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seawasp I've seen several examples recently of people unclear on the concept of copyright/Intellectual property -- in at least two directions! So that's the subject of today's lecture...
If you're not pretty familiar with the different forms of IP, the following few paragraphs may be enlightening. Otherwise, you can skip down to the part starting "BACK TO OUR MAIN LECTURE".
We use the term IP, for Intellectual Property, a lot. In the USA, there's really four different categories of IP: copyright (for written works like articles, books, etc. and also for specific images like paintings, and also for movies and other media), Trademark (which is supposed to be for specific marks/symbols/elements of representation that symbolize a particular product or company or organization -- e.g., a mark used in trade), Patent (which is a form of protection for a device, method, or system/process that is noticeably innovative and useful over the prior art in the field), and Trade Secret (which is a method, recipe, device, system, etc., which is not patented or written in any accessible location because it is believed that revealing the secret would remove a key competitive advantage and this advantage would not likely be served by a patent -- which is publicly available when granted).
Of these, Trade Secret is by its nature NOT protected by a lot of IP law. Its defense is that it's kept secret from any one who doesn't have need to know it, and once it's out in the wild it has no protection. (there IS punitive law for someone who deliberately violates the secrecy, of course, but that generally doesn't get your secret back into your possession).
The others are explicitly protected in law. Trademark's protection is based on ACTIVE USE and protection -- that is, the organization that holds the trademark rights is expected to (A) use the mark regularly and consistently for the product, service, etc., that it represents, and (B) to take legal action whenever they become aware that someone is using their mark without permission or in an incorrect fashion. Trademark is also SUPPOSED to be primarily for market recognition and discrimination -- that is, to ensure that people know when they see that mark that they are getting the genuine article. Current IP law has allowed a considerable blurring of this border, especially in the entertainment field, which has allowed companies to use trademark to provide extra protection where copyright would not necessarily suffice. I don't approve of this, but it's a fairly well established phenomenon, especially by major corporations, to trademark pretty much EVERYTHING to do with their fictional inventions.
Both Patent and Copyright are, at least in theory, limited in time of application. Patents in the USA are generally for twenty years (often with some adjustment for how long the process of patenting the invention took). Copyrights were originally, in the USA, for 14 years renewable for 14, then for 28 years, and have slowly crept upward fairly regularly, to the point that they are now much longer, with three specific categories: life of the author plus 70 years, or for 95 years from publication or 120 years from creation for works made for hire, anonymous, or pseudonymous work. The first is applicable to most specific-author(s) work, the others for corporate works or works made without clear knowledge of the author but that can be dated to some specific time.All in all, they're at about 100 years or so.
BACK TO OUR MAIN LECTURE!
In this case, I'm primarily concerned with copyright, with a slight sideline on the abuse of trademark to substitute for copyright.
There are two competing issues encountered in the abuse of copyright, one that has GENERALLY been done by the random public, and the other GENERALLY done by larger organizations/companies.
The first is a general belief -- with narrower or broader interpretations -- that "you don't need permission to write in someone's universe". In the modern era, there are at least two very likely drivers of this belief: 1) the frequent appearance of remakes of various things like Dracula, Oz books and movies, Frankenstein, War of the Worlds, Sherlock Holmes, etc., that vary widely in approach and consistency and imagery from the originals and each other, and that are clearly being made by different independent groups -- sometimes at competing, similar times; and 2) the rise of fanfic and of crossover universes, some of these official.
#1 is of course based in the existence of the PUBLIC DOMAIN. Public domain is "stuff that is no longer, or never was, under copyright". The existence of the public domain is, in fact, the PURPOSE of copyright. Copyright's purpose is to give creators a LIMITED period of complete financial and creative control over their works, in order to encourage the CREATION of more works, so that they will later go into, and enrich, the public domain -- supporting future creators as the work of past creators supported them.
