1. daemon
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    daemon Contributing Member Contributor

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    Derivatives (noncommercial): legality & ethics

    Discussion in 'General Writing' started by daemon, Aug 30, 2014.

    Mary writes a fanfic from the perspective of an original character who interacts with characters from the source material.

    Sue likes the story but thinks the writing could be much better and the story could be written just as easily in the form of a novel (not fanfic). The story has the potential to become a novel that wins the praise of critics and positively influences many readers. It does not reach that potential because it is fanfiction (therefore, it limits itself to a niche readership) and it is not written very well (therefore, it does not win praise from critics). Sue wants it to reach that potential. She is willing to work for free, and for no recognition, to benefit readers' lives by making a good novel available to them.

    In order to help the story reach its potential, she reworks the story significantly to turn it into a good stand-alone novel, maintaining the basic premise, story arc, conclusion, and themes, but changing all the characters' names and backstories and relationships with each other, merging some characters together, removing some characters, adding some characters, choosing a different setting, changing plot details, etc. This is done for the sake of improving the story and making it work without the context of the original source material, not just for the sake of making it different from the fanfic.

    EDIT: Assume Sue never asks Mary for permission. The intent of this question is to see if you think Mary's permission is necessary.

    Sue posts the novel free to read on the web. She does not put her name on it, leaving it as an anonymous work. On the first page, she states that the novel is in the public domain, she states that it is derived from Mary's fanfic, and she provides a link to the fanfic. She gets the word out by creating a Goodreads page for it and by recommending the novel to people, first on forums dedicated to the fandom (in order to reach fans of the fanfic and to create buzz), then on forums around the web (in order to reach the general public). And sure enough, the novel accomplishes everything Sue wanted it to accomplish.

    I have been told that this is illegal and/or unethical. Do you agree? Why?

    EDIT: I thought this was obvious, but this thread is not to help me decide whether or not I should do something. It is to discuss a facet of intellectual property from a legal and philosophical perspective.
     
    Last edited: Aug 30, 2014
  2. Jaro
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    Jaro Active Member

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    Forgive me if I am wrong, but if you remove some characters, add others, merge a few together, change all the names, move to a new location, and change the plot... Is that not a whole new original story? If so, I don't see ANY legal/ethical issues...
     
  3. daemon
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    daemon Contributing Member Contributor

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    The plot is still driven by the same type of conflict, which is a very specific scenario that has never appeared in anything other than the fanfic. The plot moves in the same general direction and arrives at the same conclusion as the fanfic. And there are still strong parallels between the protagonist of the fanfic and the protagonist of the derivative novel, and parallels between some of the other characters.

    There might also be some scenes in the novel that are very similar to scenes in the fanfic.
     
  4. Jaro
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    Jaro Active Member

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    "The plot moves in the same general direction and arrives at the same conclusion as the fanfic. And there are still strong parallels between the protagonist of the fanfic and the protagonist of the derivative novel, and parallels between some of the other characters."

    That's honestly true of just about any other book out there, though. Correct?

    Now, is the original fanfic in the public domain? (Can a fanfic BE public domain?)

    Have you asked permission of the original author of the fanfic?

    EDIT: Please note I am VERY new to the world of writing, so take my questions/answers as actually being ignorant of the subject
     
  5. daemon
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    daemon Contributing Member Contributor

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    The novel relates to the fanfic similarly to how Disney movies like Cinderella and Sleeping Beauty would relate to fairy tales if the characters' names were changed. Basically, it is not a coincidental similarity like you might encounter between any two novels; instead, it is recognizable beyond doubt that the novel is a retelling of the fanfic.

    Is the fanfic in the public domain? Good question. The answer is technically no. It has no copyright notice, but it was posted on a website in the US, and under US copyright law, a book is automatically considered copyrighted unless it explicitly states that it is not copyrighted.

    Assume the author of the fanfic has not been asked for permission, because the intent of the question is to see if people think the author's permission is necessary.
     
