaky faucet that you can't fix, you cut the water off at the line. And I will put good money down that this is EXACTLY what authors are likely to start doing.
Fanwriters and artists have worked hard for decades to get authors, artists, movie studios, directors and other creators to allow them to create within their world. Even with all that hard-won ground, there are still very popular authors like Diana Gabaldon and George R. R. Martin who stand firmly against it.
We are the ones who can either value what we have here in the ability to use another's world, or we can make certain that authors just say no from the outset. It's ultimately our choice.
I'd rather not spit in the face of the person who created the characters I love so much.
But that's just me.
So MoTU/Fifty Shades of Grey made quite the splash on Publisher's Weekly today. I think I've made my stance on publishing fanfiction pretty darn clear, and I don't think there's a lot of "grey" area. Either you, as the author, know in your heart of hearts that you are using another author's IP (and not just creating a character based on the same archetype, or using a theme from the story, or being inspired by the story). Even if you're never caught, I know I for one would walk around feeling like I'd gone several days without a shower.
The big debate seems to be, if MoTU makes it big, will SM do anything? The arguments in favor seem to be "she can't take this lying down" or just people's desire to see an author who's produced a lot of fandom wank get her comeuppance. The arguments opposed seem along the lines of, "No one should fault the author for not knowing she was going to write a popular book" or "It's so different from Twilight that SM has no ground."
I actually can see both sides. But really, I would argue, the bigger issue is not our fandom, or MoTU/FS, or SM at all. The bigger problem is the undermining of a lot of hard-won ground in fanwork, and the even more precarious place that fanwork occupies in the world of digital publishing. It used to be that to publish a filed fanfiction, the person had to remove all evidence of the canon on which the book was based, find an agent, or at least a publisher, manage to convince said agent or publisher that the work was original, and subsequently hide any evidence that it began life as fic. Now, publishing a former fanfiction takes an hour of find-and-replace and and a twenty minutes uploading the file to Amazon and setting a price.
It's a different world out there right now, and holders of copyright are being cautious and observant. And this sort of thing is exactly the kind of thing that starts to make those people nervous.
Looking at it from several sides:
On reasons why SM would sue:
- You don't have to be assured of victory to bring suit. Especially if the other party is likely to cower and run away because they don't have the funds to fight you.
- In this day and age, there are many parties who would be interested in making sure that an author couldn't do on purpose what SQuID did. Otherwise, the new method to self-publishing success is, write a book that appeals to the audience of an existing book, post it as fanfiction, garner attention and fans, then pull and e-publish. There are MANY people who would like to see that not happen and would like to see a test case go in favor of that source author.
- There's a long tradition of "filing the serial numbers" off fanfiction. There have rarely been cases where the author who did the filing didn't try to distance herself as much as possible. As such, there hasn't been a test case that actually says, "This book was published acknowledging another's IP, and now is being published with only the names changed and claiming it is all the new author's IP." It's murky, and people concerned with IP law don't like murky. They like the courts to say what's what.
On reasons why SM would not sue:
- It'd make her look bad.
- 30,000 ebooks is still not *that* much money.
- After this little publicity stunt, James has pretty much made sure no one in the industry will touch her work with a ten-foot pole because they're worried about potential copyright issues. So it's probably moot--anyone who could get the kind of following SQuID has is also likely to be followed around by people going, "THIS WAS FIC THIS WAS FIC THIS WAS FIC" and isn't that big a threat anyway.
On reaons why SM won't shut down Twilight fanfiction:
- She has no books in the pipeline right now. There are no release dates for sequels to THE HOST or her mermaid book. Keeping Twidom alive is the way to continue her brand, which the publisher would like to do (as evidenced by the incredibly slip-shod book that they put out as the Illustrated Guide). Fanfic keeps her brand alive while she works on the next thing down the line.
- She's come out very vehemently in favor of it, and to "flip-flop" would reflect negatively on her.
Giselle's point, and why none of this is really the real issue at hand anyway:
Here's the person who loses in this scenario. There's a twelve-year-old who right now is reading Judy Blume, but six years from now is going to read the hot new teen series that has the gorgeous actor in the leading role and who all her friends in high school are giggling over. And she'd like to dig into a fandom, maybe read and write some fic. But she can't. You know why?
Because the author of the hot new teen series has put the kabosh on fanfiction from the start. As have most of the authors of the other new series. Since the intellectual property thing is so dicey, and since it's probable that the courts won't side with them if someone posts something as fic that is so far from their world that all the author has to do is change the names and call it her own...the best thing to do is just not to allow fanfiction at all.
When you have a leaky faucet that you can't fix, you cut the water off at the line. And I will put good money down that this is EXACTLY what authors are likely to start doing.
Fanwriters and artists have worked hard for decades to get authors, artists, movie studios, directors and other creators to allow them to create within their world. Even with all that hard-won ground, there are still very popular authors like Diana Gabaldon and George R. R. Martin who stand firmly against it.
We are the ones who can either value what we have here in the ability to use another's world, or we can make certain that authors just say no from the outset. It's ultimately our choice.
I'd rather not spit in the face of the person who created the characters I love so much.
But that's just me.