Frankenstein, Dracula, the original 14 Oz books (but NOT, as of yet, the 1939 film The Wizard of Oz, so be careful!), Peter Pan (everywhere but the UK), Jane Austen's Pride and Prejudice, and many other older works are in the public domain, and anything in the public domain is absolutely free to use, change, reimagine, and abuse by anyone for any purpose whatsoever. It is the foundation of new works, the free resource for reference, inspiration, and material for all authors.
If a work is NOT in the public domain, it is under copyright, and you MUST have permission to copy it, or to make specific sorts of derivative works of it. There are some exceptions -- "parody", for instance, allows you to make fun of a work without needing permission, and "fair use" allows you to, for example, write a scholarly paper about The Lord of the Rings and quote parts of it relevant to your discussion.
Obviously, a company generally holds ALL the copyrights for their own characters and settings, so Disney, which also incorporates Marvel -- as an example -- can absolutely choose to present a story in which Aladdin's Genie does battle with Marvel's Impossible Man, or the Human Torch has a spat with Elsa. And they can sub-license their rights to others -- even others who also have sub-rights from different companies.
Thus we have LEGO, who have licensed the ability to use and present characters IN LEGO FORM and, presumably, primarily as humor/parody, from many, many different sources that normally would never cross over at all.
Fanfiction is an old, old thing -- one can indeed see many of the old myth cycles, especially of the Greeks, as a series of fanfics written about prior legend-fics; Dante's Inferno has been, not unreasonably, described as Dante's Mary-Sue Meets Virgil fanfic.
In the modern sense, it's still quite old -- people were writing Holmes-Watson fics even during Conan Doyle's lifetime -- and the standard Modern Fanfic Era is generally considered to have started with Star Trek (original series) fanzines, from whence come terms such as "slash" and "Mary Sue".
Let's be PERFECTLY, 100% CLEAR on this: FANFIC IS TECHNICALLY ILLEGAL. Unless you got permission from the copyright holder, or your fanfic is (like my Polychrome) based on something in the public domain, YOU ARE ABSOLUTELY BREAKING THE LAW by writing and sharing stories that are using other people's stuff.
BUT, to be equally clear -- an awful lot of individual authors, and even companies, don't really give a damn. This is -- ABSOLUTELY -- a change from when i was younger, because it was, prior to the USA's acceptance of the rules of the Berne Convention, accepted that Copyright shared Trademark's "enforcement" requirement -- that a failure to defend against ANY infringement would potentially weaken your rights to the IP.
THAT CHANGES IF YOU TRY TO MAKE MONEY FROM, and/or TAKE CREDIT for the thing you didn't own. Very, VERY few authors or companies will sit still for that; in the case of us authors, partly because we usually have enough trouble making ANY money from our work, so we'll be really peeved if someone else is taking money using our own work and we're not getting an agreed-upon cut.
This is absolutely true for me. If you want to write fanfic in any of my universes for your personal entertainment, and even share it with other people, that's just fine, as long as (A) you credit me for the universe, (B) you don't claim the rights to control what I later write about, even if it appears to be similar to yours, and (C) you're not trying to make money from it without getting my permission.
(B) is important because there are examples of fanfic writers claiming they have creative control over the original writer's universe because they had an idea, or wrote in some particular era of the writer's universe. The fact is that ideas are cheap and any idea you have for my universe is probably not too far from one I already have or may come up with on my own. In some cases I can't or won't do it (porn versions, or crossovers with OTHER universes that I don't own), but I've likely imagined something like it. You don't get to limit my designs and activities in my universe. If, by wild chance, you invent something so awesome that I want it, I assure you, I'll ask you about it and negotiate appropriate compensation.
Now, HERE'S THE OTHER SIDE.
Another group of people sincerely believe that an author/creator's rights are, and should be, forever, all time, in every way. Such people come in two flavors: private citizen, who simply find it to be morally wrong that anyone gets to "damage" another creator's work, or "steal" it, and companies, who really, really don't like the idea that one day this thing they own... isn't theirs any more.
