28 May 2010


I've just run into another example of why the debate over fanfic can never advance, reach any kind of conclusion, or anything else. Both "sides" are too often intellectually dishonest. On the one hand, there are commercial exploiters (primarily; sometimes it's the authors, but usually it's an exploiter like D*sney) that try to claim too much as the original work/derivative of the original work. One excellent example of that is the original Air Pirates litigation, in which D*sney succeeded — wrongly — in suppressing cultural criticism that in part referenced its overweening, hypocritical commercialism.

Then (HT: Making Light) there's the opposite problem: "Proponents" of fanfic who redefine the term "fanfic" to include "good" derivative works. It's a lot easier to argue that the only color you need for your new car is "black" when you redefine "black" to mean "anything except pure white"... just as it is a lot easier to argue that "self-publishing is always a sensible business plan for unpublished novelists" when you redefine "self-publishing" to include a lot of works/authors that, well, weren't involved with self-publishing as that term is understood today.

So, turning to this particular bit of hypocrisy, and assuming arguendo the characterization of the "source work" for each example is accurate (at least three of them are not or are literally correct but misleading), organized by group:

  1. The first group:
    • Smiley (A Thousand Acres), Brooks (March), Larsen (Rent), and Corigliano (Ghosts of Versailles) are based on works that were long in the public domain under every conceivable measure of "public domain." Even under the French concept of droit morale, the heirs of Pierre Beaumarchais would have no claim.
    • Rodgers and Hammerstein (South Pacific) was done with authority from the creator.
    • Sondheim (Sunday in the Park With George) is a bad example legally: At the time that Sondheim did his work, New York recognized "rights of publicity" and "rights of privacy" in commercial works of fiction even less than it does now... and today, still, it does so less than virtually every other state, let alone the European Union. Then there are questions of authorization; of dealing with the dead; etc., etc., etc. In many ways, this more resembles "The Girl From Ipanema" than anything else.

    In the first innings, all six wickets are down.

  2. The second group:
    • Rhys (Wide Sargasso Sea), Bernstein (West Side Story), "literally hundreds of published Jane Austen fan fiction," Gardner (Grendel), "[o]ther drastically varying fanfictions of The Phantom of the Opera," the various derivatives of Arthurian legand, the Homerian fanfic, the Aeneid, and virtually every other example in this group (except those I'm going to discuss below), are based on works that were long in the public domain under every conceivable measure of "public domain."
    • Greed (1924) was done at a time that motion pictures were not clearly separate works; the Townsend Amendment (1912), which brought film into the realm of copyright issues, was still being interpreted by the courts, as the example of the original film of The Wizard of Oz demonstrates all too clearly, and the entire concept of "derivative works" was still being developed in the crazy courts of 1920s New York.
    • Ah, Murnau (Nosferatu). That's actually a lawyer's wet dream, in many ways: There are so many arguments on both sides that it all comes down to ill-considered (and ill-translated!) statements made concerning not the conception of the film, but the financing for its production. Maybe a good example; maybe not; but it is so parallel to Stoker's Dracula that it's not fanfic. Leg before wicket.
    • Guare (Six Degrees of Separation), Zelazny (A Night in the Lonesome October), and Marlowe (The Lighthouse at the End of the World) are bad examples for much the same reason as is the Sondheim.
    • Lerner (My Fair Lady) is a much tougher case. There are elements of piracy, with echoes of the problems of Gilbert and Sullivan, in its ancestry; there are elements of multiple-source ancestry; and there is a variety of other factual and legal reasons that this isn't a good example of anything like "fanfic." Leg before wicket.
    • OK, maybe here's one: Whether it qualifies as "fanfic" or not, The Magnificent Seven raises at least arguable issues concerning authorization from Kurosawa. Damn, it's not a clean sweep.

    Through two innings, all but one (or arguably two) wickets are down.

  3. The third group:
    • Parody is not fanfic. They are completely separate considerations. And whether or not one agrees with how "parody" is constrained in copyright, trademark, and publicity law, that's the law. This excludes Tina Fey's portrayals of Sarah Palin.
    • The obsession with treating "The Girl From Ipanema" and other RPF as "fanfic" continues to run rampant here, this time including Malkovich (who authorized it anyway!) and Brite (Plastic Jesus).
    • Flint (the 1632 universe), Scorsese (The Depahted), and Strange New Worlds are all authorized by the creator/rightsholder.
    • Cleolinda Jones's works are both parodies and legitimate critical commentary... and, above all, they're more nonfictional than fictional in any event.