  6. elynne
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    elynne Active Member

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    unless a fanfic work has the permission of the creator of the source material to make money from the fanfic, it's basically "open source"--the fanfic writer has no legal recourse whatsoever to other people using their fanfic in any way, since they do not own the original copyright. (IANAL; IIRC; YMMV; ODMA)

    is is possible to change the details of a given fanfic to the point where it is no longer considered "fanfic" but instead an original work, even if it's known to be based on somebody else's original work. (see: Fifty Shades Of Gray)

    legally, I think the fanfic-derived-from-a-fanfic would be perfectly safe (assuming the original creator wasn't rabid about seeking out and destroying all fanfics, which presumably isn't the case if the first-generation fanfic already exists). ethically... it really depends. if the connection between the two works is as blatant as you say, then people are going to make the connection and the first-generation fanfic author is probably going to find out about it one way or another. if it's a small fandom, that could ruin the second-generation fanfic before anybody even reads it. it'd certainly be more polite to get the first-generation fanfic author's permission.

    I have now written the word "fanfic" so many times that it no longer has any meaning to me.
     
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  7. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    I am not a lawyer.

    I do believe that copyright applies to Mary's original fan fiction. It's a derivative work, and it may be a copyright violation in itself, but that doesn't mean that Mary doesn't own the parts that are original to her.

    However, I don't think that premise, story arc, conclusions, and themes are copyrightable, so I think that what Sue has done is perfectly legal, in terms of Mary's copyright.

    If nothing of the original work that Mary drew from is left in Sue's work, then I think that it's legal in terms of both sets of copyrights.

    I do not find it ethical. By taking Mary's premise, story arc, conclusions, etc., Sue has to a substantial extent deprived Mary of the ability to do exactly what she, Sue, has done. Ethically, I think that Mary's story is Mary's, and I don't approve of Sue taking it, even though Sue is not benefitting in any concrete way.
     
  8. minstrel
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    minstrel Leader of the Insquirrelgency Staff Supporter Contributor

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    I don't know for sure if this would be legal or not, but I would expect quite a bit of legal hassle. Given that neither Mary's nor Sue's work is commercial (there is no monetary interest involved on either side), the point may be moot.

    I'm reminded of the case of a novel called The Wind Done Gone, which was essentially a rewrite of Gone With The Wind from the POV of one of the slaves. The names were all changed, but the character relationships were (as I understand it - I've never read the book) the same. The plot followed the original's plot. It was called a "parody" of GWTW in the promotional materials.

    The estate of Margaret Mitchell (author of GWTW) sued Houghton Mifflin (publisher of TWDG) for copyright violation. A court issued an injunction against TWDG being published; an appeals court set that aside. However, Houghton Mifflin had to negotiate a settlement in order to get Mitchell's estate to drop further litigation. Look up The Wind Done Gone on Wikipedia for more information.

    My point is, even if it turns out to be legal - I mean, even if an appeals court finds in Sue's favor - Sue is skating on thin ice. This is the kind of thing that could go sour quickly; it has done so before.

    All that said, I think this kind of thing is unethical. It would be better if Sue contacts Mary, gets her approval for the rewrite, and even credits Mary as co-author (if Mary asks that). Then everything would be above board. The way it's stated, it looks like Sue is kind of sneaking around behind Mary's back.
     
  9. PensiveQuill
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    PensiveQuill Contributing Member

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    So this bit here is to wash Sue's conscience of whatever conflict she's got going on about the situation by telling yourself it's an act of charity?

    Regardless of whether something is legal or not. The one thing I always rely on is how I feel about an action. The quoted paragraph above sounds like a justification for doing something Sue believes in her own mind is wrong. That right there tells you everything you need to know about the situation.
     