The problem the first group isn't really considering is that there IS NO SUCH THING as original work. At best, we create new twists, or add new elements, into stories that in their fundamentals aren't much different from ones told around campfires before any of our countries were imagined. ALL of us, no matter how pedestrian or brilliant our works are viewed, are building on the work of others before us -- from, in short, the public domain that surrounds and fills our societies. Dragonball and Gensomaden Saiyuki and The Forbidden Kingdom all take, and mangle, the classic Journey To The West in their own ways -- and all three are, in their own way, original, even though they took the very same story as a basis.
This is how new art evolves: someone looks at something others have, and then sees it differently.
Eternal copyright/ ownership is, in essence, an INSULT to the people who came before us. It's both a declaration of exceptionalism in time -- that everything after X time is original and deserving of perpetual protection -- and a deliberate withholding of the same rights to the following generations.
As stated earlier, the point of copyright is, in reality, to promote the expansion of the public domain by encouraging creators to create -- through a limited, but significant, period of full control. AFTER that period, the work becomes available to others.
The expansion of copyright periods is, in my view, one of the main drivers of reduced RESPECT for copyright. In the original roughly 28 year duration, you had a lag of about one generation, in which someone growing up with a given work could, as an adult, build freely upon that. 28 years was also short enough to be in the general memory of the public, and to be RELEVANT in some fashion.
Corporations, however, REALLY don't want to give up control, and have been prime movers in the expansion of the duration. Which means that NO ONE ALIVE remembers the time when when significant stuff from their childhood became public domain. By original copyright rules, the original Star Wars movies, Star Trek (original, Next Generation, animated) and most of Babylon 5 would be public domain now.
It's unsurprising that people are less motivated to respect such rights when it will take longer than their likely lifetime to see stuff that influenced them in the public domain.
I strongly favor a return to the original term. It's long enough for commercial use, and short enough to both help motivate the creative person to keep building new stuff (which becomes copyrighted in turn), and to allow the next generations to build freely on what we've given them.
I will be releasing my works into Public Domain as they reach 28 years in age. Digital Knight will be the first, of course, and that will happen in 2031 -- about six years from now.
If you're not pretty familiar with the different forms of IP, the following few paragraphs may be enlightening. Otherwise, you can skip down to the part starting "BACK TO OUR MAIN LECTURE".
We use the term IP, for Intellectual Property, a lot. In the USA, there's really four different categories of IP: copyright (for written works like articles, books, etc. and also for specific images like paintings, and also for movies and other media), Trademark (which is supposed to be for specific marks/symbols/elements of representation that symbolize a particular product or company or organization -- e.g., a mark used in trade), Patent (which is a form of protection for a device, method, or system/process that is noticeably innovative and useful over the prior art in the field), and Trade Secret (which is a method, recipe, device, system, etc., which is not patented or written in any accessible location because it is believed that revealing the secret would remove a key competitive advantage and this advantage would not likely be served by a patent -- which is publicly available when granted).
Of these, Trade Secret is by its nature NOT protected by a lot of IP law. Its defense is that it's kept secret from any one who doesn't have need to know it, and once it's out in the wild it has no protection. (there IS punitive law for someone who deliberately violates the secrecy, of course, but that generally doesn't get your secret back into your possession).
The others are explicitly protected in law. Trademark's protection is based on ACTIVE USE and protection -- that is, the organization that holds the trademark rights is expected to (A) use the mark regularly and consistently for the product, service, etc., that it represents, and (B) to take legal action whenever they become aware that someone is using their mark without permission or in an incorrect fashion. Trademark is also SUPPOSED to be primarily for market recognition and discrimination -- that is, to ensure that people know when they see that mark that they are getting the genuine article. Current IP law has allowed a considerable blurring of this border, especially in the entertainment field, which has allowed companies to use trademark to provide extra protection where copyright would not necessarily suffice. I don't approve of this, but it's a fairly well established phenomenon, especially by major corporations, to trademark pretty much EVERYTHING to do with their fictional inventions.
