Thursday, July 28, 2005

No Such Things as Dead Horses

For about a half a millisecond today, Lee Goldberg had another rant on fan fic a-brewing, connected to this article at The Watley Review.

Now The Watley Review is a parody-satire site for literary news in much the same way The Onion is for headlines. But for a second at least, Mr. Goldberg took it seriously enough to invoke Naomi Novik (a soon-to-be published writer who stands pretty much on the opposite side of the fan fic debate from Goldberg,) and "her ilk" as approving such a thing.

Of course the page is gone now and you have only my word for it (and any other random fly bys who might have spotted it) that it ever existed, since it never occurred to me to save a copy. (A contributor to Fandom Wank I'm not.)

I can only guess that someone pointed out to him that the site is satire and hence the quick retraction and truly, I'm not planning on busting his balls about it since The Watley Review article actually is an amazingly good presentation of the kind of legal problems, as well as the artistic/creative conflicts, that might exist between pro writers and fan writers that pro writers do worry about whenever there's unauthorized use of their characters and situations.

One of the things I would have pointed out to him, however, is that even were the story true, that kind of behavior, while possible, isn't anything encouraged or approved of by the vast majority of fans who write in other people's universes. The point of fan fiction for most is not to replace the legitimate publication of favorite authors's stories (or the production of additional movie franchises or TV series episodes). The whole fan fiction phenomena is one that provides several things: enhancement of the experience of fans, broadening communities that share interest in the same source, explorations into characters and situations that in truth will likely never be explored as long as the source is regarded as singularly commercial.

He and I may disagree on the legality of fan fiction (which I define as a fan authored, non-commercial work) and whether or not, by that definition, it is illegal. (Which I don't think it is, but until it's argued in court -- in the US courts anyway -- there is no precedent by which to rule that fan fiction either in general or in specific cases occupies any standing within copyright law as either in or out of the fair-use clause,) but I do not disagree that fans (or merely opportunistic hucksters) have no right whatsoever to make profit off another writer's characters and creations without an agreement with the author themselves.

And the example used by The Watley Review is a good one because in that case you have a (fictitious) fan who has written something so compelling it's being downloaded by thousands -- which puts it in direct competition commercially with the original author -- at least on the surface. That would put it outside the fair-use clause, if real economic harm could be shown. Although, take a harder look at that and think about it again.

In this hypothetical case, the fan has written something in reaction to an already published work. Now in the case of Harry Potter, the sales records for that first day release pretty much outstripped anything of recent record. HP is wildly popular, has made JKR a household name and a very wealthy woman, as well it should. So, showing true economic harm might be problematical, especially if the argument is that the fans downloading the alternate version have already obtained (purchased) the original. So, economic competition is a little iffy -- It's not as if the downloading frenzy would be offset by the same people buying another copy of the original in hopes a of a different outcome.

Now, artistically -- creative assault might be more accurate a description of what could occur, since the whole point of the hypothetical rewrite was dissatisfaction with the original. Except that it's not entirely clear that copyright actually covers that as a legal defense -- copyright is, as far as my understanding, the legal method of securing a creators economic rights to their work, and while you could most certainly engage half the planet in an ethical dispute of creative control versus creative freedom at non-profit level, I'm not sure the legal argument would be any less lively.

Regardless, The Watley Review article is fictitious; a what if, a poke at both fan writers and professionals (with a little more heavily laid on bitch slap to fan writers, IMO.) It lays out both the ethical and legal points in a way that is plausible.

Although again, the ethics of that situation run up again the ethics of another: most fans recognize and respect original creators (no matter what you think of the way they express that respect) and would be appalled and very likely unsympathetic if not condemning if Little Miss Fictitious Fan (LMFF) tried to profit from her rework. But in this case "profit" is a nebulous gauge. It may well be that such thing would deny JKR her rightful profits to her work, without actually putting a penny in LMFF's pocket. In which case you might could argue economic harm -- which is legally actionable as far as I know. And part of what makes this plausible is the sheer magnitude of the HP phenom in terms of interest.

I'm not necessarily a fan of lit-fic. I am a media fan, primarily, and the works I read (and occasionally write) draw heavily from movies and television rather than anything on the current sci fi/fantasy shelf at my local bookstore. I may read Master and Commander fan fic, but I'd never read nor was likely to read any of the novels, although in truth, now, I'm more likely to at least try a Patrick O'Brian book because of the fan fiction based on the movie. I own two copies of the movie, the soundtrack, and a coffee table book about the making of the film. However, it was not until a friend of mine actually pointed out some M&C fan fiction that I even gave the film a second thought. It wasn't something I was likely to go see on my own -- but I was intrigued: not by the advertising, not by the endless "making of" run on cable, but by a piece of fan fiction -- gen fan fiction at that.

Color me intrigued. So, in this particular case, fan fiction actually increased if not established the appeal of the work for me, prompting me to spend money I wouldn't have otherwise. I think anyone would be hard pressed to prove that in this case, any economic harm was inflicted upon either the heirs to the O'Brian Estate, or to the producers of the film.

All of this is more or less my own take on the fan fic issue which is far more nuanced and layered than its hard core opponents would like it to be. And that in all likelihood, true conflicts of interests such as presented in the article should be taken on a case by case basis.

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