Like this? (I think the analogy is actually pretty accurate if the roles are reversed, i.e. if someone makes this picture out of legos -- something not everyone would recognize or appreciate -- and then someone else paints Mona Lisa, which features a subject -- a human against a background of nature -- that everyone can recognize and appreciate.)
I see what you mean. The legos picture more accurately represents the scenario described by the OP. (See my post with the legos picture; I added a comment to it.)
I guess it would help if we knew any of the particulars of this plot point. If so we could help you unravel it to a copyright pleasing state. Or even tell you whether it could stand up to reproduction.
I appreciate the offer to help, and I am sure I will take it in the future when I am ready, but the intent of this thread is to see if any reasonable argument can be made for or against the scenario without knowing the details. It is part of my process of developing my personal philosophy about intellectual property, which interests me independently of my own writing projects.
Fanfic itself is not really legal. So the thing about Mary suing or copyright is moot. There's only a handful of plots in the world. And many archtypes do reoccur. As for ethical, I don't dictate ethics for others, but let me ask you these questions; are you friends with Mary? If Mary read your book, would she see her book in it? And if there was no chance of you getting in trouble, would you care if she did? Sometimes, it's not all about the legal or even ethical thing to do, but the people you alienate along the way. It sounds like you think you're stealing from Mary, and that's going to turn into a personal problem for you regardless if Mary or anyone else finds out.
I'm not a lawyer... (same disclaimer as everyone else) I understand that similar characters, plots, situations, settings, etc. can be used for parody and satire, under the legal precedent of fair use. I think a major difference here is when the intent of the work is the same. If the theme and point of the derived work is the same as the original, then (copyright laws being observed) Sue is in trouble. The Harvard Lampoon could publish Bored of the Rings because the intent was parody. The authors were not trying to step on Tolkien's toes, they were simply trying to make people laugh by parodying him. To me, it seems like Sue is trying to step on Mary's toes. This is not a parody or a satire. It is a direct statement of the same theme, using the same elements, with only the names and settings changed. What if I wanted to rewrite Lord of the Flies? Let's say I thought I could do it better and bring it to a wider audience (obviously not, but go with this, please). If I changed Jack to Jeff and Ralph to Rick, and the island to a remote valley somewhere, would you consider that okay? I mean, if I were trying to tell the same story with the same theme and the same point. No parody, no satire. Would you consider that ethical, or even creative? If I were to do that, and William Golding's estate were to sue me, would they have a case? I think they would.
You should change one of the main characters to Katniss, change the setting to a forest, and add a cornucopia and some distopian elements. Or did you choose a really poor example? As the above should show, subtle changes to the structure of the story don't count as infringement and may net you several million dollars.
Well, no. I've never been in prison, but I'm sure it exists, and I'm pretty sure I wouldn't like it. Looking at my post, though, I should have been able to express my opinion about the ethics of fan fiction (which I stand by) without personally insulting those who write it. My apologies to anyone I offended.
I've never read Hunger Games. My example was not really poor. And I'm not talking about legalities, though they may exist. I'm talking about ethics. What do you want on your tombstone? "I ripped somebody off"?
Most fanfics are technically illegal, and become genuinely illegal the moment you attempt to make money from them, assuming of course that you're using copyright characters belonging to somebody else. So if you write a fanfic about Harry Potter, as many, many people do, J. K. Rowling won't bother to sue you because that would be both pointless and mean-spirited, unless you actually try to make money for yourself using her intellectual property. In which case you'll find out very quickly that she can afford to hire much better lawyers than you can. So if anybody rips off your Harry Potter fanfic - well, so what? They can't legally make a penny from it any more than you can. Whether or not they've violated your intellectual property is beside the point; it's worthless, so any court-case would be idiotic, and might end up laying you open to litigation by J. K. Rowling, since she'd naturally assume that nobody would be stupid enough to sue somebody else for plagiarizing material they'd already technically plagiarized from her unless they were planning to make money from it. It's also the case that major publishers may ignore harmless fanfic, but if what you've written is the slightest bit controversial, and your court-case draws a great deal of attention to it, they'll sue you until there's nothing left of you but your empty smoldering cartoon boots! Can you imagine the consequences if you wrote a story about Batman and Aquaman's secret gay relationship, published it on some website where it would normally be lost in the morass of dreck, and then got worldwide headlines by suing somebody who ripped it off? Hint: DC would NOT be altogether happy... So, in a nutshell, in most countries, including the USA, everything you create and put into any form readable by others is your intellectual property and you have automatic copyright. But if by doing so you infringe somebody else's copyright, your legal rights are kind of irrelevant. PS:
There are hundreds of vampire novels out there, most of them follow a very similar ruberic, and no one considers the use of a vampire to be copyrighted material. If you really get in to romance novels there's only a few plots out there that get rehashed again and again. My work could be considered derivative of Jim Butcher, but he's derivative of Douglas Adams, who has characters derivative of Doctor Who, so the whole thing is a giant circle. Romeo and Juliette was actually based on a much play 30 years older called The Tragical History of Romeus and Juliet. Shakespeare only wrote four plays that were completely original material, (Love's Labour's Lost, A Midsummer Night's Dream, The Merry Wives of Windsor and The Tempest), and Midsummer Night is based on established folk characters.