Both Patent and Copyright are, at least in theory, limited in time of application. Patents in the USA are generally for twenty years (often with some adjustment for how long the process of patenting the invention took). Copyrights were originally, in the USA, for 14 years renewable for 14, then for 28 years, and have slowly crept upward fairly regularly, to the point that they are now much longer, with three specific categories: life of the author plus 70 years, or for 95 years from publication or 120 years from creation for works made for hire, anonymous, or pseudonymous work. The first is applicable to most specific-author(s) work, the others for corporate works or works made without clear knowledge of the author but that can be dated to some specific time.All in all, they're at about 100 years or so.
BACK TO OUR MAIN LECTURE!
In this case, I'm primarily concerned with copyright, with a slight sideline on the abuse of trademark to substitute for copyright.
There are two competing issues encountered in the abuse of copyright, one that has GENERALLY been done by the random public, and the other GENERALLY done by larger organizations/companies.
The first is a general belief -- with narrower or broader interpretations -- that "you don't need permission to write in someone's universe". In the modern era, there are at least two very likely drivers of this belief: 1) the frequent appearance of remakes of various things like Dracula, Oz books and movies, Frankenstein, War of the Worlds, Sherlock Holmes, etc., that vary widely in approach and consistency and imagery from the originals and each other, and that are clearly being made by different independent groups -- sometimes at competing, similar times; and 2) the rise of fanfic and of crossover universes, some of these official.
#1 is of course based in the existence of the PUBLIC DOMAIN. Public domain is "stuff that is no longer, or never was, under copyright". The existence of the public domain is, in fact, the PURPOSE of copyright. Copyright's purpose is to give creators a LIMITED period of complete financial and creative control over their works, in order to encourage the CREATION of more works, so that they will later go into, and enrich, the public domain -- supporting future creators as the work of past creators supported them.
Frankenstein, Dracula, the original 14 Oz books (but NOT, as of yet, the 1939 film The Wizard of Oz, so be careful!), Peter Pan (everywhere but the UK), Jane Austen's Pride and Prejudice, and many other older works are in the public domain, and anything in the public domain is absolutely free to use, change, reimagine, and abuse by anyone for any purpose whatsoever. It is the foundation of new works, the free resource for reference, inspiration, and material for all authors.
If a work is NOT in the public domain, it is under copyright, and you MUST have permission to copy it, or to make specific sorts of derivative works of it. There are some exceptions -- "parody", for instance, allows you to make fun of a work without needing permission, and "fair use" allows you to, for example, write a scholarly paper about The Lord of the Rings and quote parts of it relevant to your discussion.
Obviously, a company generally holds ALL the copyrights for their own characters and settings, so Disney, which also incorporates Marvel -- as an example -- can absolutely choose to present a story in which Aladdin's Genie does battle with Marvel's Impossible Man, or the Human Torch has a spat with Elsa. And they can sub-license their rights to others -- even others who also have sub-rights from different companies.
Thus we have LEGO, who have licensed the ability to use and present characters IN LEGO FORM and, presumably, primarily as humor/parody, from many, many different sources that normally would never cross over at all.
Fanfiction is an old, old thing -- one can indeed see many of the old myth cycles, especially of the Greeks, as a series of fanfics written about prior legend-fics; Dante's Inferno has been, not unreasonably, described as Dante's Mary-Sue Meets Virgil fanfic.
In the modern sense, it's still quite old -- people were writing Holmes-Watson fics even during Conan Doyle's lifetime -- and the standard Modern Fanfic Era is generally considered to have started with Star Trek (original series) fanzines, from whence come terms such as "slash" and "Mary Sue".
Let's be PERFECTLY, 100% CLEAR on this: FANFIC IS TECHNICALLY ILLEGAL. Unless you got permission from the copyright holder, or your fanfic is (like my Polychrome) based on something in the public domain, YOU ARE ABSOLUTELY BREAKING THE LAW by writing and sharing stories that are using other people's stuff.
BUT, to be equally clear -- an awful lot of individual authors, and even companies, don't really give a damn. This is -- ABSOLUTELY -- a change from when i was younger, because it was, prior to the USA's acceptance of the rules of the Berne Convention, accepted that Copyright shared Trademark's "enforcement" requirement -- that a failure to defend against ANY infringement would potentially weaken your rights to the IP.