  10. daemon
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    daemon Contributing Member Contributor

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    How? Let's say Mary starts to do what Sue did. What stops her?
    What is the basis of this argument that someone can own an idea, and that if someone else elaborates on the idea in a unique way, then that counts as "taking" the idea? I get why one might argue that someone owns the text she writes. But a plot skeleton and character archetypes? You need to make a really convincing argument about that.

    What about fanfiction? Do you approve of Mary "taking" characters and plot lines from the source material?

    And even if we assume that you are right, then how is that so important that it outweighs the benefits? (See the second paragraph of the OP.)
     
    Last edited: Aug 30, 2014
  11. daemon
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    daemon Contributing Member Contributor

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    If Mary says no, then we are back to the same question: why is her permission necessary?

    Do you think fanfiction is ethical? Mary herself wrote a story involving characters and plotlines from the original work without asking for the original author's permission, and without even bothering to change characters' names or backstories.

    And even if we assume that you are right, then how is that so important that it outweighs the benefits? (See the second paragraph of the OP.)
     
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  12. daemon
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    daemon Contributing Member Contributor

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    No, the charitable motive came first (see the second paragraph of the OP). Then it became evident that there might be opposition. There is only external disagreement, not internal conflict.
     
    Last edited: Aug 30, 2014
  13. LeighAnn
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    LeighAnn Member

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    There is a big difference, legally speaking, between derived from and inspired by. It seems, from what's been written, that Sue has moved into inspired by territory (though each specific instance is different, so it's really impossible to say without both pieces of writing to compare). Though inspired by comes with it's own set of pitfalls, it is typically more allowable than derivative works.

    As for the ethics...well, fanfics (unless specifically sanctioned by the original author) are unethical anyway, and illegal in most case.
     
  14. daemon
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    daemon Contributing Member Contributor

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    Why?
     
  15. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    Sue already did it. It's done. The potential of Mary's idea is largely used up, and Mary didn't get to use it up.

    I don't argue that she owns it, in any legal sense. I absolutely wouldn't want my opinion on this supported by legal policy. It should not be possible to legally protect plot skeletons, themes, etc. In fact, I think that a substantial percentage of fan fiction should be legal, as long as it isn't sold in a way that causes trademark confusion.

    But legal and ethical are different things. I'd have to see Mary's work and Sue's work to really cement my idea that Sue may have "used up" creative resources that Mary created and that Mary, in my opinion, had an ethical right to keep to herself and use when she had more skill. But from your scenario, that's my initial feeling.

    I tend to feel that authors of well-known fictional worlds have big shoulders and that they can handle the fan fiction load on their frame. So I am much more comfortable with Mary's actions than Sue's, even though Mary's are much more likely to be illegal.

    Since my opinion isn't backed up by law, and should't be backed up by law, then every individual can do that balance for themselves, on a case by case basis.
     
  16. stevesh
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    stevesh Banned Contributor

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    I can't speak to the "illegal", but it seems like there would be certain copyright issues if the characters' and venues' names were carried over.

    I've never read any fan fiction (primarily because I've never been an ardent-enough fan of any source material to care). It seems to me to be the purview of writer-wannabes who don't have the talent to create the worlds, define the characters or imagine the conflicts of stories of their own, so they steal the product of others' creativity. That, I think, is where the "unethical" comes in - letting others do the literary heavy lifting, then sneaking in and grabbing some for themselves, whether they're eventually paid for it or not.

    Other writing forums where I'm a member don't permit fan fiction in their workshop/critique areas, and I'd like to see WF adopt the same policy, in the same way we don't allow discussion of pirated writing software.
     
  17. daemon
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    daemon Contributing Member Contributor

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    I still do not understand. What do you mean by "used up"? Say Mary writes her own novel based on the idea presented in the fanfic. In world A, she publishes it. In world B, Sue writes the novel described in the OP, then Mary publishes her novel.

    Is Mary's novel somehow a good novel in world A and a bad novel in world B?
     
  18. daemon
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    daemon Contributing Member Contributor

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    Therefore, you have no idea what it can accomplish, and your post is no better than "I have never seen _____; therefore, _____ does not exist."
     