@minstrel @Jack Asher Using Lord of the Flies as an analogy, imagine a novel like this: A group of men and one woman go on an expedition in a cave. They become stranded when boulders dislodged by an earthquake block the exit. With no way out, they decide to govern themselves. The main characters are a natural-born leader named Adolf, a hot-headed fighter named Bob, and a woman named Carol who has the best ideas, but no one listens to her. Due to their petty squabbles, their government slowly falls apart. They divide into two factions, one led by Alfred, one led by Bob. Carol attempts to bring them together, but she is killed by Bob's faction. In the end, they are discovered, and Alfred has an epiphany where he realizes that a perfect society is impossible. And that is where the similarities end. The men do not listen to Carol because they are sexist, not because they are boys who ostracize a fat asthmatic kid. There is also a character named Dave, a man, the only one who listens to her. Through their discussions, and their arguments with the others, sexism is examined. Their attempts to govern themselves are also much more well thought-out than in Lord of the Flies, e.g. instead of just passing a conch around, they invent a parliamentary procedure. They play sophisticated political games, which is how the novel examines the sources of corruption in politics. In the end, they are discovered not by a war ship, but by a group of refugees fleeing a civil war who use TNT to clear the boulders in order to live in the cave while they wait out the war. And most of all, there is no lord of the flies -- no pig's head on a spike, nor any concrete symbol of human depravity. There is no hunt for monsters, either. No failed attempt to flag down passersby. No pair of funny twins. That is pretty close to the kind of scenario I am thinking about. To answer your question, minstrel, I am not sure how you personally define parody and satire, but it is pretty clear that this novel is more than an attempt to replicate the success of Lord of the Flies. It makes very significant creative contributions of its own, and you might even consider it commentary with the message that Lord of the Flies is an overly simplistic depiction of how people govern themselves, or that it is sexist because it depicts an all-men's world. And that is what I intended to convey in the OP: Sue's novel is more than a simple attempt to replicate Mary's success, but a significant contribution of her own creativity on top of Mary's idea. But is that really what the world has come to? Have our legal and ethical systems become so convoluted and arbitrary that the only way to determine whether something as innocuous as a free ebook is a terrible injustice against someone is to engage in something as subjective and academic as literary criticism? I can understand an argument that if someone clearly loses the opportunity to make money from something he wrote, then he should be compensated. But that has nothing to do with this scenario. You have to get into wishy washy things like "pleasure of creation" and "stepping on toes" to begin to make an argument against it.
See my previous post, I know this was a double up. But literature is replete with authors who borrow and adapt. The most important thing to learn from the ones who have gone before is that you acknowledge the similarities, but never stoop to addressing them. Maybe everyone will know, maybe some of them will care. But at the end of the day James Cameron will never be paying back the guy who wrote Ferngully.
That is what I am realizing more and more. If you want to do something that you know is right, but you know it will be controversial, then just do what you can to stay aboveboard, do the right thing, and then ignore the haters naysayers because there is nothing you need to defend. The result of your action will prove them wrong, and if that does not convince them, then your rhetoric could not have convinced them. Still, the opposition stems from a few-hundred-year-old attitude that has become entrenched in culture, academia, and government, so I am interested in studying and critiquing it independently of my interest in writing fiction. (Which is the reason I am having this discussion, not because I actually want people to tell me if I am doing the right thing.)
This is the second time in a week that responding to a question makes me a hater. Why not just tell us in advance what our opinions should be? It would save us the trouble of responding to your request.
There are two contexts. In one context, I take action because I know it is right. If anyone tells me not to do it, or says I did something wrong, then I ignore them. In an unrelated context, I discuss the merits of an action out of academic interest. If anyone says the action is wrong, then I want to know why, because I am interested in arguments I might not have heard before, and I am interested in debating them. This is the second context. That is why I used the names "Mary" and "Sue" in the OP -- it is not a lazy form of SWIM; it is meant to direct your attention to the principles behind the action. Do you disagree with my response to your analogy?
Let me start by saying that my post is based on the information you've provided. In real life, this is looked at on a case-by-case basis. Also, I'm not a lawyer (yet), and I don't study copyright law. First, I'd like to say that a lot of authors don't bother taking legal action when it comes to fan fiction. Of course, they could, and if they do, you would have to look at four things to determine fair use. The four things are purpose of the use, nature of the original work, the amount of original work used in the fan fiction piece, and the effect the fan fiction piece has on the market of the original. Like I said, this is looked at on a case-by-case basis. Based on what you've written, I wouldn't consider it illegal or unethical. Given how the story has been significantly reworked, etc., there's enough evidence to suggest that Sue's work is very different from either Mary's or the original author's. Also, Sue's work has no effect on the market of either of those works. Really, the key issue is whether Sue's work can be seen as a replacement for Mary's work (or the original work) or if it stands on its own as a new and different work. I think it's the latter. Again, this is just based on the info you've given.