THAT CHANGES IF YOU TRY TO MAKE MONEY FROM, and/or TAKE CREDIT for the thing you didn't own. Very, VERY few authors or companies will sit still for that; in the case of us authors, partly because we usually have enough trouble making ANY money from our work, so we'll be really peeved if someone else is taking money using our own work and we're not getting an agreed-upon cut.
This is absolutely true for me. If you want to write fanfic in any of my universes for your personal entertainment, and even share it with other people, that's just fine, as long as (A) you credit me for the universe, (B) you don't claim the rights to control what I later write about, even if it appears to be similar to yours, and (C) you're not trying to make money from it without getting my permission.
(B) is important because there are examples of fanfic writers claiming they have creative control over the original writer's universe because they had an idea, or wrote in some particular era of the writer's universe. The fact is that ideas are cheap and any idea you have for my universe is probably not too far from one I already have or may come up with on my own. In some cases I can't or won't do it (porn versions, or crossovers with OTHER universes that I don't own), but I've likely imagined something like it. You don't get to limit my designs and activities in my universe. If, by wild chance, you invent something so awesome that I want it, I assure you, I'll ask you about it and negotiate appropriate compensation.
Now, HERE'S THE OTHER SIDE.
Another group of people sincerely believe that an author/creator's rights are, and should be, forever, all time, in every way. Such people come in two flavors: private citizen, who simply find it to be morally wrong that anyone gets to "damage" another creator's work, or "steal" it, and companies, who really, really don't like the idea that one day this thing they own... isn't theirs any more.
The problem the first group isn't really considering is that there IS NO SUCH THING as original work. At best, we create new twists, or add new elements, into stories that in their fundamentals aren't much different from ones told around campfires before any of our countries were imagined. ALL of us, no matter how pedestrian or brilliant our works are viewed, are building on the work of others before us -- from, in short, the public domain that surrounds and fills our societies. Dragonball and Gensomaden Saiyuki and The Forbidden Kingdom all take, and mangle, the classic Journey To The West in their own ways -- and all three are, in their own way, original, even though they took the very same story as a basis.
This is how new art evolves: someone looks at something others have, and then sees it differently.
Eternal copyright/ ownership is, in essence, an INSULT to the people who came before us. It's both a declaration of exceptionalism in time -- that everything after X time is original and deserving of perpetual protection -- and a deliberate withholding of the same rights to the following generations.
As stated earlier, the point of copyright is, in reality, to promote the expansion of the public domain by encouraging creators to create -- through a limited, but significant, period of full control. AFTER that period, the work becomes available to others.
The expansion of copyright periods is, in my view, one of the main drivers of reduced RESPECT for copyright. In the original roughly 28 year duration, you had a lag of about one generation, in which someone growing up with a given work could, as an adult, build freely upon that. 28 years was also short enough to be in the general memory of the public, and to be RELEVANT in some fashion.
Corporations, however, REALLY don't want to give up control, and have been prime movers in the expansion of the duration. Which means that NO ONE ALIVE remembers the time when when significant stuff from their childhood became public domain. By original copyright rules, the original Star Wars movies, Star Trek (original, Next Generation, animated) and most of Babylon 5 would be public domain now.
It's unsurprising that people are less motivated to respect such rights when it will take longer than their likely lifetime to see stuff that influenced them in the public domain.
I strongly favor a return to the original term. It's long enough for commercial use, and short enough to both help motivate the creative person to keep building new stuff (which becomes copyrighted in turn), and to allow the next generations to build freely on what we've given them.
I will be releasing my works into Public Domain as they reach 28 years in age. Digital Knight will be the first, of course, and that will happen in 2031 -- about six years from now.
no subject
Date: 2025-03-22 09:40 pm (UTC)I've committed fanfic.
What you say here makes sense to me at the moment. Reserving the right to comment further and amend my opinion as time allows and evidence requires.
no subject
Date: 2025-03-22 11:21 pm (UTC)