Fanfic and pastiche continue to cause copyright quarrels

60-Years-Later-CoverChris Walters has posted an interesting and provocative post over at Booksprung in which he investigates ways that publishing fanfic could be made “legal”. In particular, he envisions a two-step process in which the body of a derivative work is published with placeholders instead of character names. For instance, a Harry Potter fanfic could have every reference to Harry’s name replaced with BOYWIZARD, every reference to Hogwart’s replaced with MAGICSCHOOL, and so on, until there are no actual derivative names within the story.

Then when the story is purchased, a program on the buyer’s computer goes through and uses a third-party-produced template to search and replace every placeholder with the actual name, then produces an e-book file out of it.

A wholly formed and unauthorized Harry Potter novel would clearly be a violation of U.S. copyright law, but the process is decentralized so that neither the author of the new work nor the template website is responsible for the final creation of the infringing work. In fact, other templates are available that would turn the story into a brand new work with original characters and places, or that would let a reader personalize it with friends and local places. If you’re feeling perverse, you can apply a Vampire Chronicles template and giggle at Lestat, Louis and Claudia as mystery solving young wizards vampires.

I’m not entirely sure this kind of “fanfic Mad Libs” would squeak by under the letter of copyright law, but it’s an interesting idea. But, Walters writes, the idea itself is not actually the real point so much as a thought experiment to point out that there are as-yet-undiscovered ways in which technology can work around copyright restrictions he and others see as overly restrictive.

I’m against the current implementation of copyright law for cultural reasons, because I think it’s reached a point where it’s become detrimental to our shared heritage. There are millions of humans who will be born, grow up, produce new creative works on the shoulders of past artists, and die, all while “Gone with the Wind” remains under copyright and locked out of the public domain.* In 2007 a filmmaker can create an original work that incorporates 80-year-old public domain blues recordings, then be unable to sell her film because of licensing issues for the underlying compositions. Other songs disappear entirely because copyright forbids distribution, even though the rights holders abandon those works and fail to properly preserve them. TV shows and movies don’t use the Happy Birthday song because of a (disputed) copyright claim on it, so a living artifact of our present culture regularly fails to be accurately represented or preserved in other works. And right now, a fanfic sequel to “The Catcher in the Rye” (set 60 years later but using the same character) can’t be published in the U.S. because J. D. Salinger successfully sued to prevent it.

Over on the Guardian book blog, David Barnett takes a more subdued look at professionally-published prequels or sequels to established books—most of which are in the public domain. It also mentions the controversial Catcher in the Rye sequel, which will be published elsewhere in the world but not within the US or Canada, and points out there have been a remarkable number of derivative works based on H.G. Wells’s The Time Machine. He also talks about the James Bond literary franchise, which has been handed off to new writers several times.

In bringing up a sequel to a novel by deceased author Trevanian, which he found managed to capture everything that made the original novel great, Barnett suggests that perhaps it might be worth giving sequels by other writers a chance.

Of course, not everyone has been enthusiastic about the idea. "I don’t know whether to call them vampires or cannibals…let them roll their own," said Nero Wolfe novelist Rex Stout of people who continue others’ series after their death. (Ironically, someone else did write Nero Wolfe novels after Stout’s death, and they were universally panned by fans of the series.)

But as many fanfic writers point out, the works that they “continue” are stories that inspired and made a great impression on them, and putting your own spin on an established story is a practice that has been hardwired into our psyches since well before ancient mythology provided the earliest recorded examples of literary pastiche.

6 Comments on Fanfic and pastiche continue to cause copyright quarrels

  1. This seems like a lot of work, why wouldn’t somebody actually write a new story with new people? Oh, yeah they think it’s okay to use someone’s work rather than their own. I think there’s a few words for that.

  2. How did readers and writers and other media consumers and creators ever become so enamored with sequels and derivative works? There is no need (in my mind) for fanfic Harry Potter because there is too much original Harry Potter in the first place: I couldn’t finish all the books, never saw a movie version, and don’t give a fug about fanfic. There are enough Star Trek knockoffs with starship commanders saving humanity from peril to replace the Sear and Roebuck catalog in every outhouse.

    Good derivative works take the original creation in a new direction: for example, FINN by Jon Clinch is a novel about Huck Finn’s father who only had a very minor role in the original, but the new work focused on themes not found in Twain’s book such as the race of Huck mother. That’s interesting. But a new story with Sherlock Holmes? Meh.

  3. The snob tradition is alive and well in all walks of life, especially the arts. When Leonardo da Vinci and the great Painters were working there was no barrier to what they could and would paint. Inspiration from earlier masters and current masters was welcomed and widely embraced. As it should be.
    Writers should be free, morally, to do the same. I see no problem with a writer devoting himself to continuing the story of a previous title that inspired him. Nothing whatsoever.
    Copyright of course needs to be respected in it’s essence (leaving aside the ridiculousness of the current laws). Where a work is derivative it should be labelled as such and the reader made well aware. I believe this is simple honesty, speaking as someone who was seriously pissed off after buying two books by Isaac Asimov some years back only to find they were written by another author with Asimov’s permission and very poorly labelled.
    The scenario regarding the weird software replacement thing above is, in view, wrong. It is essentially dishonest and anyone doing it should be shunned.

  4. @Howard:
    One thing I touched on (but only barely) in my original post is that this hypothetical text creation method wouldn’t be used solely to infringe. I noted that a reader could, if he likes, personalize a text with the names of family and friends. For a more profit-minded example, an author could write and sell a customizable novel that involves the customer as a character in the plot, without having to manually rewrite the manuscript for every unique purchase. I imagine lots of readers would pay a premium to find themselves represented in the next Sookie Stackhouse novel or Stephen King doomed-New-England-town blockbuster.

    For a while now I’ve been wondering about the future of written entertainment, and I believe it’s likely to involve mass customization, mostly at the customer’s end (a la mashup culture) but possibly at the creator’s end as well.

    It’s just that the more malleable the text becomes, the harder it might be to predict what people could do with it–and they might discover unique ways to bypass copyright laws, which could have both good and bad repercussions.

  5. Chris – yes I can see that is an interesting angle. In my city we have a shop where parents can buy childrens books with their names customised into the colour hard copy. So I imagine this is an extension to that. Whether I would chose the word “lots” is another thing LOL …

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