    The final score is harder to calculate, as the second group (in particular) tried to refer to entire classes of works as if they are examples of fanfic without being very specific on what it takes to qualify for that class. One thing that I can say, though: Out of the entire list, there are only one, or possibly two, runs scored. That's just not cricket.

This only undermines arguments in favor of fanfic. Dammit, there are some arguments in favor of fanfic, and inspiration, and crossover works, and parody. But advocates don't do themselves any favors by being intellectually dishonest in redefining the terms for "debate" to their advantage. Instead, they should stick to the most-commonly-understood meaning of "fanfic" if they want to advocate it: Derivative fictional works based upon in-copyright fictional settings and characters without explicit authorization (either per-work or in general) from the creator. Arguing that an outlier demonstrates the validity of the entire core is just... stupid.

RPF (real-person fiction) is parallel to, but not the same as, fanfic. Rights of publicity and privacy sound, to the unsophisticated, as if they are direct analogs of copyright and trademark/unfair competition. They are not; historically, they don't even come close to having the same origin, either factually or doctrinally. And, on top of that, there's a huge distinction between "the real person is now dead, and therefore fair game" (but not in California or Tennessee!) and "the source work continues to exist, and may even have a continuing commercial life, but it's out of copyright and can therefore be directly exploited by others." They just aren't the same argument, and conflating them (as was done in Aja's LJ post) does nobody any good.

General references to "remixing" as supporting the "fanfic" argument are, similarly, no more helpful. For one thing, "remixing" in fictional works is a vastly different effort and enterprise from "remixing" in music; care to take a guess where most of the legal doctrine about "remixing" comes from (hint: 2Live Crew might have something to do with it)? Too, the very methods are so distinct that I don't think "remixing" of fictional works should even be called "remixing"... because the term "remix" essentially originates in the musical world and is based upon understandings of quotation, allusion, and influence that are on the one hand unique to music and on the other actually inconsistent with those understandings in fiction. "Art" is not "art" any more than "parts is parts."

Redefining the terms of debate to allude to something that can't be argued against is one of the oldest, and least reputable, fallacies:

  • The following works are objectively "art" of independent merit, or at least commercial success.
  • Each of those following works has substantial inspiration — sometimes being derivative works — from some other work.
  • Artists should never have to obtain authorization — whether in advance or not — for unfairly competing with other artists or for drawing their inspiration from anything that comes to their attention.
  • Therefore, fanfic is inherently a good thing, because fanfic also has substantial inspiration — sometimes being derivative works — from some other work, and authorization is irrelevant.

Convincing me that fanfic is inherently, and without exception, a "good thing," is going to require facts and arguments that won't be spotted as fallacious by first graders. Stomping around and saying "but that's what I want it to mean!" doesn't change reality.

Does that mean that I think fanfic is inherently evil? Not at all; as I've pointed out fairly recently, some "original works" cry so desperately for fanfic-like parodies that it seems criminal not to do so. But not all parody is fanfic; neither is it really "fanfic" for purposes of the argument over unauthorized fanfic once it has been authorized, even if it was not authorized at the time it was written.

In a literary-theoretical sense, the fanfic argument reflects the continuing battle over the definitions of "author" and "authorship" even more than it reflects intellectual property and unfair competition law. To choose the example that's raising the most ire at this moment, "Diana Gabaldon" the person is not the same thing as "Diana Gabaldon" the author (although there's considerable overlap), and "Diana Gabaldon's Outlander works" are not the same thing as either the person or the author (although there's arguably some overlap and lots of sense of ownership). And, of course, both the law and the financial aspects of the entertainment industry simply don't care about either cultural or artistic imperatives; that's not their purpose, and trying to pretend otherwise just leads to... fanfic wank. When, that is, the wankers (of both preferences) can find something to sustain themselves; I find most of the arguments (of both preferences) quite limp and incapable of arousing anyone else. They might all consider starting by erecting their arguments based on reality instead of surreality. I do my best not to let such general futility keep me from seeing exceptions, but sometimes my patience gets exhausted.