  19. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    No, but in world B Mary's novel is a repetition of Sue's novel, and therefore there will be no pleasure in creating it, and odds are that it will not be created. Sue experienced the pleasure of creation, and she experienced it using Mary's idea as a starting point. The person who should have the pleasure of taking Mary's idea to a well-executed conclusion should be Mary.

    Now, maybe Sue's work is so very far from Mary's by the time it's done, that it may as well not have had anything to do with Mary's. But that's not how it sounds in your scenario.
     
  20. daemon
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    daemon Contributing Member Contributor

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    "Sue should not bother to entertain many readers with a good story because it might rob Mary of a very specific type of opportunity to entertain herself." Is that an accurate representation?

    And it all comes down to whether Sue's novel exhausts the potential ways to explore the premise of the fanfic, correct?
     
  21. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    In May:

    Sue: "So what are you doing for Labor Day?"
    Mary: "I thought I'd do a clambake-themed party. I can't actually bake the clams in sand, but I'm going to have buckets of sand, you know, for ambiance, and..."

    In August:

    Sue: Your clambake idea was fabulous! I had a 4th of July clambake and everybody loved it! I was able to get real sand and actually bake in it.
    Mary: You had a clambake?
    Sue: Yep, it was great! The book club loved it.
    Mary: You had a clambake for all the people you knew I was going to have a clambake for, but you did it better? Before I did mine?
    Sue: Yep! Thanks so much for the idea. Why do you look that way? Hey, what are you planning to do for Christmas? Mary? Mary? Where are you going?
     
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  22. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    "a good story" based on Mary's idea. Sue apparently has more writing talent, more marketing talent, more creative talent. Why can't Sue use her own resources to entertain her own readers with her own good story, rather than grabbing the one thing that Mary has?

    I think that if Sue follows the most obvious path of the fanfic, even if she doesn't completely exhaust it, I'd still have a problem with it.
     
  23. 123456789
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    123456789 Contributing Member Contributor

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    Doesn't sound illegal or unethical..maybe a little dillusional
     
  24. daemon
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    daemon Contributing Member Contributor

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    @ChickenFreak

    I never said Sue cannot come up with an idea on her own and write a novel based on it. Say for the sake of argument that she has already written novels from scratch and will continue to do so. She writes the novel described in the OP in addition to her other novels.

    Regarding the analogy: it is interesting but wildly inaccurate. (Which is not your fault; it is a result of the fact that the scenario in the OP is so abstract.) It would be more accurate if Mary throws a clambake party for her book club and never shows any interest in doing it again, and years later, Sue anonymously throws a clambake party for the entire city. The flyers mention that it is inspired by what Mary did a few years ago. There is also an interesting observation about the analogy: if people like clams and they like going to the beach, then what is to stop them from going to another one of Mary's parties?

    I think the fact that someone would even draw an analogy so inaccurate (again, not meant to disparage, but to comment on how the OP scenario came across) is pretty convincing evidence that it is impossible to theorize about the ethics of a situation like this until it actually happens, because conjecture is no substitute for complete knowledge. Which is what you were saying all along. :p
     
    Last edited: Aug 31, 2014
  25. Jack Asher
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    Jack Asher Wildly experimental Contributor

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    If I were to repaint the Mona Lisa, only I used a different pallet, different model, different background, different brush strokes, and different medium; could Da Vinci sue me for using the same color of red?

    I think if Mary were to litigate against Sue she would have a very hard time proving that only a single element makes an infringement case. The rumor in the art world is that you're subject matter has to make 3 major changes to the work. I don't know if that's actually true or not, but the rest of your changes are so drastic it really doesn't matter much.

    Edited to add:
    Sue should not, at any point, acknowledge that she based any of this off of Mary's story. As far as Sue is concerned any relationship to Mary's work is entirely coincidental.
     

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