I absolutely do. Is there any point in my detailing why, or would doing so just grant me another "hater" hat? To put this another way, if you want a discussion, it's unwise to call people names for participating in that discussion.
Dude. I did not even come close to calling you a hater. I reserve that term for people who give me trouble for my decisions. This thread is not about my decisions; it is about a concept. I fully realize that you are just expressing an opinion and not attacking me or trying to tell me what to do. I asked for that opinion, and even though I disagree with it, I respect it, which is why I care enough to respond to it. Yes, there is a point in detailing why you disagree with my response to your analogy. For anyone following along -- I hate when I start reading a thread and I cannot figure out what people are talking about -- I am referring to this analogy and this response.
New question for everyone: if you believe in intellectual property, then do you think Sue's novel is now Mary's intellectual property? Is it a mix of Sue's and Mary's intellectual property? Do you think it is possible for Sue to donate her intellectual property to Mary by saying writing something in the preface like "Mary wrote [link to fanfic], and although she did not write this book, the author of this book declares that it is Mary's intellectual property"?
My objection has nothing to do with whether Sue can come up with an idea. In fact, the fact that Sue can come up with ideas makes me even less sympathetic to Sue. Sue apparently has writing ability, creative ability, marketing ability and ideas. Given all those resources, why does she have to reach into Mary's much more sparsely filled bag of resources and take one from her? Do you know for certain that Mary has completely finished with her idea and has no intent of improving on it or expanding on it? The fact that she "published" fanfiction doesn't mean that she won't improve or expand on that piece later. > because conjecture is no substitute for complete knowledge. > Which is what you were saying all along. Yes. To me, your orginal post suggested that Sue was doing essentially the same thing that Mary did, but was doing it "right". As in, "Oh, this is such a cute little concept you came up with. Let me do you the favor of re-doing all your work, but this time I'll do it well, instead of the sloppy job you made of it. Don't worry, I'll point to your original so that everyone can compare your work unfavorably with my superior version." If Sue's creation is only inspired by Mary's creation, but she has created something fundamentally different--different not just in quality, but in its fundamental nature--that's different and I don't have a problem with it. Example: If I were to read Patricia Wentworth's story The Summerhouse and from it get the idea of a toxic parent being murdered, that would just be inspiration, and I wouldn't object to it. But if my work's plot has a similar progression and the novel has a similar structure--girl meets boy in backstory, girl and boy break in backstory up due to girl's mother, girl meets boy again years later in story opening, girl and boy plan to marry again, girl's mother throws tantrum, girl's mother turns up dead in the same physical location where girl and boy decided to get married, evidence against boy is found in that location, etc., etc.--then I would feel that I was stealing someone else's work. Not in a legal sense, but in an ethical sense. And I wouldn't feel all that much better if it were girl and girl, and if the tantrumming mother were a tantrumming father, and if the little village setting were instead a futuristic colony on Mars. In fact, what I just did is one of the ways that I would decide if I were stealing--if I can point to each major element of the original story and clearly point to the analogous element in the new story, then I definitely feel that I'm stealing. Now, sometimes the whole point is to steal the spine of the story, and to clothe it in something new that makes you see it more clearly. Romeo and Juliet in West Side Story's clothes, for example. Macbeth in .....you know, that Kurasawa movie. Taking a well-known plot that already echoes for your readers, and shifting it so that they can see different facets of it. But that's not the vibe that I got from your original scenario. To me, I got the vibe of, "Oh, that's kind of cute, but, eew. You're really incompetent, aren't you? I'll do you and the world the favor of doing it right this time." On the "hater" thing: "Hater", as far as I understand the definition, is a top-to-bottom condemnation of someone's entire personality and character. When you call someone a "hater" merely for disagreeing with your course of action, that strikes me as...well, it seems to suggest an immensely high opinion of your own course of action, and a lack of tolerance for any sort of disagreement. You can call the person disagreeing with you picky, or over-strict, or pessimistic, or disagreeable, but "hater"? It just seems so very overblown. To me, it has a sort of feel of royalty rearing back in incredulous shock.
No. While I disapprove of Sue taking Mary's ideas, I do not feel that that gives Mary any ownership whatsoever over what Sue has done with those ideas. The work may legally be a tangle of Mary's work and Sue's work, and it may not be publishable until both consent, but Mary doesn't own Sue's work. Sue can, as far as I know, give all copyright rights to Mary, yes. I don't think that your exact phrasing would do the job, but I'm sure it can be done.
